Saturday, December 16, 2017
Report: Philippines dominates land-rights murders in 2017
See - Report: Philippines dominates land-rights murders in 2017
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"The Philippines recorded the highest number of killings related to land conflicts and struggles in 2017 amid a government crackdown on rural communities, a report by a rights group released Friday found.
In defending their right to land and resources, a total of 1,977 were victims of rights abuses from January to November 2017 in the Philippines, according to advocacy group PAN Asia Pacific.
Of that figure, 61 people were killed, 72 were arrested, six were victims of threats and physical assaults, while 1,838 have been displaced.
That also translates to six people killed every month.
The Philippines was followed by Brazil, which accounted for 22 cases of killings.
Most human rights violations monitored were reportedly perpetrated by state security forces conducting military operations under the Philippine government’s counter-insurgency programs “Oplan Kapayapaan” and “Oplan Bayanihan,” PANAP said.
PANAP added that some “industries and investments” exploiting land for resources were also involved in some cases.
“In countries where human rights violations have been already been rampant for years like the Philippines, for instance, the incidents of killings and other forms of repression targeting farmers, indigenous peoples and land activists and supporters have spiked dramatically this year,” PANAP said.
“Human rights and peasant organizations in the Philippines point to the military, paramilitary, and private security personnel as perpetrators of the killings, with more than half attributed to elements of the Armed Forces of the Philippines," it also said.
According to PANAP, the first recorded case of killing related to land struggles this year was the murder of Venie Diamante, a T’boli tribal chieftain who was shot dead by unknown assailants on January 5 in the southern Philippine province of South Cotabato.
The rights group then flagged the wave of killings under the Duterte administration following the collapse of peace talks with communist rebels.
They cited the November 28 murder of a farmer and a land rights activist who were gunned down while participating in a fact-finding probe into reported human rights abuses against farming communities in Negros Oriental.
“One month before the end of 2017, the Philippines sees no end in the current administration’s spate of killings,” PANAP said."
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Tuesday, December 12, 2017
Monday, December 11, 2017
32 Philippine substantive and procedural laws on property - By: Ma. Soledad Deriquito-Mawis, Sara Mae D. Mawis
See - 32 Philippine substantive and procedural laws on property
"x x x.
32 Philippine substantive and procedural laws on property
By: Ma. Soledad Deriquito-Mawis, Sara Mae D. Mawis - @inquirerdotnet
Philippine Daily Inquirer / 05:12 AM December 09, 2017
“Ignorance of the law excuses no one from compliance therewith” (Article 3, Civil Code of the Philippines). We cannot run away nor hide from them.
As laws permeate the core of our daily lives, may these these 32 statutory laws and administrative rules guide us in our day to day transactions.
1. Section 2, 1987 Philippine Constitution—the State owns all lands of the public domain
2. Section 3, 1987 Philippine Constitution—Classification of land of the
Public Domain
3. Section 5, 1987 Philippine Constitution—property rights or relations on ownership and extent of ancestral domain
4. Section 7, 1987 Philippine Constitution—general rule on the prohibition of aliens acquiring or holding land of the public domain
5.Articles 445 to 465, Civil Code of the Philippines—Right of Accession with Respect to Immovable Property
6. Art. 476 to 483, Civil Code of the Philippines—Quieting of Title
7.Articles 484 to 501, Civil Code of the Philippines—Co-Ownership
8.Articles 523 to 561, Civil Code of the Philippines—Possession and the Kinds Thereof
9. Articles 562 to 612, Civil Code of the Philippines—On Usufruct
10.Article 613 to 707, Civil Code of the Philippines—Laws on Easement
11.Articles 725 to 773, Civil Code of the Philippines—Laws on Donation
12.Articles 774 to 1105, Civil Code of the Philippines Laws on Succession
13.Art. 1106 to 1155, Civil Code of the Philippines Prescription
14.Articles 1440 to 1457, Civil Code of the Philippines Trusts
15.Articles 1458 to 1623 Laws on Sales
16.Articles 1642 to 1688, Civil Code of the Philippines Laws on Lease
17.Articles 2124 to 2139, Civil Code of the Philippines Laws on Mortgage
18.Republic Act no. 4726, “The Condominium Act (approved June 18, 1966)
19.Republic Act No. 6552, “Realty Installment Buyer Act” (approved: August 26, 1972.)
20.Presidential Decree No. 1216, Defining “Open Space” in Residential Subdivisions and Amending Section 31 of Presidential Decree No. 957 Requiring Subdivisions Owners to Provide Roads Alleys, Sidewalks, and Reserve Open Sace for Parks or Recreational Use (Signed: October 14, 1997)
21.Presidential Decree No. 1529, “Amending and Codifying the Laws Relative to Registration of Property and for Other Purposes (signed June 11, 1978)
22.Articles 74 to 148, The Family Code of the Philippines – Property Relations Between Husband and Wife (effective August 3, 1988)
23. Republic Act No. 6732, “An Act Allowing Administrative Reconstitution of Original Copies of Certificates of Titles Lost or Destroyed due to Fire, Flood and Other Force Majeure, Amending for the Purpose Section One Hundred Ten of Presidential Decree Numbered Fifteen Twenty Nine and Section Five of Republic Act Numbered Twenty Six” (Approved July 17, 1989)
24. Republic Act No. 7279, Urban Development and Housing Act of 1992.” (approved Approved: March 24, 1992)
25.Republic Act No. 7899, An Act Amending Section 4 and Section 16 of Republic Act Numbered Four Thousand Seven Hundred Twenty-Six Otherwise Known as “The Condominium Act” (approved: February 23, 1995)
26.Republic Act No. 8371, “The Indigenious Peoples Right of 1997 (approved: October 29, 1997)
27. Rule 67, Rules of Civil Procedure, re Expropriation (effective July 1, 1997)
28. Rule 68, Rules of Civil Procedure, re Foreclosure of Real Estate Mortgage (effective July 1, 1997)
29. A.M. No. 99-10-05-0 (December 14, 1999), as amended by A.M. 99-10-05-0, August 7, 2001), (Procedure In Extra-Judicial Foreclosure of Mortgage); Supreme Court Administrative Circular ADMINISTRATIVE CIRCULAR NO. 3-98, (a) Raffle of Extrajudicial Foreclosure of Mortgage Cases among Sheriffs and (b) Supplement to and Clarification of the Procedure in Extrajudicial Foreclosure of Mortgages in Different Locations Covering One Indebtedness. (February 5, 1998)
30. Republic Act No. 9646, “Real Estate Service Act of the Philippines” (approved: June 29, 2009)
31. Republic Ac 10023, “An Act Authorizing the Issuance of Free Patents to Residential Lands” (Approved: March 9, 2010)
32. Revised Implementing Rules and Regulations To Govern The Time of Completion of Subdivision and Condominium Projects Under Presidential No. 957, Otherwise known as “The Subdivision and condominium Buyers’ Protective Decree And All Other Projects Required by Law to be Registered with the Housing and Land Use Regulatory Board (approved October 1, 2015)
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It’s tough being a sheriff in the Philippines - By Joel R. San Juan
See - https://businessmirror.com.ph/its-tough-being-a-sheriff-in-the-philippines/
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It’s tough being a sheriff in the Philippines
By Joel R. San Juan
-December 6, 2017
“I shot the sheriff.” Luckily that’s just a title of a song and that a sheriff being shot at while performing his duties has never happened yet in the country. Still, Filipinos can still remember one got punched several times by no less than the presidential daughter and Davao City Mayor Sara Duterte.
In 2011 Sheriff Abe Andres was punched several times by the mayor for insisting on demolishing houses inside a contested property in Barangay Soliman in Agdao district in Davao.
Andres was explaining that he was just implementing an order issued by Judge Emmanuel Carpio of the Regional Trial Court’s Branch 16 when the mayor suddenly threw punches.
Andres was rushed to the hospital after the incident.
No cake walk
BASED on the study of the Office of the Court Administrator (OCA), being a sheriff is never a walk in the park due to many challenges and difficulties they have to confront in performing their duties.
