Promulgation of judgment in criminal cases; when presence needed; sanctions - G.R. No. 192164

G.R. No. 192164

"x xx .

Sec. 6 of Rule 120 of the Rules of Court provides:

Promulgation of judgment. – The judgment is promulgated by reading it in the presence of the accused and any judge of the Court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court.

... ... ...

In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgement in the criminal docket and serving him a copy thereof at his last known address or thru his counsel.

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these Rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. (Emphasis supplied.)

Petitioner was charged with and found guilty of perjury. He was sentenced to suffer imprisonment of 4 months and 1 day to 1 year, a period which is considered as a correctional penalty. Under Article 9 of the Revised Penal Code, light felonies are those infractions of law for the commission of which the penalty of arresto menor (one to thirty days of imprisonment) or a fine not exceeding two hundred pesos (P200), or both are imposable. Thus, perjury is not a light felony or offense contemplated by Rule 120, Sec. 6. It was therefore mandatory for petitioner to be present at the promulgation of the judgment.

To recall, despite notice, petitioner was absent when the MTCC promulgated its judgment on 25 August 2009. Pursuant to Rule 120, Sec. 6, it is only when the accused is convicted of a light offense that a promulgation may be pronounced in the presence of his counsel or representative. In case the accused failed to appear on the scheduled date of promulgation despite notice, and the failure to appear was without justifiable cause, the accused shall lose all the remedies available in the Rules against the judgment. One such remedy was the Motion for Reconsideration of the judgment of the MTCC filed by petitioner on 28 August 2009. Absent a motion for leave to avail of the remedies against the judgment, the MTCC should not have entertained petitioner’s Motion for Reconsideration. Thus, petitioner had only 15 days from 25 August 2009 or until 9 September 2009 to file his Motion for Probation. The MTCC thus committed grave abuse of discretion when it entertained the motion instead of immediately denying it.

In People of the Philippines v. De Grano,[12] we stated:

When the Decision dated April 25, 2002 was promulgated, only Estanislao Lacaba was present. Subsequently thereafter, without surrendering and explaining the reasons for their absence, Joven, Armando, and Domingo joined Estanislao in their Joint Motion for Reconsideration. In blatant disregard of the Rules, the RTC not only failed to cause the arrest of the respondents who were at large, it also took cognizance of the joint motion.

The RTC clearly exceeded its jurisdiction when it entertained the joint Motion for Reconsideration with respect to the respondents who were at large. It should have considered the joint motion as a motion for reconsideration that was solely filed by Estanislao. Being at large, Joven and Domingo have not regained their standing in court. Once an accused jumps bail or flees to a foreign country, or escapes from prison or confinement, he loses his standing in court; and unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right to seek relief from the court. (Emphasis supplied.)

Petitioner asserts that his failure to appear during the promulgation was for a justifiable cause. He alleges that he was on board an international vessel as a seaman at the time of the promulgation. He further alleges that the MTCC was informed of this fact. He insists that his absence was justified, thus exempting him from the application of Rule 120, Sec. 6.

Petitioner, however, did not file a motion for leave to avail himself of the remedies prior to filing his Motion for Reconsideration. The hearing on the motion for leave would have been the proper opportunity for the parties to allege and contest whatever cause prevented petitioner from appearing on 25 August 2009, and whether that cause was indeed justifiable. If granted, petitioner would have been allowed to avail himself of other remedies under the Rules of Court, including a motion for reconsideration.

Moreover, in his Reply[13] filed on 14 October 2010, petitioner belatedly questions the propriety of the promulgation. In so doing, petitioner is barred by estoppel for failing to raise the issue at the earliest possible opportunity, that is, when the case was still pending with the MTCC.

As a final point, while we held in Yu v. Samson-Tatad[14] that the rule in Neypes is also applicable to criminal cases regarding appeals from convictions in criminal cases under Rule 122 of the Rules of Court, nevertheless, the doctrine is not applicable to this case, considering that petitioner’s Motion for Probation was filed out of time.

