PROFILE OF LCMLAW PARTNERS: ATTY. MANUEL J. LASERNA JR. -AND - ATTY. MYRNA CUEVA-MERCADER

PROFILE:

ATTY. MANUEL J. LASERNA JR.

-AND -

ATTY. MYRNA CUEVA-MERCADER

LASERNA CUEVA-MERCADER LAW OFFICES

Unit 15, Star Arcade, C.V. Starr Ave., Philamlife Village

Las Pinas City, Metro Manila, Philippines 1740;

Tel/Fax:  (+63) (2) 8462539, 8725443.

Mobile (SMS texts): (+63) (943) 3425978.

Email: lcmlaw@gmail.com, cc: mjlasernajr@gmail.com.

URL: http://lcmlaw1.blogspot.com; http://www.twitter.com/lcmlaw_ph;

http://www.facebook.com/lasernacuevamercaderlawoffices;

http://www.facebook.com/laspinascitylawyers.

ATTY.  MANUEL J. LASERNAJR.

Bar Exams - 1984, 3^rd Placer, 90.95%

Education - Master of Laws, UST, 1998-2000; Bachelor of Laws, FEU, 1984, Cum Laude; A.B. Journalism, UP Diliman, 1975; Non-Degree Management Course, Asian Inst. Of Management, 1978.

Scholarships -  Cocofed Law Scholar, 1980-84, FEU Graduate Studies Fellow, 1998-2000; Meralco Educational Grantee, 1971-73; High School Valedictorian, 1^st yr. To 4^th yr., FEU; Mentally Gifted Class, Grade 6.

Law Teaching Work - Professor of Law, FEU, since 1985-2006 (retired) - civil law, commercial law and international law.

Law Practice - Litigation (civil, commercial, criminal and administrative); and Appeals

ATTY. MYRNA CUEVA-MERCADER

Bar Exams - 1984, 87%

Education -  Doctor of Economics, UP and UST; Doctor of Business Admin., PUP; M.A. Economics, UP; Master of Business Admin., PUP; Bachelor of Laws, FEU, cum laude; B.S. Commerce, Magna Cum Laude; Certified Public Accountant (CPA); Licensed Real Estate Broker.

Scholarships - Central Bank Scholar, MS Econ., UP; Magna Cum Laude, BSC, PUP; Cum Laude, Ll.B., FEU; Honor Student, High School & Elem.

Law Teaching Work - Professor of Law, FEU, 1985-2006 (retired) -civil law, commercial law and tax law.

Law Practice - Litigation (civil, commercial, criminal and administrative); and Appeals.

Local and fiscal autonomy granted to LGUs. - G.R. No. 195390, December 10, 2014

See -  G.R. No. 195390, December 10, 2014 - GOV. LUIS RAYMUND F. VILLAFUERTE, JR., AND THE PROVINCE OF CAMARINES SUR, Petitioners, v. HON. JESSE M. ROBREDO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Respondent. : DECEMBER 2014 - PHILIPPINE SUPREME COURT JURISPRUDENCE - CHANROBLES VIRTUAL LAW LIBRARY





"x x x.



The assailed memorandum circulars
do not transgress the local and fiscal
autonomy granted to LGUs.  

The petitioners argue that the assailed issuances of the respondent interfere with the local and fiscal autonomy of LGUs embodied in the Constitution and the LGC. In particular, they claim that MC No. 2010-138 transgressed these constitutionally-protected liberties when it restricted the meaning of “development” and enumerated activities which the local government must finance from the 20% development fund component of the IRA and provided sanctions for local authorities who shall use the said component of the fund for the excluded purposes stated therein.³³ They argue that the respondent cannot substitute his own discretion with that of the local legislative council in enacting its annual budget and specifying the development projects that the 20% component of its IRA should fund.³⁴

The argument fails to persuade.