Like in serving summons to individuals, the Court ratiocinated in the case of Manotoc v. Court of Appeals that, in the absence of the person named in the summons, there must be three attempts to serve summons on separate days before authorities can resort to “substituted service.”
“The question posed is whether the three attempts are still viable or [take] too much time,” the study said.
With regard to serving summons to a corporation, Rule 14, Section 11 of the Rules of the Court requires that service upon a domestic corporation, partnership or association organized under the laws of the Philippines with a juridical personality may be made on the president, managing partner, general manager, corporate secretary, treasurer or in-house counsel.
However, oftentimes these executives cannot be found in their respective offices or intentionally avoid service of court processes. Thus, sheriffs find it difficult to serve summons on these individuals, the study noted.
“Based on the experiences of sheriffs in the performance of their duties, some party litigants are not providing an exact location of the place of persons to be given summons, which makes it difficult for the officers to locate where they will serve their summons,” the study said.
The study added that serving summons to persons who live in private subdivisions can also be difficult as security guards refuse to let sheriffs in. Doing so impedes sheriffs from performing tasks the court ordered them to undertake.
Garnishment, mortgage
IN cases involving garnishment, the report said sheriffs would usually encounter difficulty performing their tasks as some banks would refuse to receive notices. In law, garnishment is a court order directing that money or property of a third party (usually wages paid by an employer) be seized to satisfy a debt owed by a debtor to a plaintiff creditor. Sometimes sheriffs are referred to the head office. This adds to the cost and time spent on certain cases.
There are also challenges being encountered by sheriffs in cases involving foreclosure of real-estate mortgage.
“Relevant laws and rules, especially on the acts pertaining to rural banks and thrift banks, exemptions in the law given to corporations, partnerships and associations prevent the sheriffs from performing their jobs,” the study added.
Sometimes, sheriffs are caught in violence during the performance of their duties. These cases usually involve ejectment, demolition or writ of possession.
The study noted that some police officers or majority of police officers “are reluctant to assist the sheriff in the implementation of the writ especially in ejectment cases because they do not know the procedural aspect of ejectment and they do not want to be in the frontline.”
Sheriffs also confront lengthy and complex procedures in seeking police assistance.
Threats, reports
IN cases of replevin or repossession, the report said those who possess the object subject to replevin usually resist and issue grave threats against sheriffs.
In implementing writs of execution, sheriffs also confront numerous difficulties such as strong amount of resistance from defendants/respondents in implementation of demolition orders. They are also threatened with bodily harm.
“In cases involving enforcement of payment of money judgment, there is also continuous enforcement of the writ despite exhausting all legal remedies and the defendant has no capability to settle the money judgment,” the study said.
There are also voluminous writs of small claims cases, collection of sum money and other writs to be served and to be enforced that sheriffs pursue. Still they have to submit a report to the court every 30 days and proceed to take care of the matter until the judgment is satisfied in full.
There are also difficulties in requesting for police assistance in the implementation of writ, according to the report.
Low budget
IF actual physical harm, threats and harassments are absent, sheriffs have to make do with insufficient budget for serving extrajudicial foreclosure.
The legal fee of sheriffs is also insufficient, especially for those in the province of Mindanao, the OCA study said.
“In serving summons, several attempts must be made to effectively serve the defendants,” the report said. “But sometimes problems arise when additional expenses are incurred in case of outside summons to be served in certain jurisdictions.”
The report explained these problems arise as requests for additional funds must be accompanied by postal money order (PMO) endorsed by the Branch Clerk of Court.
“But the OIC [officer in charge] Clerk of Court is the one endorsing the PMO for encashment with the Postal Office. Then it is deposited with the [Landbank of the Philippines] and the sheriffs must prepare a ‘Sheriff’s Estimated Travel Expenses’ to be approved by the Clerk of Court and the Executive Judge.”
The meandering path to secure the funds doesn’t stop there.
The OCA study said once approved by the Clerk of Court and the Executive Judge, the deposited funds have to be withdrawn and given to the deputy sheriff who will serve the summons.
“This process entails a lot of delays in serving the said processes,” the study said.
Role in the judiciary
DATA obtained from the OCA showed that currently the number of sheriffs employed in the different courts in the country has reached 1,433.
In the Metropolitan Trial Court (MeTC) there are about 131 sheriffs; Municipal Trial Court (MTC), 240; Regional Trial Court (RTC) about 1,057; and Shari’a Court, 5.
Sheriffs’ roles and duties differ depending on what court they are assigned to.
Those assigned in the RTC-Office of the Clerk of Court of a Multiple Sala Court are ranked Sheriff 4, Sheriff 5 and Sheriff 6.
These sheriffs are tasked to serve or execute all writs and processes of the courts and other agencies, both local and foreign. They also keep custody of attached properties or goods.
RTC sheriffs are also obliged to maintain his or her own record book on writs of execution, writs of attachment, writs of replevin, writs of injunction and all other processes he or she undertakes.
Duties, qualifications
THESE sheriffs are also tasked to submit periodic reports to the Clerk of Court and perform related tasks and other duties that may be assigned by the Executive Judge and/or Clerk of Court.
Sheriffs assigned in the MeTC and MTC also perform the same duties and functions as their counterparts in the RTCs.
The pertinent provisions of the Judiciary Law regarding the number, qualifications, appointment, compensation, functions duties and other matters relative to the personnel of the RTCs apply to those of the Shari’a District Courts.
In order to land a post as a sheriff in the RTC, one must have at least two years of college education, at least one year relevant experience or training and must complete 4 to 24 hours of relevant training.
For Shari’a courts, among the qualifications needed for those eyeing a sheriff post are completion of two years college education and a career-service eligibility.
Grassroots role
A per curiam (unanimous) decision of the Supreme Court considered sheriffs as the “grassroots of judicial machinery” since their “duties and functions put them in close contact with litigants.”
The SC added that the performance of their duties is vital in shaping the public’s perception of the judiciary.
Being so, sheriffs are expected to perform their duties honestly and efficiently.
The High Tribunal said it will not tolerate any misconduct that would diminish the image and integrity of the judiciary.
In line with this, the SC ordered the dismissal from the service of Sheriff 4 Antonio Leaño Jr. of the Office of the Clerk of Court of the Regional Trial Court of Tarlac City; Sheriff 3 Benjamin Lacsina of the Office of the Clerk of Court of MTC in Cities, Tarlac City; and, Sheriff 3 Alvin Pineda of Branch 2 of the MTC in Cities, Tarlac City.
The three were found guilty of gross neglect and gross inefficiency in the performance of official duties.
Case vs. sheriffs
THE case against the gentlemen from Tarlac City stemmed from the complaint filed by lawyer Augusto Santos, attorney-in-fact of the heirs of the late Lucio Gomez.
Santos filed an ejectment case on behalf of the heirs of Gomez against various informal settlers occupying their lot in Barangay Binauganan, Tarlac City.
The ejectment cases were filed before Branch 1 of the MTC of Tarlac City.
After summary hearing, Santos obtained a favorable judgment. A writ of execution was issued pursuant to the finality of the trial court’s decision.
Santos claimed that he asked Sheriff Danilo Ibarra to implement the special writ of demolition. But Ibarra was reluctant to perform it due to physical condition.
The complainant said he was referred instead to Lacsina and later to Leaño.
Santos claimed that the two sheriffs required him to deposit P200,000 to cover the sheriffs’ expenses such as food and travel allowance and salaries of the demolition crew.
He alleged that he deposited the amount with the trial court and the amount was withdrawn. However, no demolition occurred.
Subsequently, the respondents in the ejectment case managed to obtain a writ of preliminary injunction before Branch 63 of the MTC. The cases, however, were affirmed on appeal before Branch 64 of the Regional Trial Court of Tarlac City.
In light of Branch 64’s decision, Branch 63 lifted the writ of preliminary injunction and the records of the cases were remanded to Branch 1 of the MTC for execution.
Promises, promises
SANTOS said he asked Ibarra and Lacsina anew to implement the decision.
He recounted that the two sheriffs were reluctant to implement the decision. Ibarra cited his illness and impending retirement, while Lacsina stated the informal settlers were known to him as members of Iglesia ni Cristo, the same religious sect he belongs to.