WHEREFORE, in view of foregoing, the Petition is DENIED. The Order issued by the Regional Trial Court in Special Civil Action Case No. 0001-10 is AFFIRMED.

SO ORDERED.

x x x."

Supreme Court; rule-making power under the Const. - G. R. Nos. 187117 and 187127

G. R. Nos. 187117 and 187127

"x x x.

The petition, however, must fail.

The crux of the matter in the present case is whether or not this Court violated Sec. 90 of R.A. 9165 when it issued A.M. 03-8-02-SC, particularly Chap. V, Sec. 9, which prescribes the manner in which the executive judge reassigns cases in instances of inhibition or disqualification of judges sitting in special courts. Petitioner insists that should respondent judge (now Judge Fe Gallon-Gayanilo of Branch 35) continue hearing and trying the case, it “would result in the circumvention of the legislative conferment of jurisdiction to a court to exclusively try and hear drug offenses only.”[14]

Contrary to the assertion of petitioner, this Court did not commit any violation of R.A. 9165 when it issued the assailed guidelines. Rather, it merely obeyed Article VIII, Sec. 5(5) of the 1987 Constitution, which mandates that the rules promulgated by this Court should provide a simplified and inexpensive procedure for the speedy disposition of cases, in conformity with the right of all persons to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.[15] As this Court stated inSan Ildefonso Lines v. Court of Appeals,[16] there must be a renewed adherence to the time-honored dictum that procedural rules are designed not to defeat, but to safeguard, the ends of substantial justice.

Petitioner grounds its assertion on Sec. 90 of R.A. 9165, which states:

Jurisdiction. — The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction.

... ... ...

Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution.

Petitioner interprets the above provision to mean that a court must be specifically designated by the Supreme Court as a special court. But what is Chap. V, Sec. 9 of A.M. No. 03-8-02-SC if not an express designation of a special court?

Chap. V, Sec. 9 of A.M. No. 03-8-02-SC provides:

Raffle and re-assignment of cases in special courts where judge is disqualified or voluntarily inhibits himself/herself from hearing case. — (a) Where a judge in a court designated to try and decide

... ... ...

(3) cases involving violations of the Dangerous Drugs Act, or ...

is disqualified or voluntarily inhibits himself/herself from hearing a case, the following guidelines shall be observed:

... ... ...

(ii) Where there are more than two special courts of the same nature in the station, the Executive Judge shall immediately assign the case by raffle to the other or another special court of the same nature. In case the Presiding Judge of the other special court is also disqualified or inhibits himself/herself, the case shall be forwarded to the pairing judge of the special court which originally handled the said case. If the pairing judge is also disqualified or inhibits himself/herself, the case shall be raffled to the other regular courts. At the next raffle, an additional case shall be assigned to the disqualified or inhibiting judge/s to replace the case so removed from his/her/their court... (Emphasis supplied.)

Under R.A. 9165, Congress empowered this Court with the full discretion to designate special courts to hear, try and decide drug cases. It was precisely in the exercise of this discretionary power that the powers of the executive judge were included in Chap. V, Sec. 9 of A.M. No. 03-8-02-SC vis-à-vis Sec. 5(5) of Article VIII of the 1987 Constitution. Thus, in cases of inhibition or disqualification, the executive judge is mandated to assign the drug case to a regular court in the following order: first, to the pairing judge of the special court where the case was originally assigned; and, second, if the pairing judge is likewise disqualified or has inhibited himself, then to another regular court through a raffle. Under these exceptional circumstances, this Court designated the regular court, ipso facto, as a special court – but only for that case. Being a “designated special court,” it is likewise bound to follow the relevant rules in trying and deciding the drug case pursuant to R.A. 9165.