The Constitution has expressly adopted the policy of ensuring the autonomy of LGUs.³⁵ To highlight its significance, the entire Article X of the Constitution was devoted to laying down the bedrock upon which this policy is anchored.

It is also pursuant to the mandate of the Constitution of enhancing local autonomy that the LGC was enacted. Section 2 thereof was a reiteration of the state policy. It reads, thus:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.

Verily, local autonomy means a more responsive and accountable local government structure instituted through a system of decentralization.³⁶ In Limbona v. Mangelin,³⁷ the Court elaborated on the concept of decentralization, thus:

[A]utonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments “more responsive and accountable,” and “ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.” At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. x x x.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments [sic] units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. x x x.³⁸ (Citations omitted)

To safeguard the state policy on local autonomy, the Constitution confines the power of the President over LGUs to mere supervision.³⁹ “The President exercises ‘general supervision’ over them, but only to ‘ensure that local affairs are administered according to law.’ He has no control over their acts in the sense that he can substitute their judgments with his own.”⁴⁰ Thus, Section 4, Article X of the Constitution, states:

Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

In Province of Negros Occidental v. Commissioners, Commission on Audit,⁴¹ the Court distinguished general supervision from executive control in the following manner:

The President’s power of general supervision means the power of a superior officer to see to it that subordinates perform their functions according to law. This is distinguished from the President’s power of control which is the power to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the President over that of the subordinate officer. The power of control gives the President the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.⁴² (Citations omitted)

It is the petitioners’ contention that the respondent went beyond the confines of his supervisory powers, as alter ego of the President, when he issued MC No. 2010-138. They argue that the mandatory nature of the circular, with the threat of imposition of sanctions for non-compliance, evinces a clear desire to exercise control over LGUs.⁴³

The Court, however, perceives otherwise.

A reading of MC No. 2010-138 shows that it is a mere reiteration of an existing provision in the LGC. It was plainly intended to remind LGUs to faithfully observe the directive stated in Section 287 of the LGC to utilize the 20% portion of the IRA for development projects. It was, at best, an advisory to LGUs to examine themselves if they have been complying with the law. It must be recalled that the assailed circular was issued in response to the report of the COA that a substantial portion of the 20% development fund of some LGUs was not actually utilized for development projects but was diverted to expenses more properly categorized as MOOE, in violation of Section 287 of the LGC. This intention was highlighted in the very first paragraph of MC No. 2010-138, which reads:

Section 287 of the Local Government Code mandates every local government to appropriate in its annual budget no less than 20% of its annual revenue allotment for development projects. In common understanding, development means the realization of desirable social, economic and environmental outcomes essential in the attainment of the constitutional objective of a desired quality of life for all.⁴⁴ (Underscoring in the original)

That the term development was characterized as the “realization of desirable social, economic and environmental outcome” does not operate as a restriction of the term so as to exclude some other activities that may bring about the same result. The definition was a plain characterization of the concept of development as it is commonly understood. The statement of a general definition was only necessary to illustrate among LGUs the nature of expenses that are properly chargeable against the development fund component of the IRA. It is expected to guide them and aid them in rethinking their ways so that they may be able to rectify lapses in judgment, should there be any, or it may simply stand as a reaffirmation of an already proper administration of expenses.
The same clarification may be said of the enumeration of expenses in MC No. 2010-138. To begin with, it is erroneous to call them exclusions because such a term signifies compulsory disallowance of a particular item or activity. This is not the contemplation of the enumeration. Again, it is helpful to retrace the very reason for the issuance of the assailed circular for a better understanding. The petitioners should be reminded that the issuance of MC No. 2010-138 was brought about by the report of the COA that the development fund was not being utilized accordingly. To curb the alleged misuse of the development fund, the respondent deemed it proper to remind LGUs of the nature and purpose of the provision for the IRA through MC No. 2010-138. To illustrate his point, he included the contested enumeration of the items for which the development fund must generally not be used. The enumerated items comprised the expenses which the COA perceived to have been improperly earmarked or charged against the development fund based on the audit it conducted.