Santos was then referred to Leaño for the implementation of the decision.
The complainant alleged that Leaño gave him an itemized list of expenditures when they met in a restaurant in Tarlac. According to Santos, Leaño required him to pay half of the expenses with the assurance that a demolition team would be assembled in time for the actual demolition.
Santos subsequently paid Leaño the amount of P100,000 as partial payment aside from P200,000 which he gave to a certain Eddie Reyes, the person Leaño designated to lead the demolition. Lacsina and Pineda also received a day before the supposed demolition their per diems amounting to P11,000 for them to show up at the site.
Santos claimed that Leaño told him the demolition would take place in February 2011 and that he requested P25,000 for the food and transportation of the demolition crew.
Despite paying all the amounts requested, Santos said the writ of demolition was not implemented.
Leaño then promised to implement the writ of demolition two weeks after. But no demolition occurred, which prompted Santos to file a case against the three sheriffs.
Guilty verdict
THE Office of the Court Administrator found the three sheriffs guilty of gross neglect and gross inefficiency in the performance of official duties.
It noted that while the estimated expense for the demolition were approved by the trial court, respondents failed to itemize and liquidate the expenses for the demolition and to issue official receipts upon receiving complainant’s money.
The SC adopted the findings and recommendations of the OCA.
It held: “Considering the numerous infractions committed by respondents, the proper penalty to be imposed upon them is dismissal from service. The judiciary is not obliged to keep dishonest, neglectful and disobedient personnel within its ranks.”
The case only proves that sheriffs would not always fall victim in efforts to implement court orders.
Other cases would show that some have been penalized for various offenses committed in the guise of performing their duties.
Their common offenses range from simple neglect of duty to gross neglect of duty and dishonesty.
Dizon, Zaragoza
THERE’S also the case of Ricardo Dizon, Sheriff III of the MeTC of Mandaluyong City Branch 59, who was found guilty of simple neglect of duty in 2008 and was imposed a fine of P20,000.
The case against Dizon stemmed from the complaint of MeTC Branch 59 Presiding Judge Ofelia Calo and a certain Pablea Tamayo.
In the said case, Dizon received the writ of execution for implementation on September 20, 2004. But it took Dizon more than four months to partially implement the said writ on January 21, 2005.
Dizon reasoned out that it took him awhile to implement the writ due to Tamayo’s failure to provide him with police assistance.
However, the Office of the Court Administrator said Dizon failed to comply with his ministerial duty to state in the sheriff’s return, as well as in his periodic reports, the alleged impediment in the implementation of the writ and the reason why the monetary judgment remained unsatisfied.
In 2004 Alberta Zaragoza, Sheriff 3 of MeTC Pasay City Branch 45, was found guilty of grave misconduct and simple neglect of duty and ordered his dismissal from the service with forfeiture of all his retirement benefits and barred from re-employment in the government, including government-owned and -controlled corporations.
Zaragoza was also ordered to return the amount of P30,000 to complainant Meneses.
“In the case, respondent failed to make the required periodic reports. Although the alias in the writ of execution was issued on July 2, 2001, respondent belatedly submitted his ‘partial report’ only on September 27, 2001, more than 80 days after the issuance thereof,” the resolution read.
Bundy cards
IN 2009 Sheriff IV Dominador C. Masangkay and five other court staff were found guilty of dishonesty and ordered to pay a fine of P5,000 with a stern warning that a repetition of the same or similar acts in the future shall be dealt with more severity.
The case stemmed from the complaint filed by the Leave Division of the OCA-Office of Administrative Services, which found irregularities in the bundy card entries for the month of November 2009 of Masangkay and the other respondents.
The complainant discovered that Masangkay and his co-respondents made it appear that they arrive on time in the morning when the entries were actually made in the evening of the same dates.
The respondents, based on record, admitted allowing one of the staff from the Office of the Clerk of Court, Balanga City, Bataan, to punch in all their bundy cards, indicating the almost identical time-in and time-out on their daily time record at the questioned dates. Such act constituted falsification.
“They made it appear that their log-in time was made in the morning instead of the actual time-in made in the evening of the 6th, 12th, 17th and 26th of November 2009,” the resolution read.
Calo’s case
IN 2012 Sheriff IV Arthur Calo of Branch 5 of the Butuan City RTC was found guilty of neglect of duty and conduct unbecoming a court employee and was fined in the amount of P20,000 to be deducted from the benefits due him.
The case stemmed from the complaint filed by lawyers Ricardo Gonzales and Ernesto Rosales.
In the said case, Calo was found to have been clearly remiss in the performance of his mandated duties by unilaterally giving occupants three months, instead of three days provided by the Rules, to vacate the property. When Calo did not evict occupants from the premises, a room containing their personal effects was padlocked, therefore delaying the demolition of the improvements introduced on the property.
Likewise, the resolution said Calo failed to make a return on the writ of possession immediately after he implemented the same, thus, resulting in the filing of a complaint of neglect of duty and conduct unbecoming a court employee.
The Court has held that “sheriffs must not exhibit conduct that may discredit the public’s faith in the judiciary.”
It added that “sheriffs must perform their duties with utmost honesty and diligence considering that even the slightest deviation in the prescribed procedure may affect the rights and interests of the litigants.”
Hopefully, there won’t come a time when somebody would take seriously Bob Marley’s ditty.
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Wednesday, December 6, 2017
Sereno to IBP, rights protectors: Don’t be muzzled, stand for the people
See - https://newsinfo.inquirer.net/947157/sereno-chief-justice-human-rights-integrated-bar-of-the-philippines-defend-rule-of-law
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Sereno to IBP, rights protectors: Don’t be muzzled, stand for the people
By: Maila Ager - Reporter / @MAgerINQ
INQUIRER.net / 04:15 PM November 23, 2017
Supreme Court Chief Justice Maria Lourdes Sereno. INQUIRER FILE PHOTO/RAFFY LERMA
As she called for an end to “impunity and human rights violations” in the country, Supreme Court Chief Justice Maria Lourdes Sereno on Thursday urged the Integrated Bar of the Philippines (IBP) and other human rights protectors not to be “stymied, muzzled or cowed.”
“And let no political ambition stand in the way of standing for what is right,” Sereno said at a forum called “Pagtugon sa Hamon: A Call to the Rule of Law, Access to Justice and Human Rights” held at the SMX Convention Center in Taguig City.
“Make your stand in such a way that no one will doubt that your hearts are with the Filipino people. Let your voices be heard clearly, as a call to our people to unite and defend the freedoms that our forefathers dearly paid with blood for.”
“Lend your lives to the poor and oppressed. This is the law’s calling. This is our people’s cause,” added Sereno, who is facing an impeachment bid at the House of Representatives.
The Chief Justice said it is high time that the culture of accountability be institutionalized in order to end impunity and human rights violations in the country.
The Constitution, she said, provides for the “best logical and operational framework” to advance human rights.
Sereno said the Constitution also tasks not only the Commission on Human Rights (CHR), but also the judiciary and other independent constitutional offices, such as the Commission on Audit (COA), the Civil Service Commission (CSC) and the Office of the Ombudsman, to serve as “institutions of accountability” when it comes to human rights protection.
“The framework of accountability relies on the faithful discharge of duties by these independent institutions of accountability,” she said as she emphasized the need for these institutions to work in parallel with other professional justice agencies, namely the Department of Justice (DOJ) and its attached agencies.
These DOJ attached agencies include the National Prosecution Service, Public Attorney’s Office, National Bureau of Investigation, Bureau of Correction, and the Board of Pardon and Parole.
Sereno said “pressure” must continually be exerted on these institutions “to ensure that impunity ends, accountability is consistently exacted, the rule of law established and of course, resultantly, that human rights are protected.”
“Pressure is important, pressure must be continually built up, in all fora, venues and information platform –for all public officers to respect human rights, to not issue any statement that encourages a disregard for human rights, and to investigate human rights violations,” she said.
Sereno particularly urged members of the IBP, the country’s premier organization of lawyers, to exert pressure on the police to solve crimes, such as murder, rape, robbery and widespread thievery.