Petitioner also contends that the legislative intent of R.A. 9165 is “to make use of the expertise of trial judges in complicated and technical rules of the special drug law.” Thus, petitioner suggests that in instances in which all the judges of special courts have inhibited themselves or are otherwise disqualified, the venue for the affected drug cases should be transferred to the nearest station that has designated special courts.

Petitioner’s suggestion is ill-advised. To subscribe to this suggestion is to defeat the purpose of the law. Undoubtedly, petitioner’s unwarranted suggestion would entail the use of precious resources, time and effort to transfer the cases to another station. On the other hand, the assailed guidelines provide for a much more practical and expedient manner of hearing and deciding the cases. To reiterate, over and above utilizing the expertise of trial judges, the rationale behind Sec. 90 of R.A. 9165 and Chap. V, Sec. 9 of A.M. No. 03-8-02-SC is to effect an efficient administration of justice and speedy disposition of cases, as well as to breathe life into the policy enunciated in Sec. 2 of R.A. 9165, to wit:

Declaration of policy. – It is the policy of the State to safeguard the integrity of its territory and the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well-being, and to defend the same against acts or omissions detrimental to their development and preservation. In view of the foregoing, the State needs to enhance further the efficacy of the law against dangerous drugs, it being one of today's more serious social ills.

Toward this end, the government shall pursue an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs, and projects. The government shall however aim to achieve a balance in the national drug control program so that people with legitimate medical needs are not prevented from being treated with adequate amounts of appropriate medications, which include the use of dangerous drugs.

It is further declared the policy of the State to provide effective mechanisms or measures to re-integrate into society individuals who have fallen victims to drug abuse or dangerous drug dependence through sustainable programs of treatment and rehabilitation. (Emphasis supplied.)

As a matter of fact, this Court also issued similar guidelines with regard to environmental cases,[17] election cases involving elective municipal officials,[18] and cases that involve killings of political activists and members of media.[19] Foremost in its mind is the speedy and efficient administration of justice.

Petitioner further points out that this Court issued A.M. No. 05-9-03-SC to define the phrase “to exclusively try and hear cases involving violations of this Act” to mean “...[c]ourts designated as special courts for drug cases shall try and hear drug-related cases only, i.e., cases involving violations of RA 9165, to the exclusion of other courts.” Hence, petitioner submits, drug cases should not be assigned to regular courts according to the procedure provided in A.M. No. 03-8-02-SC; in other words, the two issuances contradict each other.

Again, this Court disagrees.

Petitioner underestimates the rule-making power of this Court. Nothing in A.M. No. 05-9-03-SC or in A.M. No. 03-8-03-SC suggests that they contradict each other. In fact, both were issued with a common rationale, that is, to “expeditiously resolve criminal cases involving violations of R.A. 9165,” especially in the light of the strict time frame provided in Sec. 90 of R.A. 9165. Both provide for the guidelines regarding the assignment of drug cases to special courts. Thus, A.M. No. 05-9-03-SC provides for the exemption of special courts from the regular raffle under normalcircumstances, while A.M. No. 03-8-02-SC provide for the assignment of drug cases to special courts except under special circumstances that would warrant reassignment to a regular court.

Moreover, the exemption of special courts from the regular raffle was not established as an ironclad rule. A.M. No. 05-9-03-SC does in fact allow special courts to acquire jurisdiction over cases that are not drug cases. In the interest of justice, executive judges may recommend to the Supreme Court the inclusion of drug courts in the regular raffle, and this Court has the discretion to approve the recommendation, as the Resolution states:

WHEREFORE, Executive Judges and presiding judges of special courts for drug cases shall hereby observe the following guidelines:

... ... ...

4. If, in the opinion of Executive Judges, the caseload of certain drug courts allows their inclusion in the regular raffle without adversely affecting their ability to expeditiously resolve the drug cases assigned to them and their inclusion in the regular raffle becomes necessary to decongest the caseload of other branches,the concerned Executive Judges shall recommend to this Court the inclusion of drug courts in their jurisdiction in the regular raffle. The concerned drug courts shall remain exempt from the regular raffle until the recommendation is approved. (Emphasis supplied.)