Contrary to the petitioners’ posturing, however, the enumeration was not meant to restrict the discretion of the LGUs in the utilization of their funds. It was meant to enlighten LGUs as to the nature of the development fund by delineating it from other types of expenses. It was incorporated in the assailed circular in order to guide them in the proper disposition of the IRA and avert further misuse of the fund by citing current practices which seemed to be incompatible with the purpose of the fund. Even then, LGUs remain at liberty to map out their respective development plans solely on the basis of their own judgment and utilize their IRAs accordingly, with the only restriction that 20% thereof be expended for development projects. They may even spend their IRAs for some of the enumerated items should they partake of indirect costs of undertaking development projects. In such case, however, the concerned LGU must ascertain that applicable rules and regulations on budgetary allocation have been observed lest it be inviting an administrative probe.

The petitioners likewise misread the issuance by claiming that the provision of sanctions therein is a clear indication of the President’s interference in the fiscal autonomy of LGUs. The relevant portion of the assailed issuance reads, thus:

All local authorities are further reminded that utilizing the 20% component of the Internal Revenue Allotment, whether willfully or through negligence, for any purpose beyond those expressly prescribed by law or public policy shall be subject to the sanctions provided under the Local Government Code and under such other applicable laws.⁴⁵

Significantly, the issuance itself did not provide for sanctions. It did not particularly establish a new set of acts or omissions which are deemed violations and provide the corresponding penalties therefor. It simply stated a reminder to LGUs that there are existing rules to consider in the disbursement of the 20% development fund and that non-compliance therewith may render them liable to sanctions which are provided in the LGC and other applicable laws. Nonetheless, this warning for possible imposition of sanctions did not alter the advisory nature of the issuance.

At any rate, LGUs must be reminded that the local autonomy granted to them does not completely severe them from the national government or turn them into impenetrable states. Autonomy does not make local governments sovereign within the state.⁴⁶ In Ganzon v. Court of Appeals,⁴⁷ the Court reiterated:

Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-government.⁴⁸

Thus, notwithstanding the local fiscal autonomy being enjoyed by LGUs, they are still under the supervision of the President and maybe held accountable for malfeasance or violations of existing laws. “Supervision is not incompatible with discipline. And the power to discipline and ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires.”⁴⁹

Clearly then, the President’s power of supervision is not antithetical to investigation and imposition of sanctions. In Hon. Joson v. Exec. Sec. Torres,⁵⁰ the Court pointed out, thus:

“Independently of any statutory provision authorizing the President to conduct an investigation of the nature involved in this proceeding, and in view of the nature and character of the executive authority with which the President of the Philippines is invested, the constitutional grant to him of power to exercise general supervision over all local governments and to take care that the laws be faithfully executed must be construed to authorize him to order an investigation of the act or conduct of the petitioner herein. Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but it at least implies authority to inquire into facts and conditions in order to render the power real and effective. x x x.”⁵¹ (Emphasis ours and italics in the original)

As in MC No. 2010-138, the Court finds nothing in two other questioned issuances of the respondent, i.e., MC Nos. 2010-83 and 2011-08, that can be construed as infringing on the fiscal autonomy of LGUs. The petitioners claim that the requirement to post other documents in the mentioned issuances went beyond the letter and spirit of Section 352 of the LGC and R.A. No. 9184, otherwise known as the Government Procurement Reform Act, by requiring that budgets, expenditures, contracts and loans, and procurement plans of LGUs be publicly posted as well.⁵²

Pertinently, Section 352 of the LGC reads:

Section 352. Posting of the Summary of Income and Expenditures. – Local treasurers, accountants, budget officers, and other accountable officers shall, within thirty (30) days from the end of the fiscal year, post in at least three (3) publicly accessible and conspicuous places in the local government unit a summary of all revenues collected and funds received including the appropriations and disbursements of such funds during the preceding fiscal year.