“If you keep silent about these crimes, wittingly or unwittingly, you will be considered as complicit to impunity, by your perceived indifference to the victims of rape, murder, and similarly horrendous atrocities,” she said of IBP, one of the organizers of the forum. /je
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Shun corruption, Ombudsman urges lawyers
See - http://newsinfo.inquirer.net/949294/shun-corruption-ombudsman-urges-lawyers
"x x x.
Shun corruption, Ombudsman urges lawyers
By: Ador Vincent S. Mayol - Senior Reporter / @adorCDNInquirer Visayas / 03:34 PM December 02, 2017
CEBU CITY—Resist temptation. Shun corruption. Live within your means.
Thus were the unsolicited advice of Ombudsman Conchita Carpio-Morales to government and private workers as the nationwide war against dishonesty and fraud continues.
“Upholding integrity is better appreciated in the context of knowing when to say yes and when to say no. The primary challenge is saying yes in maintaining [uprightness] in all dealings,” she said in her speech delivered during the 30th anniversary of Cebu Lady Lawyers Association (CELLA) at the Casino Español de Cebu in Cebu City on Friday evening.
“Enticements are everywhere. Corruption pervades every sector whether in government or private sector. We join the crusade to end the forces that degrade people’s lives,” she added.
Morales expressed dismay over the actions of some leaders, who instead of serving people, set aside integrity in exchange for money.
“The people should be bothered when the leaders themselves could not figure out what is right and what is wrong either by sheer ignorance of the law or a symptom of a callous conscience,” said the feisty chief anti-graft crusader.
Morales encouraged the lawyers to lead the way in the fight against corruption to promote the common good.
“Those who are able to speak justice must do justice. I, therefore, exhort everyone to lead the way and shine as luminous and incandescent as the pearl. The challenge of upholding integrity is applicable not only for those in public service but in every sector of society,” she said.
To uphold accountability in public service, she said, is to stay humble at all times.
“The Constitution advises public officials to live modest lives. In other words, live within your means. We must reject corruption wholeheartedly and embrace the core values of beauty, wisdom, and integrity,” Morales said.
CELLA was founded by retired Judge Exaltacion Navarro in 1987. The group aimed to involve women lawyers in socio-economic activities, foster camaraderie among themselves, and maintain the ideals of integrity and morality.
CELLA has hosted a weekly radio show on legal matters over dyRC since 1988. It also has a television program over the Cebu Catholic Television Network.
Morales lauded CELLA for continuing to cultivate and inspire more women lawyers to become responsive to the challenge of the times.
“The nation is still confronting the dark vestiges of corruption. CELLA’s spark of heavenly fire, once kindled and set ablaze, can illuminate the (darkness) and ensure that every public fund goes to improving the lives of every Filipino,” she said. /lzb."
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Income tax schedule for 2018
See - https://www.rappler.com/nation/190171-house-senate-250000-income-tax-exemption-bicam?utm_source=facebook&utm_medium=social&utm_campaign=nation
"x x x.
MANILA, Philippines – Both houses of Congress have agreed to exempt from income tax payment annual earnings of up to P250,000 to increase the take-home pay of workers.
This was among the provisions agreed upon by the House and the Senate contingents at the first bicameral conference committee meeting on the proposed tax reform package, Senate ways and means committee chair Juan Edgardo Angara said on Saturday, December 2.
According to the senator, the bicam approved the following income tax schedule for 2018:
The income tax scheme for 2019 onwards is yet to be finalized.
Lawmakers will continue the “difficult” task of finalizing the Tax Reform for Acceleration and Inclusion (TRAIN) bill until Tuesday, December 5.
The work is cut out for the legislators, because the House and the Senate have different proposed tax rates on automobiles, sugar-sweetened beverages, and fuel. The Senate version proposes lower levies as well.
District representatives are also contesting the senators’ removal of P50 billion from the budget of the Department of Public Works and Highways budget. (READ: Alvarez to Senate: Restore P50B or we have reenacted budget for 2018)
The House also opposed Senate's realignment of the P900-million allocation for Oplan Double Barrel project of the Philippine National Police to housing projects for police and military. – Rappler.com
x x x.
"x x x.
MANILA, Philippines – Both houses of Congress have agreed to exempt from income tax payment annual earnings of up to P250,000 to increase the take-home pay of workers.
This was among the provisions agreed upon by the House and the Senate contingents at the first bicameral conference committee meeting on the proposed tax reform package, Senate ways and means committee chair Juan Edgardo Angara said on Saturday, December 2.
According to the senator, the bicam approved the following income tax schedule for 2018:
The income tax scheme for 2019 onwards is yet to be finalized.
Lawmakers will continue the “difficult” task of finalizing the Tax Reform for Acceleration and Inclusion (TRAIN) bill until Tuesday, December 5.
The work is cut out for the legislators, because the House and the Senate have different proposed tax rates on automobiles, sugar-sweetened beverages, and fuel. The Senate version proposes lower levies as well.
District representatives are also contesting the senators’ removal of P50 billion from the budget of the Department of Public Works and Highways budget. (READ: Alvarez to Senate: Restore P50B or we have reenacted budget for 2018)
The House also opposed Senate's realignment of the P900-million allocation for Oplan Double Barrel project of the Philippine National Police to housing projects for police and military. – Rappler.com
x x x.
Tuesday, November 7, 2017
Virtual businesses owned by foreign corporations — Are they doing business in the Phl?
See - Virtual businesses owned by foreign corporations — Are they doing business in the Phl?
"x x x.
Virtual businesses owned by foreign corporations — Are they doing business in the Phl?
TOP OF MIND
By Betzy C. Nuevo
When then, are foreign corporations considered as doing business in the Philippines? In determining whether or not a foreign corporation is considered doing business, the facts are considered on a case-by-case basis. SEC-OGC Opinion No. 17-03 issued on April 4, 2017 finds particular significance as it found an occasion to determine whether a foreign corporation, transacting through online means, can be deemed to be doing business in the Philippines.
The factual circumstances surrounding said opinion involved a foreign corporation proposing an online platform that offers various content and services, such as an online community and online gaming system. The online platform is an internet-based system, wherein persons in the Philippines can participate in the online community, and purchase and use content from the foreign corporation’s services. This, notwithstanding the company having no physical presence in the Philippines. The said foreign corporation will further undertake activities such as offering and selling its services on the internet to persons located in the Philippines, accepting online payments in any currency, marketing or advertising the online platform in the Philippines through online and printed publications, and television and radio commercials, and hiring independent contractors to market and advertise its products, as well as selling prepaid cards in relation to its online gaming services.
In determining whether the above activities of said foreign corporation constitute doing business in the Philippines, the SEC used the “twin characterization” and “sliding scale” tests.
The “twin characterization test” was discussed by the Supreme Court in the case of Mentholatum Co., Inc. vs. Mangiliman (G.R. No. 47701). In the said case, a foreign corporation is considered “doing business” in the Philippines when (1) the company is continuing the body or substance of the business or enterprise for which it was organized or whether it has substantially retired from it and turned it over to another, and (2) the company is engaged in activities which implies a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of acts or works or the exercise of some of the functions normally incident to, and in progressive prosecution of, the purpose and object of its organization. The twin characterization test aims to identify whether transactions made by the foreign corporation constitute continuing the body or substance of its main business in our country, and determine if it intends to continue the same for some time.
On the other hand, the “sliding scale test” is discussed in the above opinion as a test specifically “tailored to internet activities to determine the level or types of activities that will constitute minimum contacts for jurisdictional purposes.” Using this test, the courts determine whether or not it has personal jurisdiction over the foreign corporation by identifying the nature of the company and the quantity of its commercial activity conducted in the internet.
This test starts by classifying the websites that may be used by the entity as either (1) passive, (2) active and (3) interactive. At one end of the scale are “passive” websites, which are those that do not generate sufficient contacts since they are only used to post information. This type does not place foreign corporations under the jurisdiction of our courts. On the other end are “active” website, which are those that generate sufficient contacts through acts such as selling of contents and services over the internet. This, in turn, subjects foreign corporations to our court’s jurisdiction. Found in between these two categories are “interactive” websites, which combine the elements of both active and passive websites. The courts determine whether it has personal jurisdiction over interactive website owners on a case-by-case basis.