In conclusion, the two sets of guidelines are examples of this Court’s foresight and prudence in the exercise of its rule-making power. These guidelines were issued to prevent or address possible scenarios that might hinder the proper administration of justice.

WHEREFORE, in view of the foregoing, the Petition for Prohibition is DISMISSED for lack of merit.

SO ORDERED.

x x x."

Hierarchy of courts doctrine; exception - G. R. Nos. 187117 and 187127

G. R. Nos. 187117 and 187127

"x x x.

At the outset, it is an established policy that parties must observe the hierarchy of courts before they can seek relief directly from this Court. Therationale for this rule is twofold: (a) it would be an imposition upon the limited time of this Court; and (b) it would inevitably result in a delay, intended or otherwise, in the adjudication of cases, which in some instances, had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because this Court is not a trier of facts.[13] It is only for special and compelling reasons that this Court shall exercise its primary jurisdiction over the extraordinary remedy of writ of prohibition. However, in the case at bar, since it is only the Supreme Court itself that can clarify the assailed guidelines, petitioner is exempted from this rule.

x xx."

Procedural due process explained - G.R. No. 191224

G.R. No. 191224

"x x x.

The Procedural Due Process Issue

Procedural due process is the constitutional standard demanding that notice and an opportunity to be heard be given before judgment is rendered. As long as a party is given the opportunity to defend his interests in due course, he would have no reason to complain; the essence of due process is in the opportunity to be heard.^[17] A formal or trial-type hearing is not always necessary.

In this case, while the petitioner did not participate in the August 17, 2006 pre-hearing conference (despite receipt on August 14, 2006 of a fax copy of the August 11, 2006 order), Garcia’s decision of February 21, 2007 duly considered and discussed the defenses raised in Atty. Molina’s pleadings, although the answer was ordered expunged from the records because it was unverified and because Atty. Molina failed to submit a letter of authority to represent the petitioner.

What negates any due process infirmity is the petitioner’s subsequent motion for reconsideration which cured whatever defect the Hearing Officer might have committed in the course of hearing the petitioner’s case.^[18]Again, Garcia duly considered the arguments presented in the petitioner’s motion for reconsideration when he rendered the June 6, 2007resolution.^[19] Thus, the petitioner was actually heard through his pleadings.

Findings of facts of administrative bodies accorded finality when supported by substantial evidence

Misconduct has a legal and uniform definition. Misconduct has been defined as an intentional wrongdoing or a deliberate violation of a rule of law or standard of behavior, especially by a government official.[20] A misconduct is grave where the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are present.[21] Otherwise, a misconduct is only simple.

No doubt exists in our mind that the petitioner committed misconduct in this case. The records clearly show that the petitioner committed the acts complained of, i.e., he approved the requests for salary loans of eight GSIS Naga Field Office employees who lacked the necessary contribution requirements under PPG No. 153-99. After a careful review of the records, however, we disagree with the findings of the GSIS, the CSC and the CA that the petitioner’s acts constituted grave misconduct. While we accord great respect to the factual findings of administrative agencies that misconduct was committed, we cannot characterize the offense committed as grave. No substantial evidence was adduced to support the elements of “corruption,” “clear intent to violate the law” or “flagrant disregard of established rule” that must be present to characterize the misconduct as grave.

We are aware that to the CSC, the mere act of approving the loan applications on several occasions proves the element of flagrant disregard of established rules to constitute grave misconduct. Thus, it said:

The act of the appellant in approving salary loan applications of his subordinates over and above the prescribed rates under the GSIS policy, not only once but several times, indicates his flagrant and wanton transgression of the said policy. He, in fact, abused his authority in doing so.[22]

Flagrant disregard of rules is a ground that jurisprudence has already touched upon. It has been demonstrated, among others, in the instances when there had been open defiance of a customary rule;[23] in the repeated voluntary disregard of established rules in the procurement of supplies;[24] in the practice of illegally collecting fees more than what is prescribed for delayed registration of marriages;[25] when several violations or disregard of regulations governing the collection of government funds were committed;[26] and when the employee arrogated unto herself responsibilities that were clearly beyond her given duties.[27] The common denominator in these cases was the employee’s propensity to ignore the rules as clearly manifested by his or her actions.