R.A. No. 9184, on the other hand, requires the posting of the invitation to bid, notice of award, notice to proceed, and approved contract in the procuring entity’s premises, in newspapers of general circulation, and the website of the procuring entity.⁵³

It is well to remember that fiscal autonomy does not leave LGUs with unbridled discretion in the disbursement of public funds. They remain accountable to their constituency. For, public office was created for the benefit of the people and not the person who holds office.

The Court strongly enunciated in ABAKADA GURO Party List (formerly AASJS), et al. v. Hon. Purisima, et al.,⁵⁴ thus:

Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve.⁵⁵

Thus, the Constitution strongly summoned the State to adopt and implement a policy of full disclosure of all transactions involving public interest and provide the people with the right to access public information.⁵⁶ Section 352 of the LGC is a response to this call for transparency. It is a mechanism of transparency and accountability of local government officials and is in fact incorporated under Chapter IV of the LGC which deals with “Expenditures, Disbursements, Accounting and Accountability.”

In the same manner, R.A. No. 9184 established a system of transparency in the procurement process and in the implementation of procurement contracts in government agencies.⁵⁷ It is the public monitoring of the procurement process and the implementation of awarded contracts with the end in view of guaranteeing that these contracts are awarded pursuant to the provisions of the law and its implementing rules and regulations, and that all these contracts are performed strictly according to specifications.⁵⁸

The assailed issuances of the respondent, MC Nos. 2010-83 and 2011-08, are but implementation of this avowed policy of the State to make public officials accountable to the people. They are amalgamations of existing laws, rules and regulation designed to give teeth to the constitutional mandate of transparency and accountability.

A scrutiny of the contents of the mentioned issuances shows that they do not, in any manner, violate the fiscal autonomy of LGUs. To be clear, “[f]iscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof.”⁵⁹

It is inconceivable, however, how the publication of budgets, expenditures, contracts and loans and procurement plans of LGUs required in the assailed issuances could have infringed on the local fiscal autonomy of LGUs. Firstly, the issuances do not interfere with the discretion of the LGUs in the specification of their priority projects and the allocation of their budgets. The posting requirements are mere transparency measures which do not at all hurt the manner by which LGUs decide the utilization and allocation of their funds.

Secondly, it appears that even Section 352 of the LGC that is being invoked by the petitioners does not exclude the requirement for the posting of the additional documents stated in MC Nos. 2010-83 and 2011-08. Apparently, the mentioned provision requires the publication of “a summary of revenues collected and funds received, including the appropriations and disbursements of such funds.” The additional requirement for the posting of budgets, expenditures, contracts and loans, and procurement plans are well-within the contemplation of Section 352 of the LGC considering they are documents necessary for an accurate presentation of a summary of appropriations and disbursements that an LGU is required to publish.

Finally, the Court believes that the supervisory powers of the President are broad enough to embrace the power to require the publication of certain documents as a mechanism of transparency. In Pimentel, Jr. v. Hon. Aguirre,⁶⁰ the Court reminded that local fiscal autonomy does not rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. The President, by constitutional fiat, is the head of the economic and planning agency of the government, primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs for the entire country.⁶¹

Moreover, the Constitution, which was drafted after long years of dictatorship and abuse of power, is now replete with numerous provisions directing the adoption of measures to uphold transparency and accountability in government, with a view of protecting the nation from repeating its atrocious past. In particular, the Constitution commands the strict adherence to full disclosure of information on all matters relating to official transactions and those involving public interest. Pertinently, Section 28, Article II and Section 7, Article III of the Constitution, provide:

Article II
Declaration of Principles and State Policies Principles
Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Article III
Bill of Rights
Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

In the instant case, the assailed issuances were issued pursuant to the policy of promoting good governance through transparency, accountability and participation. The action of the respondent is certainly within the constitutional bounds of his power as alter ego of the President.