As applied in the recent SEC opinion, the SEC ruled that the foreign corporation fulfilled the requirements of the twin characterization test. The SEC found that some of the activities of the foreign corporation such as the funding of the company’s online wallet, offering and selling of its services, accepting online payments in any currency, marketing or advertising, and hiring of independent contractors for marketing or advertising of its products, and the selling of prepaid cards in relation to its online gaming services, indicate that the entity will be continuing the body or substance for which it was organized in the Philippines. Moreover, the SEC found that these activities will be consummated in the Philippines albeit virtually. The SEC found it relevant to note that the creation of accounts, funding of the online wallet, and payment and delivery of the online content and services will all be made in the Philippines. Likewise, the offering for sale and sale of online content and services will be also be made to an account holder in the Philippines. The funding of the online wallet was, moreover, found to be indicative of intent to continue business for a period of time as the maintenance of funds in such wallet will allow the account holder to resume his transactions on his account. Thus, a business relationship is maintained, notwithstanding the frequency or regularity of the transactions.
Moreover, the SEC also found that the foreign corporation satisfied the sliding scale test by identifying that the company has minimum contacts. The SEC found that the foreign corporation’s website must be considered as an “active” website since it generates sufficient contacts and businesses over the internet through offering and engaging in sale of online content and services to account holders in the Philippines.
Having satisfied both the twin characterization and sliding scale tests, the SEC finally opined that the activities in which the foreign corporation plans to undertake constitutes as “doing business” in the Philippines. The foreign corporation is required to obtain a license to do business in the Philippines, should it wish to continue transacting here, and if it wishes to avoid the adverse consequences of non-compliance, as stated in Section 133 of the Corporation Code.
Pertinently, the said section states that unlicensed foreign corporations transacting business in the Philippines cannot maintain or intervene in any action, suit, or proceeding in any court or administrative agency of the Philippines. As explained in the 1990 case of Granger Associates vs. Microwave Systems, et. al. (G.R. No. 79986), the purpose of the rule requiring corporations to obtain a license to do business in the Philippines is to enable the court to exercise jurisdiction over foreign corporations for the regulation of their activities in our country. Further, as the case cited, while foreign investors are always welcome in this land to collaborate with us for our mutual benefit, they must be prepared, as an indispensable condition, to respect and be bound by Philippine law in proper cases. Thus, foreign corporations who have not complied with the license requirement will be deemed as having no legal capacity to sue before Philippine courts.
Do note, though, that there exists in jurisprudence an exemption to this general rule. In the 2010 case of Global Business Holdings, Inc. vs. Surecomp Software, B.V. (G.R. No. 173463), a foreign corporation doing business in the Philippines without license may sue in Philippine courts a Filipino citizen or a Philippine entity that it had contracted with and benefited from. In the said case, the Supreme Court had occasion to rule that a party, after having acknowledged the personality of a corporation by contracting with it, is estopped from challenging the said personality. The principle derives from estoppel, and is applied to prevent a person contracting with a foreign corporation from later taking advantage of its noncompliance with the statutes, chiefly in cases where such person has received the benefits of the contract. Thus, we can see that our laws do not intend to put foreign corporations at a disadvantage by requiring them to secure a license. Merely, the law intends to compel the foreign entity desiring to do business in our country to respect and be bound by Philippine laws, and submit itself to the jurisdiction of our courts.
In totality, foreign corporations may consider the Philippines as a place having good business potential wherein they can invest their money and do business with confidence.
Betzy C. Nuevo is a supervisor from the tax group of KPMG R.G. Manabat & Co. (KPMG RGM&Co.), the Philippine member firm of KPMG International. KPMG RGM&Co. has been recognized as a Tier 1 tax practice, Tier 1 transfer pricing practice, Tier 1 leading tax transactional firm and the 2016 National Transfer Pricing Firm of the Year in the Philippines by the International Tax Review.
xxx.
x x x."
(The Philippine Star) | Updated November 7, 2017 - 12:00am
We are now in the information age, and experiencing an era of quick-evolving technology. With such evolution, many types of businesses arose. From the traditional set-up requiring the physical presence of both the suppliers and customers, we can see nowadays that sales occur even without such physical presence. Examples of such businesses are online gaming, online stores, and business process outsourcing. These newly developed arrangements are widely exploited by businesses, including foreign corporations. Thus, the question on when foreign online business may be considered as doing business in the Philippines becomes more relevant.
First off, we will need to identify what a foreign corporation is and what the requirements are when they wish to transact business in the Philippines. Section 123 of the Corporation Code of the Philippines will find significance as it defines a foreign corporation as one that is formed, organized, or existing under any laws other than those of the Philippines, and whose laws allow Filipino citizens and corporations to do business in its own country or state. The provision further states that a foreign corporation shall have the right to transact business in the Philippines after it obtains a certificate of authority from the appropriate government agency and a license to transact business in this country.
However, not all transactions made by a foreign corporation require a license. In the 2002 case of MR Holdings, Ltd. vs. Sheriff Carlos P. Bajar et. al. (G.R. No. 138104), the Supreme Court found that mere ownership by a foreign corporation of a property in a certain state, unaccompanied by its active use in furtherance of its business purpose, is insufficient to constitute the entity as doing business in our country. Fast forward to the 2007 case of B. Van Zuiden Bros., Ltd. vs. GTVL Manufacturing Industries, Inc. (G.R. No. 147905), the Supreme Court also declared that foreign corporations, whose transactions pertain to mere exportation of goods, without doing any specific commercial act within our country, are not considered as doing business in the importing country. Further in the 2012 case of Steelcase, Inc. vs. Design International Selections, Inc., (G.R. No. 171995), the Supreme Court held that foreign corporations are not deemed to be conducting business in the Philippines merely by appointing a distributor.
We are now in the information age, and experiencing an era of quick-evolving technology. With such evolution, many types of businesses arose. From the traditional set-up requiring the physical presence of both the suppliers and customers, we can see nowadays that sales occur even without such physical presence. Examples of such businesses are online gaming, online stores, and business process outsourcing. These newly developed arrangements are widely exploited by businesses, including foreign corporations. Thus, the question on when foreign online business may be considered as doing business in the Philippines becomes more relevant.
First off, we will need to identify what a foreign corporation is and what the requirements are when they wish to transact business in the Philippines. Section 123 of the Corporation Code of the Philippines will find significance as it defines a foreign corporation as one that is formed, organized, or existing under any laws other than those of the Philippines, and whose laws allow Filipino citizens and corporations to do business in its own country or state. The provision further states that a foreign corporation shall have the right to transact business in the Philippines after it obtains a certificate of authority from the appropriate government agency and a license to transact business in this country.
However, not all transactions made by a foreign corporation require a license. In the 2002 case of MR Holdings, Ltd. vs. Sheriff Carlos P. Bajar et. al. (G.R. No. 138104), the Supreme Court found that mere ownership by a foreign corporation of a property in a certain state, unaccompanied by its active use in furtherance of its business purpose, is insufficient to constitute the entity as doing business in our country. Fast forward to the 2007 case of B. Van Zuiden Bros., Ltd. vs. GTVL Manufacturing Industries, Inc. (G.R. No. 147905), the Supreme Court also declared that foreign corporations, whose transactions pertain to mere exportation of goods, without doing any specific commercial act within our country, are not considered as doing business in the importing country. Further in the 2012 case of Steelcase, Inc. vs. Design International Selections, Inc., (G.R. No. 171995), the Supreme Court held that foreign corporations are not deemed to be conducting business in the Philippines merely by appointing a distributor.
When then, are foreign corporations considered as doing business in the Philippines? In determining whether or not a foreign corporation is considered doing business, the facts are considered on a case-by-case basis. SEC-OGC Opinion No. 17-03 issued on April 4, 2017 finds particular significance as it found an occasion to determine whether a foreign corporation, transacting through online means, can be deemed to be doing business in the Philippines.