Under the circumstances of the present case, we do not see the type of open defiance and disregard of GSIS rules that the CSC observed. In fact, the CSC’s findings on the petitioner’s actions prior to the approval of the loans negate the presence of any intent on the petitioner’s part to deliberately defy the policy of the GSIS. First, GSIS branch managers have been granted in the past the authority to approve loan applications beyond the prescribed requirements of GSIS; second, there was a customary lenient practice in the approval of loans exercised by some branch managers notwithstanding the existing GSIS policy; and third, the petitioner first sought the approval of his immediate supervisor before acting on the loan applications. These circumstances run counter to the characteristic flagrant disregard of the rules that grave misconduct requires.

Thus, the petitioner’s liability under the given facts only involves simple misconduct. As Branch Manager of the GSIS Naga Field Office, he is presumed to know all existing policies, guidelines and procedures in carrying out the agency’s mandate in the area. By approving the loan applications of eight GSIS Naga Field Office employees who did not fully meet the required qualifications, he committed a serious lapse of judgment sufficient to hold him liable for simple misconduct.

The Revised Uniform Rules of the Civil Service (Civil Service Rules)classifies simple misconduct as a less grave offense. Under Section 52(B) (2), Rule IV of the Civil Service Rules, the commission of simple misconduct is penalized by suspension for one (1) month and one (1) day to six (6) months for the first offense, and dismissal from the service for the second offense. While records show that this is not the petitioner’s first offense as he was previously suspended for one (1) year for neglect of duty, we believe that his dismissal would be disproportionate to the nature and effect of the transgression he committed as the GSIS did not suffer any prejudice through the loans he extended; these loans were for GSIS employees and were duly paid for. Thus, for his second simple misconduct, we impose on the petitioner the penalty of suspension from the lapse of his preventive suspension by GSIS up to the finality of this Decision.[28]

WHEREFORE, premises considered, we PARTIALLY GRANT the petition for review on certiorari and MODIFY the assailed decision and resolution of the Court of Appeals. Petitioner Monico K. Imperial, Jr. is found GUILTY of SIMPLE MISCONDUCT and is hereby SUSPENDEDfrom the time the preventive suspension that GSIS imposed lapsed, up to the finality of this Decision.

SO ORDERED.

x x x."

JURIST - Paper Chase: Gay rights group challenges Defense of Marriage Act

JURIST - Paper Chase: Gay rights group challenges Defense of Marriage Act

"xxx.

[JURIST] Servicemembers Legal Defense Network(SLDN) [advocacy website] filed suit Thursday in the US District Court for the District of Massachusetts[official website] challenging [text, PDF; press release] the federal Defense of Marriage Act (DOMA) [text; JURIST news archive]. DOMA defines marriage for federal purposes as a legal union between one man and one woman. The suit alleges that DOMA unconstitutionally denies gay and lesbian service members equal protection under the law. The suit further alleges that "[t]here is no enumerated power in the Constitution that allows the federal government to define marriage in such a way as to deny Plaintiffs the benefits they seek, and the Tenth Amendment entrusts the regulation of marriage to the states." The plaintiffs are seeking:

[T]he same recognition, family support and benefits for their same-sex spouses that the military has provided and currently provides to opposite-sex spouses of current and former service members. These benefits include medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefits, and the right to be buried together in military cemeteries.