It is needless to say that the power to govern is a delegated authority from the people who hailed the public official to office through the democratic process of election. His stay in office remains a privilege which may be withdrawn by the people should he betray his oath of office. Thus, he must not frown upon accountability checks which aim to show how well he is performing his delegated power. For, it is through these mechanisms of transparency and accountability that he is able to prove to his constituency that he is worthy of the continued privilege.



x x x."

Ripe for judicial review. - G.R. No. 195390, December 10, 2014

See - G.R. No. 195390, December 10, 2014 - GOV. LUIS RAYMUND F. VILLAFUERTE, JR., AND THE PROVINCE OF CAMARINES SUR, Petitioners, v. HON. JESSE M. ROBREDO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Respondent. : DECEMBER 2014 - PHILIPPINE SUPREME COURT JURISPRUDENCE - CHANROBLES VIRTUAL LAW LIBRARY





"x x x .

The present petition is ripe for
judicial review.

At the outset, the respondent is questioning the propriety of the exercise of the Court’s power of judicial review over the instant case. He argues that the petition is premature since there is yet any actual controversy that is ripe for judicial determination. He points out the lack of allegation in the petition that the assailed issuances had been fully implemented and that the petitioners had already exhausted administrative remedies under Section 25 of the Revised Administrative Code before filing the same in court.²²

It is well-settled that the Court’s exercise of the power of judicial review requires the concurrence of the following elements: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.²³

The respondent claims that there is yet any actual case or controversy that calls for the exercise of judicial review. He contends that the mere expectation of an administrative sanction does not give rise to a justiciable controversy especially, in this case, that the petitioners have yet to exhaust administrative remedies available.²⁴

The Court disagrees.

In La Bugal-B’laan Tribal Association, Inc. v. Ramos,²⁵ the Court characterized an actual case or controversy, viz:

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. The power does not extend to hypothetical questions since any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.²⁶ (Citations omitted)

The existence of an actual controversy in the instant case cannot be overemphasized. At the time of filing of the instant petition, the respondent had already implemented the assailed memorandum circulars. In fact, on May 26, 2011, Villafuerte received Audit Observation Memorandum (AOM) No. 2011-009 dated May 10, 2011²⁷ from the Office of the Provincial Auditor of Camarines Sur, requiring him to comment on the observation of the audit team, which states:

The Province failed to post the transactions and documents required under Department of Interior and Local Government (DILG) Memorandum Circular No. 2010-83, thereby violating the mandate of full disclosure of Local Budget and Finances, and Bids and Public Offering.

x x x x

The local officials concerned are reminded of the sanctions mentioned in the circular which is quoted hereunder, thus:

“Noncompliance with the foregoing shall be dealt with in accordance with pertinent laws, rules and regulations. In particular, attention is invited to the provision of Local Government Code of 1991, quoted as follows:chanroblesvirtuallawlibrary

Section 60. Grounds for Disciplinary Actions – An elective local official may be disciplined, suspended or removed from office on: (c) Dishonesty, oppression, misconduct in office, gross negligence or dereliction of duty.”²⁸

The issuance of AOM No. 2011-009 to Villafuerte is a clear indication that the assailed issuances of the respondent are already in the full course of implementation. The audit memorandum specifically mentioned of Villafuerte’s alleged non-compliance with MC No. 2010-83 regarding the posting requirements stated in the circular and reiterated the sanctions that may be imposed for the omission. The fact that Villafuerte is being required to comment on the contents of AOM No. 2011-009 signifies that the process of investigation for his alleged violation has already begun. Ultimately, the investigation is expected to end in a resolution on whether a violation has indeed been committed, together with the appropriate sanctions that come with it. Clearly, Villafuerte’s apprehension is real and well-founded as he stands to be sanctioned for non-compliance with the issuances.