The factual circumstances surrounding said opinion involved a foreign corporation proposing an online platform that offers various content and services, such as an online community and online gaming system. The online platform is an internet-based system, wherein persons in the Philippines can participate in the online community, and purchase and use content from the foreign corporation’s services. This, notwithstanding the company having no physical presence in the Philippines. The said foreign corporation will further undertake activities such as offering and selling its services on the internet to persons located in the Philippines, accepting online payments in any currency, marketing or advertising the online platform in the Philippines through online and printed publications, and television and radio commercials, and hiring independent contractors to market and advertise its products, as well as selling prepaid cards in relation to its online gaming services.
In determining whether the above activities of said foreign corporation constitute doing business in the Philippines, the SEC used the “twin characterization” and “sliding scale” tests.
The “twin characterization test” was discussed by the Supreme Court in the case of Mentholatum Co., Inc. vs. Mangiliman (G.R. No. 47701). In the said case, a foreign corporation is considered “doing business” in the Philippines when (1) the company is continuing the body or substance of the business or enterprise for which it was organized or whether it has substantially retired from it and turned it over to another, and (2) the company is engaged in activities which implies a continuity of commercial dealings and arrangements, and contemplates, to that extent, the performance of acts or works or the exercise of some of the functions normally incident to, and in progressive prosecution of, the purpose and object of its organization. The twin characterization test aims to identify whether transactions made by the foreign corporation constitute continuing the body or substance of its main business in our country, and determine if it intends to continue the same for some time.
On the other hand, the “sliding scale test” is discussed in the above opinion as a test specifically “tailored to internet activities to determine the level or types of activities that will constitute minimum contacts for jurisdictional purposes.” Using this test, the courts determine whether or not it has personal jurisdiction over the foreign corporation by identifying the nature of the company and the quantity of its commercial activity conducted in the internet.
This test starts by classifying the websites that may be used by the entity as either (1) passive, (2) active and (3) interactive. At one end of the scale are “passive” websites, which are those that do not generate sufficient contacts since they are only used to post information. This type does not place foreign corporations under the jurisdiction of our courts. On the other end are “active” website, which are those that generate sufficient contacts through acts such as selling of contents and services over the internet. This, in turn, subjects foreign corporations to our court’s jurisdiction. Found in between these two categories are “interactive” websites, which combine the elements of both active and passive websites. The courts determine whether it has personal jurisdiction over interactive website owners on a case-by-case basis.
As applied in the recent SEC opinion, the SEC ruled that the foreign corporation fulfilled the requirements of the twin characterization test. The SEC found that some of the activities of the foreign corporation such as the funding of the company’s online wallet, offering and selling of its services, accepting online payments in any currency, marketing or advertising, and hiring of independent contractors for marketing or advertising of its products, and the selling of prepaid cards in relation to its online gaming services, indicate that the entity will be continuing the body or substance for which it was organized in the Philippines. Moreover, the SEC found that these activities will be consummated in the Philippines albeit virtually. The SEC found it relevant to note that the creation of accounts, funding of the online wallet, and payment and delivery of the online content and services will all be made in the Philippines. Likewise, the offering for sale and sale of online content and services will be also be made to an account holder in the Philippines. The funding of the online wallet was, moreover, found to be indicative of intent to continue business for a period of time as the maintenance of funds in such wallet will allow the account holder to resume his transactions on his account. Thus, a business relationship is maintained, notwithstanding the frequency or regularity of the transactions.
Moreover, the SEC also found that the foreign corporation satisfied the sliding scale test by identifying that the company has minimum contacts. The SEC found that the foreign corporation’s website must be considered as an “active” website since it generates sufficient contacts and businesses over the internet through offering and engaging in sale of online content and services to account holders in the Philippines.
Having satisfied both the twin characterization and sliding scale tests, the SEC finally opined that the activities in which the foreign corporation plans to undertake constitutes as “doing business” in the Philippines. The foreign corporation is required to obtain a license to do business in the Philippines, should it wish to continue transacting here, and if it wishes to avoid the adverse consequences of non-compliance, as stated in Section 133 of the Corporation Code.
Pertinently, the said section states that unlicensed foreign corporations transacting business in the Philippines cannot maintain or intervene in any action, suit, or proceeding in any court or administrative agency of the Philippines. As explained in the 1990 case of Granger Associates vs. Microwave Systems, et. al. (G.R. No. 79986), the purpose of the rule requiring corporations to obtain a license to do business in the Philippines is to enable the court to exercise jurisdiction over foreign corporations for the regulation of their activities in our country. Further, as the case cited, while foreign investors are always welcome in this land to collaborate with us for our mutual benefit, they must be prepared, as an indispensable condition, to respect and be bound by Philippine law in proper cases. Thus, foreign corporations who have not complied with the license requirement will be deemed as having no legal capacity to sue before Philippine courts.
Do note, though, that there exists in jurisprudence an exemption to this general rule. In the 2010 case of Global Business Holdings, Inc. vs. Surecomp Software, B.V. (G.R. No. 173463), a foreign corporation doing business in the Philippines without license may sue in Philippine courts a Filipino citizen or a Philippine entity that it had contracted with and benefited from. In the said case, the Supreme Court had occasion to rule that a party, after having acknowledged the personality of a corporation by contracting with it, is estopped from challenging the said personality. The principle derives from estoppel, and is applied to prevent a person contracting with a foreign corporation from later taking advantage of its noncompliance with the statutes, chiefly in cases where such person has received the benefits of the contract. Thus, we can see that our laws do not intend to put foreign corporations at a disadvantage by requiring them to secure a license. Merely, the law intends to compel the foreign entity desiring to do business in our country to respect and be bound by Philippine laws, and submit itself to the jurisdiction of our courts.
In totality, foreign corporations may consider the Philippines as a place having good business potential wherein they can invest their money and do business with confidence.
Betzy C. Nuevo is a supervisor from the tax group of KPMG R.G. Manabat & Co. (KPMG RGM&Co.), the Philippine member firm of KPMG International. KPMG RGM&Co. has been recognized as a Tier 1 tax practice, Tier 1 transfer pricing practice, Tier 1 leading tax transactional firm and the 2016 National Transfer Pricing Firm of the Year in the Philippines by the International Tax Review.
xxx.
x x x."
MEL STA.MARIA | Chief Justice Sereno shouldn't resign
See - MEL STA.MARIA | Chief Justice Sereno shouldn't resign
"x x x.
MEL STA.MARIA | Chief Justice Sereno shouldn’t resign
By Mel Sta. Maria
| November 7, 2017, 7:38 AM
Philstar file photographAtty. Mel Sta. Maria is the Dean of the Far Eastern University Institute of Law. He also teaches at the Ateneo de Manila School of Law and the Pamantasan ng Lungsod ng Maynila College of Law.
For presidential spokesman Harry Roque to suggest that Chief Justice Maria Lourdes Sereno resign “ to spare the institution from any further damage” is ridiculous.
The rate the Supreme Court is churning out decisions that are highly controversial and/or, worse, perceived as subservient to the wishes of Malacañan, is more reason why the Chief Justice should not resign, to preserve what is left of the good reputation of not only the Supreme Court but the whole government and our democratic system.
For example, the high court ruling allowing the late dictator Ferdinand Marcos — who, together with his cohorts, stole billions of pesos from the Philippine treasury and whose regime resulted in thousands of death and/or disappearances of Filipinos — to be buried at the Libingan ng mga Bayani was so preposterous. The Chief Justice strongly dissented in that case saying that the burial “would be to disregard historical truths and legal principles that persist after death … It would be to degrade the State’s duty to recognize the pain of countless victims of Marcos and Martial law.”
The decision upholding President Rodrigo Duterte’s placing all of Mindanao under Martial Law even though there was no actual rebellion or invasion in many peaceful places is considered by many critics as virtually planting the legal foundation for authoritarianism. The Chief Justice dissented against the almost absolute grant of power to the executive by the majority of the Supreme Court on the imposition of Martial Law, strongly stating that, according to the text and spirit of the Constitution, “ the President, in the exercise of his commander-in-chief-powers, does not have unbridled discretion as to when, where and how martial law is to be declared.”