Major Shannon McLaughlin, one of the lead plaintiffs in the case, said that she had a "duty" to fight for equality [Advocate report]. Gay & Lesbian Advocates & Defenders (GLAD) [advocacy website] is expected to file a brief in support of SLDN's lawsuit.

In September Don't Ask, Don't Tell (DADT) [10 USC § 654; JURISTbackgrounder] was officially repealed [JURIST report]. With the repeal of the law, the military can no longer prevent gays and lesbians from serving openly among its ranks. US President Barack Obama [official website] told gay rights activists earlier this month that he wouldcontinue to fight for the repeal [JURIST report] of DOMA, reinforcing that the DOJ is not defending its constitutionality. However, HouseSpeaker John Boehner (R-OH) [official website] announced in March that he was launching a legal advisory group to defend [JURIST report] DOMA, stating "[t]he constitutionality of this law should be determined by the courts, not by the president unilaterally, and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution." In February, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed. A July 2010ruling [JURIST report] by the US District Court for the District of Massachusetts found that Section 3 of DOMA violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. Currently DOMA allows other states to ignore those recognized same-sex marriages, and prevents same-sex couples from receiving federal benefits available to married couples.

xxx."

The Shocking, Graphic Data That Shows Exactly What Motivates the Occupy Movement | | AlterNet

The Shocking, Graphic Data That Shows Exactly What Motivates the Occupy Movement | | AlterNet

"xxx.

What are the Occupy Wall Street protesters angry about? The same things we’re all angry about. The only difference is the protestors turned their anger into public action. Occupy Wall Street lit the embers and the sparks are flying. Whether it turns into a genuine populist prairie fire depends on all of us.

Now is not the time for wonky policy solutions, as the media meatheads are calling for. Rather, it’s time to air our grievances as loudly as possible, which is precisely what Wall Street and its minions fear the most. Here’s a brief list of why we should be angry and the charts to back it up.

xxx."

Read article. Click link.

JURIST - Paper Chase: California marijuana advocates file suit against federal government

JURIST - Paper Chase: California marijuana advocates file suit against federal government

"x x x.

[JURIST] Medical marijuana advocates Thursday filed suit [press release] in a California federal court seeking declaratory and injunctive relief against the federal government for its recent crackdown on marijuana dispensaries in the state. Americans for Safe Access(ASA) [advocacy website] petitioned [complaint, PDF] the US District Court for the Northern District of California [official website] to intervene in what the Oakland-based advocacy group claims is a coercive attempt by the federal government to hijack California's state lawmaking authority. The actions in question are part of a coordinated effort announced earlier this month [press release] by California's four US Attorneys, including indictments, civil forfeiture lawsuits against owners of property on which medical marijuana dispensaries operate and dozens of warning letters to other operators and landlords of marijuana stores and to local officials who might implement the state's decriminalization law. ASA's complaint acknowledges the federal government's right to enforce in the states "in an even-handed manner" federal criminal laws against marijuana, but cites the Tenth Amendment [Cornell LII backgrounder] as protecting California's sovereign right to decriminalize marijuana for medical use:

ASA does not challenge the congressional authority to enact laws criminalizing possession and/or control of marijuana ... Nor does ASA challenge the federal government's general authority to enforce its drug laws in the State of California. It is, rather, the government's tactics, and the unlawful assault on state sovereignty they represent, that form the gravamen of ASA's claim. Under the Tenth Amendment, the government may not commandeer the law-making functions of the State of its subdivisions directly or indirectly through the selective enforcement of its drug laws.

Essentially the suit accuses federal agencies of commandeering California's legislative function and interfering with local laws meant to distinguish between medical and non-medical use. ASA's lawsuit was brought on behalf of its 20,000 California members who are "directly and adversely affected" by the federal government's actions.