There is likewise no merit in the respondent’s claim that the petitioners’ failure to exhaust administrative remedies warrants the dismissal of the petition. It bears emphasizing that the assailed issuances were issued pursuant to the rule-making or quasi-legislative power of the DILG. This pertains to “the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute.”²⁹ Not to be confused with the quasi-legislative or rule-making power of an administrative agency is its quasi-judicial or administrative adjudicatory power. This is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law.³⁰ In challenging the validity of an administrative issuance carried out pursuant to the agency’s rule-making power, the doctrine of exhaustion of administrative remedies does not stand as a bar in promptly resorting to the filing of a case in court. This was made clear by the Court in Smart Communications, Inc. (SMART) v. National Telecommunications Commission (NTC),³¹ where it was ruled, thus:

In questioning the validity or constitutionality of a rule or regulation issued by an administrative agency, a party need not exhaust administrative remedies before going to court. This principle applies only where the act of the administrative agency concerned was performed pursuant to its quasi-judicial function, and not when the assailed act pertained to its rule-making or quasi-legislative power. x x x.³²

Considering the foregoing clarification, there is thus no bar for the Court to resolve the substantive issues raised in the petition.



x x x."

2014 Bar exams results. FEU bar examinee is 8th placer.

See - San Beda College tops 2014 Bar exams





"x x x.

Justice Diosdado Peralta, 2014 Bar examinations chairman, announced the results.

A total of 1,126 out of 5,984 takers passed the exams. This is a passing rate of 18.82% – lower than 2013 figures when 22.18% or1,174 out of 5,593 examinees passed. The passing grade was 73%.

Below are the top 10 passers:

NAME	SCHOOL	GRADE
1. Irene Mae B. Alcobilla	San Beda College-Manila	85.5%
2. Christian A. Drilon	Ateneo de Manila University	85.45%
3. Sandra Mae T.Magalang	University of the Philippines	84.6%
4. Mark Leo P. Bejemino	University of the Philippines	84.55%
Gil, Ii E. Garcia	Ateneo de Davao University	84.55%
Reginald L. Laco	De La Salle-Lipa	84.55%
5. Michelle D. Liao	University of Cebu	84.5%
6. Jose Angelo A. David	San Beda College-Manila	84.45%
7. Adrian F. Aumentado	San Beda College-Manila	84.35%
8. Rhey David S. Daway	University of the Philippines	84.2%
Fideliz Cardellie B. Diaz	Far Eastern University-DLSU (Jurist Doctor-MBA)	84.2%
9. Jamie Liz F. Yu	University of the Philippines	84%
10. Tristan Matthew T. Delgado	Ateneo de Manila University	83.95%

The 2014 Bar exams were conducted on all Sundays of October. Of the 6,344 initial examinees, only 5,984 were able to finish until the last day. – Rappler.com

x x x."

With the dismissal of the administrative case, the CA correctly dismissed its criminal counterpart of perjury - G.R. No. 201643

See - G.R. No. 201643





"x x x.

Ineluctably, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts, which were the subject of the administrative complaint. The Court finds no cogent reason to depart from this rule. However, the crime of perjury for which Capulong was charged, requires a willful and deliberate assertion of a falsehood in a statement under oath or in an affidavit, and the statement or affidavit in question here is Capulong's SALNs. It then becomes necessary to consider the administrative charge against Capulong to determine whether or not he has committed perjury. Therefore, with the dismissal of Capulong's administrative case, the CA correctly dismissed its criminal counterpart since the crime of perjury which stemmed from misrepresentations in his SALNs will no longer have a leg to stand on.

x x x.:

When appellate court may review the findings of fact of the Ombudsman. - G.R. No. 201643

See - G.R. No. 201643





"x x x.