The acquittal of Gloria Macapagal Arroyo in the plunder case against her was, to many, so premature it prompted the Chief Justice to dissent, stating that the Sandiganbayan resolution to proceed with the trial “cannot be overridden willy-nilly by this Court.”
When the majority of the Supreme Court granted bail to Senator Juan Ponce Enrile, it was so astonishing as it was not strongly premised on anything textually allowed by the Constitution. Again, the Chief Justice openly declared that her position was “an unqualified concurrence with the dissent” of Justice Marvic Leonen, who disagreed with the majority because, in so doing, they concede that there are “those among us who are powerful and networked enough to enjoy privileges not shared by all.”
The absolute pardon granted former President Joseph Estrada was disappointing as it smacks of impunity. The Chief Justice joined the dissent of Justice Leonen who stated that “impunity, in any form, should be abhorred especially when it gives advantage to the privileged and the powerful.”
There can be no dispute that Chief Justice Sereno, together with a small minority in the Supreme Court, provides the rational voice of decency, rationality, historicity, and intelligence in the tribunal. And even if her position did not prevail in the above-mentioned cases, this is so not for poor arguments but simply because there were more votes obtained by the opposite side.
And from the institutional perspective, Chief Justice Maria Lourdes Sereno is the only head of a branch of government not at the beck and call of President Duterte. Speaker Pantaleon Alvarez is an avid follower of the President while Senate President Koko Pimentel is a party-mate. Not only is this the demand of Chief Justice Sereno’s position, in order to preserve whatever perception of independence the Supreme Court still has today, but, more paramount, such attitude is required of the public so they can have the confidence that there is someone authoritative enough and ready to relay to them, if warranted, why the President, the Senate and House of Representatives are, in certain important cases, wrong. That is an imperative in a robust democracy.
Ironically, to maintain Chief Justice Sereno in her position in the Supreme Court will do President Duterte more good than harm. For one, it will show the confidence of his administration in the workings of our institutions despite contrary views espoused by some of its members, especially the Chief Justice of the Supreme Court. That is an indicator of stability. not insecurity.
Second, it will prove that conflicting positions among the three branches of government, or some members of it, are not generated by personalities but by substantial issues better resolved not by ousting people as bullies — accustomed to have their way by brute force — are wont to do, but by the strength of persuasion necessary in a democratic system. That is critical but positive engagement.
And lastly, leaving Chief Justice Maria Lourdes Sereno to perform her official functions, thus not giving any occasion for President Duterte to appoint a new Chief Justice of his choice, will diminish the perception that autocracy led by the executive and with the connivance of the other two other great branches of government — the legislature and the judiciary — is President Duterte’s ultimate objective. That is democratic.
It is not hard to see therefore that nothing can be more inane and nonsensical than insisting that Chief Justice Maria Lourdes Sereno desist from performing her task mandated by the Constitution. She poses no grave danger to the nation, does not subvert our democratic institutions, and is not a menace to the third great branch of government — the judiciary.
The country needs her in these trying times.
x x x."
Monday, November 6, 2017
Drug War
See - https://www.youtube.com/playlist?list=PLOCWSOHhjJPUCq2DmLNPz0qaywLuQBnk2
Drug War
Sam Warner
1
26:43
The Great Depression, Jazz, and Harry Anslinger: The War on Drugs Before Nixon
misesmedia
2
36:24
Chris Calton: Historical Controversies
misesmedia
3
38:55
The Attack on Marijuana During the 1930s
misesmedia
4
47:21
The Opioid Epidemic | Mark Thornton
misesmedia
5
44:13
The Milk of the Poppy
misesmedia
6
42:55
Culture, Coca-Cola, and the CIA: The History of Cocaine
misesmedia
7
3:48
Craig Cesal - Serving Life for Pot
Amy Povah
8
37:38
A Bad Trip: The US Government and LSD
misesmedia
9
39:09
Then Came Nixon
misesmedia
10
19:56
Massacres and Marijuana: Vietnam and the Drug War
misesmedia
11
8:55
Jacob Hornberger: End the Drug War Conference at FAMU
The Future of Freedom Foundation
12
31:14
Ken Williams: End the Drug War Conference at FAMU
The Future of Freedom Foundation
13
31:49
Kassandra Frederique: End the Drug War Conference at FAMU
The Future of Freedom Foundation
14
33:42
Laurence M. Vance: End the Drug War Conference at FAMU
The Future of Freedom Foundation
15
17:31
Ethan Nadelmann: Why we need to end the War on Drugs
TED
16
18:47
Drugs, "thugs," and other things we're taught to fear | Gabriel Sayegh | TEDxBinghamtonUniversity
TEDx Talks
17
12:28
Drug Smuggler Speaks Out About Incarceration and Marijuana | Richard Stratton | TEDxFultonStreet
TEDx Talks
18
14:43
Everything you think you know about addiction is wrong | Johann Hari
TED
19
15:52
Making peace with cannabis | Zachary Walsh | TEDxPenticton
TEDx Talks
20
31:53
The rise and fall of the global drug prohibition regime. Ethan Nadelmann
The Monthly Video
21
55:32
Randy E. Barnett: The Harms of Drug Prohibition
Libertarianism.org
22
29:30
Thomas Szasz: The Right to Take Drugs
Libertarianism.org
23
31:56
Drugs: The Good, The Bad and The Ugly | Mark Thornton
misesmedia
24
7:45
What's the best wording for the non-aggression principle?
RidleyReport
25
23:59
Yellow Journalism and Cheech and Chong: Drug Policy in the 70s
misesmedia
26
33:08
Just Say No: Reagan Militarizes the War on Drugs
misesmedia
27
24:18
America's Prison Population Bomb
misesmedia
The Political Thought of Étienne de La Boétie - The Politics of Obedience: The Discourse of Voluntary Servitude
The Politics of Obedience: The Discourse of Voluntary Servitude by Étienne de La Boétie (narrated by Dr. Floy Lilley). Download/read here: https://mises.org/library/politics-ob...
Wednesday, October 18, 2017
Prosecuting Duterte
See - http://www.jurist.org/forum/2017/10/perfecto-caparas-president-duterte.php
"x x x.
Prosecuting President Duterte
Tuesday 10 October 2017 at 9:50 PM ETedited by Sean Merritt
JURIST Guest Columnist Perfecto Caparas of the Indiana University Robert H. McKinney School of Law discusses how Philippine President Rodrigo Duterte could face prosecution under international law...
In the face of charges of ordering and condoning the murder of thousands of civilians by the Philippine National Police, President Rodrigo Duterte boasts that he is immune from suit. A former prosecutor himself, Duterte touts immunity as an armor.
The Rome Statute [PDF] of the International Criminal Court created the first permanent global criminal court to hear and try genocide, crimes against humanity, and war crimes. The Philippines validly ratified the Rome Statute, pursuant to Section 21, Article VII (Executive Department) of the 1987 Philippine Constitution. The Rome Statute entered into force in the Philippines on November 1, 2011.
Its domestic counterpart, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851) took effect 15 days after its publication in the Official Gazette on December 11, 2009.
Sitting presidents like Duterte can thenceforth be investigated, prosecuted, tried and punished under RA 9851 for war crimes, genocide, or other crimes against humanity before Philippine courts even during their tenure. No impeachment needed. No need for them to finish their term. Those constitute unjustifiable and inexcusable crimes - the gravest forms of human rights violations - and, therefore, absolutely prohibited. The President retains her or his immunity, true; but not for "core crimes" under Art. 5 of the Rome Statute.
RA 9851 purportedly accords immunity to the President, at least during her or his tenure. Under Sec. 9(a), Chapter V (Some Principles of Criminal Liability), the President is supposedly immune from being hauled into court during his or her tenure.
The Rome Statute lacks any provision comparable to the "other than the established constitutional immunity from suit of the Philippine President during his/her tenure" qualifier found in Sec. 9(a) of RA 9851. The Rome Statute's silence on immunity from suit of heads of state, for "core crimes" punishable under Art 5, speaks volumes. This is precisely because no immunity for genocide, crimes against humanity, or war crimes exists.
Rome Statute Art. 27, para. 2 (Irrelevance of official capacity) accords no immunity at all to heads of state because, according to its preamble, such crimes are characterized by "unimaginable atrocities that deeply shock the conscience of humanity". No immunity for war crimes, crimes against humanity and genocide exists since "such grave crimes threaten the peace, security and well-being of the world".
Shorn of immunity, heads of state can legally be investigated, prosecuted, tried and punished for these crimes in order "to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes". Breaking the walls of impunity will surely "guarantee lasting respect for and the enforcement of international justice".
Hence, the Rome Statute provides that immunities "shall not bar the Court from exercising its jurisdiction over such a person." Instead of according heads of state with immunity, the Rome Statute seeks to destroy impunity. Non-immunity of heads of state from criminal prosecution deters the commission of mass atrocities.
The Rome Statute's Art. 27 collides with Sec. 9(a) of RA 9851 on presidential immunity from suit for the worst international crimes. Having been a later act of both the President and the Senate, the Rome Statute ratification expresses the latest, specific intent of the President and the Senate - on behalf of the Philippine state - for the President to be legally bound by the Rome Statute, including its Art. 27 provision on the "[i]rrelevance of official capacity". This later act of ratifying the Rome Statute effectively nullifies the immunity from suit, under Sec. 9(a) of RA 9851, of the President insofar as those crimes are concerned, assuming arguendothat such immunity was valid in the first place.
Furthermore, the Philippine ratification of the Rome Statute indicates the intent on the part of the state to further achieve its purpose in enacting RA 9851 into law. In light of RA 9851's primary aim and purpose in Sec. 2(e) (Declaration of Principles and State Policies), the proper statutory interpretation then must be that, in ratifying the Rome Statute, the Philippine President and the Senate concurrently intended to reinforce and strengthen RA 9851 by removing any presidential immunity from suit for crimes under RA 9851. This, in order to achieve both RA 9851's and the Rome Statute's fundamental objective "to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes" (Sec. 2[e], RA 9851).
The Philippines' ratification of the Rome Statute reflects the subsequent and latest will of the state, as expressed through the President's signing of the Rome Statute's instrument of ratification with the subsequent concurrence of the Philippine Senate on August 23, 2011. The effective ratification of the Rome Statute supersedes and repeals Sec 9(a) of RA 9851. It shows its intent to fully carry out and fulfill the Philippine state's obligation under the Rome Statute and its RA 9851 domestic counterpart to end impunity.
The incorporation clause of the 1987 Constitution (Sec. 2, Art. II) also renders nugatory the presidential privilege of immunity stated in Sec. 9(a) of RA 9851 for being violative of jus cogens principles or peremptory norms of customary international law. The Constitution's "generally accepted principles of international law" include customary international law, comprising uniform and consistent state practices performed out of a sense of legal obligation. The Rome Statute also embodies jus cogens or peremptory norms of customary international law which are non-derogable. Those cannot be deviated from under any and all circumstances at all times, anywhere in the world. Jus cogens norms prohibit slavery, genocide, torture, crimes against humanity and war crimes.
RA 9851's presidential immunity from suit is therefore void ab initio. Heads of state have no immunity for war crimes, genocide and crimes against humanity, as established in the Nuremberg judgment [PDF] and the Pinochet decision in Regina v. Bartle. Such "exception" is tantamount to according impunity to sitting presidents for these most egregious forms of international crimes. It's incompatible with jus cogens or peremptory norms of customary international law.
Perfecto Caparas serves as the Associate Director of Graduate Programs and a Doctor of Juridical Science candidate of Indiana University Robert H. McKinney School of Law. He holds a Master of Laws (LLM) degree in American Law for Foreign Lawyers and an LLM in Human Rights (Honors). He is a lifetime member of the Integrated Bar of the Philippines.
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House to overhaul the obsolete penal code - By Cecilio Arillo - October 16, 2017
See - https://businessmirror.com.ph/house-to-overhaul-the-obsolete-penal-code/
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THE House Committee on Justice chaired by Rep. Reynaldo V. Umali of the Second District of Oriental Mindoro has sought the immediate passage of House Bill (HB) 6204 meant to make the obsolete Revised Penal Code (RPC) responsive to the country’s worsening crime situation.
“The present code was based on the Spanish Codigo Penal, which was enforced in the Philippines beginning in 1896. Today, so many years have elapsed, but no amendments or revisions were made,” Umali lamented.
He explained that, eight decades after, special penal laws proliferated in the Philippines, resulting in legal complications that make the task even more burdensome to restructure, or integrate it into one efficient code.
“We can hardly keep track of the exact number of penal laws that we have, and there is difficulty in determining which law or laws are to be used to prosecute a particular criminal conduct,” Umali, himself a lawyer, said.
The measure, also coauthored by Speaker Pantaleon D. Alvarez, Majority Leader Rodolfo C. Fariñas Sr. and Reps. Marlyn Primicias-Agabas of the Sixth District of Pangasinan and Ramon Rocamora of the Lone District of Siquijor, is likewise intended to incorporate all other special penal laws into a single criminal code.
These include:
Updating and revising existing penal laws to make them relevant in accordance with current international best practices;
Integrating special laws in order to have one code for all criminal laws;
Strengthening the criminal justice system through relevant laws to address present societal problems; and
Strengthening the criminal justice system through relevant laws to address present societal problems; and
Ensuring that there will be a single and unified criminal code, taking into consideration future laws to be passed.
Umali pointed out the importance of the speedy passage of the proposed Philippine Code of Crimes, which, he said, will consolidate and update the RPC and other special penal laws into a single penal code to make it more responsive to the reforms needed in the country’s criminal justice system.
According to Umali, the RPC contains antiquated provisions that punish crimes that are no longer relevant. He added that some of the penalties and punishments have already become ineffective.
“Congress is a very good venue for us to undertake reforms in the criminal justice system. Through Congress, we will have a better access to all stakeholders involved,” he said.
HB 6204 covers Book 1 of the RPC, which is the result of the initiative of the Code of Crimes Committee spearheaded by the Institute of Government and Law Reform (IGLR) of the UP Law Center.
The UP Law Center, through the IGLR, constituted the Code of Crimes Committee composed of criminal-law experts, members of the bench and House members Umali, Primicias-Agabas and Rocamora.
“When I learned that they have already completed Book 1, and some titles and chapters in Book 2 are either complete, almost complete or just undergoing some refinements, I proposed that Congress should proceed to tackle HB 6204, the Book 1 of the Code of Crimes, which was recently referred to the committee to allow the creation of the special technical working groups that would continue to work on the unfinished business of the UP [University of the Philippines] Law Center,” Umali said.
“This is a common undertaking with the Integrated Bar of the Philippines for the rolling out of this new code of crimes,” Umali added.
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Umali pointed out the importance of the speedy passage of the proposed Philippine Code of Crimes, which, he said, will consolidate and update the RPC and other special penal laws into a single penal code to make it more responsive to the reforms needed in the country’s criminal justice system.
According to Umali, the RPC contains antiquated provisions that punish crimes that are no longer relevant. He added that some of the penalties and punishments have already become ineffective.
“Congress is a very good venue for us to undertake reforms in the criminal justice system. Through Congress, we will have a better access to all stakeholders involved,” he said.
HB 6204 covers Book 1 of the RPC, which is the result of the initiative of the Code of Crimes Committee spearheaded by the Institute of Government and Law Reform (IGLR) of the UP Law Center.
The UP Law Center, through the IGLR, constituted the Code of Crimes Committee composed of criminal-law experts, members of the bench and House members Umali, Primicias-Agabas and Rocamora.
“When I learned that they have already completed Book 1, and some titles and chapters in Book 2 are either complete, almost complete or just undergoing some refinements, I proposed that Congress should proceed to tackle HB 6204, the Book 1 of the Code of Crimes, which was recently referred to the committee to allow the creation of the special technical working groups that would continue to work on the unfinished business of the UP [University of the Philippines] Law Center,” Umali said.
“This is a common undertaking with the Integrated Bar of the Philippines for the rolling out of this new code of crimes,” Umali added.
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