As a rule, it is the consistent and general policy of the Court not to interfere with the Ombudsman’s exercise of its investigatory and prosecutory powers. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Ombudsman but upon practicality as well. It is within the context of this well-entrenched policy that the Court proceeds to pass upon the validity of the preventive suspension order issued by the Ombudsman.25

While it is an established rule in administrative law that the courts of justice should respect the findings of 

fact of said administrative agencies, the courts may not be bound by such findings of fact when there is absolutely no evidence in support thereof or such evidence is clearly, manifestly and patently insubstantial; and when there is a clear showing that the administrative agency acted arbitrarily or with grave abuse of discretion or in a capricious and whimsical manner, such that its action may amount to an excess or lack of jurisdiction.26 These exceptions exist in this case and compel the appellate court to review the findings of fact of the Ombudsman.

In the instant case, the subsequent lifting of the preventive suspension order against Capulong does not render the petition moot and academic. It does not preclude the courts from passing upon the validity of a preventive suspension order, it being a manifestation of its constitutionally mandated power and authority to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The preventive suspension order is interlocutory in character and not a final order on the merits of the case. The aggrieved party may then seek redress from the courts through a petition for certiorari under Section 1,27 Rule 65 of the 1997 Rules of Court. While it is true that the primary relief prayed for by Capulong in his petition has already been voluntarily corrected by the Ombudsman by the issuance of the order lifting his preventive suspension, we must not lose sight of the fact that Capulong likewise prayed for other remedies. There being a finding of grave abuse of discretion on the part of the Ombudsman, it was certainly imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65.

The decision of the appellate court to proceed with the merits of the case is included in Capulong’s prayer 

for such "other reliefs as may be just and equitable under the premises." Such a prayer in the petition justifies the grant of a relief not otherwise specifically prayed for.28 More importantly, we have ruled that it is the allegations in the pleading which determine the nature of the action and the Court shall grant relief warranted by the allegations and proof even if no such relief is prayed for.29

Significantly, the power of adjudication, vested in the CA is not restricted to the specific relief claimed by the parties to the dispute, but may include in the order or decision any matter or determination which may be deemed necessary and expedient for the purpose of settling the dispute or preventing further disputes, provided said matter for determination has been established by competent evidence during the hearing. The CA is not bound by technical rules of procedure and evidence, to the end that all disputes and other 

issues will be adjudicated in a just, expeditious and inexpensive proceeding.1âwphi1

The requisites for the Ombudsman to issue a preventive suspension order are clearly contained in Section 2430 of R.A. No. 6770.31 The rule is that whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. In the very words of Section 24, the Ombudsman may preventively suspend a public official pending investigation if "in his judgment" the evidence presented before him tends to show that the official’s guilt is strong and if the further requisites enumerated in Section 24 are present.32The Court, however, can substitute its own judgment for that of the Ombudsman on this matter, with a clear showing of grave abuse of discretion on the part of the Ombudsman.

Undoubtedly, in this case, the CA aptly ruled that the Ombudsman abused its discretion because it failed to sufficiently establish any basis to issue the order of preventive suspension. Capulong’s non-disclosure of his wife’s business interest does not constitute serious dishonesty or grave misconduct. Nothing in the records reveals that Capulong deliberately placed "N/A" in his SALN despite knowledge about his wife’s business interest. As explained by Capulong, the SEC already revoked the registration of the corporations where his wife was an incorporator; hence, he deemed it not necessary to indicate it in his SALN.

x x x/"

TOP TEN Construction Clauses - The “Work” Clause | Saul Ewing LLP - JDSupra

See - TOP TEN Construction Clauses - The “Work” Clause | Saul Ewing LLP - JDSupra





"x x x.

Minimizing litigation risks

Precise contract specifications that are well-defined in every material respect combined with detailed contract administration can help narrow overly broad scope clauses and, thereby, reduce the likelihood of costly litigation over the scope of the work performed. Some suggestions:

• Incorporate a separate and clearly defined Scope of Work with remaining contract documents such as plans, specifications, general and supplemental conditions and minutes from kick-off meetings.
  • Define the deliverables in each phase and project objective; make them clearly measurable.
  • Clearly identify exclusions, retained services, unforeseen conditions, and trades outside the contractor’s control or under the owner’s control.
  • Predict the unpredictable: raise potential problems, even if highlighting them early in the project seems counterintuitive, to avoid bigger headaches later.
  • In design/build arrangements, identify milestone points at which to revisit the scope of the work as plans develop.
• Rank contract administration as paramount, particularly when bids are based on preliminary or incomplete plans and specifications and in design/build arrangements.
  • Identify administration milestones in the project planning schedule to document and verify changes in scope.
  • Vote early/vote often: scope problems tend to follow a project from its early stages, magnifying along the way. Address them early in the project and document the issues, negotiations and resolutions in a careful, detailed manner.

For more information

View Document(s):

• View it here x x x."

Smart Justice Australia - A better system to investigate police-related deaths

See - Smart Justice Australia - A better system to investigate police-related deaths





'x x x.

When someone dies as a result of actions by police, there is a strong public interest in getting to the truth of what happened, finding out whether police acted appropriately and learning how future deaths and injury might be prevented in the future.

It’s crucial that affected families and the general public have confidence in the impartiality and effectiveness of investigations into police-related deaths.

Victoria needs a policing system that builds community confidence.

We should establish an independent, civilian-led body that conducts investigations into police-related deaths. Variations on this model have been successfully implemented in New Zealand, Canada, the UK and Northern Ireland.

x x x."

Download this fact sheet below:

A better system to investigate police-related deaths

186 KB

The Future of Mediation | JAMS, The Resolution Experts - JDSupra

See - The Future of Mediation | JAMS, The Resolution Experts - JDSupra





"x x x.

So what can the history of commercial mediation in the United States tell us about the future of mediation globally?  I would posit that most developed countries outside of the United States will have an experience similar to the U.S., a slow but steady adoption of facilitated mediation as a faster, easier and less expensive alternative to protracted court cases.

There are many examples where this trend is beginning to pick up momentum around the world.  New commercial mediation centers have been launched in the past year alone in Brazil, Ecuador, Mexico, Egypt, Israel, Kuwait, India, Pakistan, South Korea and China just to name a few.  But the number of cases being handled in each of these locations can be counted by the dozens, where in the U.S. there are multiple ADR providers who routinely handle hundreds or thousands of mediations per year.

The most common driver behind the growth of commercial mediation is the growth of litigation as economies develop, which inevitably leads to court backlogs that can extend cases out to 10 years or more.  In extreme examples including India, it could take as long as 20 years to see a court case to its conclusion.  With around 15 judges for every million citizens and more than 31 million open cases, the concept of “catching up” is not in their future without a massive overhaul of the Indian legal system and courts, and a heavy dose of ADR.

A fascinating example to watch is China, where courts were not widely used for commercial disputes until recent years when the economy was opened up to foreign entities, free trade zones were established and modern court systems were set up.  What followed was a steep increase in the number of lawsuits, leading to the establishment of arbitration and mediation practices in law firms and the incorporation – with government support – of private mediation entities.

There are also examples of developed economies where the legal system is sufficiently well-oiled, access to courtrooms is relatively quick, and the need for third-party mediators is reduced.  This is true in Germany, where most cases are disposed of in a few months and a form of conciliation is an accepted part of commercial legal practice, and in France where there is a relatively large judiciary to move court cases along.

It is only logical that mediation will become one of the primary tools to resolve disputes in a large number of developed and developing countries where the practice has yet to take hold and court cases are slow and expensive.  But there are numerous headwinds slowing the adoption of mediation, including resistance by lawyers who are afraid it will reduce their income, court systems that are seen as corrupt or unfair and do not support mediation or uphold out-of-court agreements, and economics that do not provide sufficient financial incentives for trained mediators to thrive.

Even with these headwinds, commercial mediation will experience a slow but steady growth all over the globe in the next decades.  The result in fairness, cost savings and user satisfaction will create its own momentum.

x xx ."