US courts have been forced to interpret medical marijuana statutes in recent years. Arizona Governor Jan Brewer (R) [official website] announced in June that the state is filing a federal lawsuit [JURIST report] seeking a declaratory judgment over the legality of the state's controversial medical marijuana law passed last November. In January 2010, the California Supreme Court [official website] overturned[JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials]. Earlier that month, New Jersey became the fourteenth US state [JURIST report] to legalize medical marijuana. In November 2009, voters in Maine approved [JURIST report] an expansion of the state's existing medical marijuana laws, making Maine the fifth state to allow dispensaries, following California, Colorado, Rhode Island and New Mexico. California's Fourth District Court of Appeal ruled in 2008 that the MMP is not in conflict with the Supremacy Clause [JURIST report] and does not violate the Controlled Substances Act (CSA) [text].

"xxx."

Manila’s Economic Headache | New Leaders Forum

Manila’s Economic Headache | New Leaders Forum

"x x x.

More than 40 percent of the population is living in poverty, while the GINI coefficient (0.44), a measure of income equality and distribution, is among the worst in the Southeast Asian region. Additionally, the Philippines has one of the highest rates of population growth in Asia. Unemployment rates are also among the highest in the region, while underemployment is in double-digit territory. Real wages have practically stagnated in the last three decades, while food and oil inflation – predominantly determined by movements in the volatile global commodity markets – continues to depress income growth, pushing many low-income families below the poverty line.

The only way for the Philippines to reverse these structural trends and tackle its huge youth bulge is to maintain robust levels of annual GDP growth – probably something around 7 percent. However, there are major obstacles to attaining and sustaining such levels of growth.

In recent years, the Philippines has experienced robust rates of growth while improving its overall competitiveness. However, according to the Global Economic Competitiveness Index, the country is still the least competitive economy in the Asia-Pacific region. The country scored very poorly on research and development (R&D) and infrastructure. This reflects a systemic problem in the Philippine economy. Unless the country develops its workforce, science and technology sectors, along with infrastructure, it won’t be able to attract investment and establish a vibrant economy. On top of this, corruption is still a huge problem. These factors, for instance, explain why the Philippines has been consistentlyoutperformed by its peers in the region in terms of attracting Foreign Direct Investment (FDI).

In fact, recent growth has been highly dependent on remittances from overseas Filipino workers, retail industry, real estate, and business process outsourcing (BPO). Moreover, this growth can also be attributed to a ‘rebound’ – thanks to an earlier economic stimulus – from a low-base in 2009, when the Philippines was hit by the global financial crisis. The problem with over-reliance on remittances and services is two-fold: the growth isn’t followed by a significant increase in decent and secure employment opportunities for the majority of the population, and the country will remain vulnerable to cyclical changes in international markets. As a result, the Philippines might not be able to considerably reduce unemployment rates and sustain high rates of growth that could reverse staggering poverty and inequality levels in the country.

x x x."

Habeas corpus - FindLaw | Cases and Codes

FindLaw | Cases and Codes

"CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, SENTENCING, EVIDENCE

Cavazos v. Smith, No. 10-1115

In an appeal from a judgment of the appeals court granting petitioner habeas relief from her conviction for assault on a child resulting in death, judgment is reversed because the court erred in finding that petitioner's conviction was not supported by legally sufficient evidence where the state court decision was not "objectively unreasonable."

"x x x.

October 2011 Philippine Supreme Court Decisions on Commercial Law « LEXOTERICA: A PHILIPPINE BLAWG

October 2011 Philippine Supreme Court Decisions on Commercial Law « LEXOTERICA: A PHILIPPINE BLAWG

"x x x.

October 2011 Philippine Supreme Court Decisions on Commercial Law

November 2, 2011Hector M. de Leon JrLeave a commentGo to comments

Here are selected October 2011 rulings of the Supreme Court of the Philippines on commercial law:

Check; issuance for consideration. Upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for valuable consideration which may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. Under the Negotiable Instruments Law, it is presumed that every party to an instrument acquires the same for a consideration or for value. As petitioner alleged that there was no consideration for the issuance of the subject checks, it devolved upon him to present convincing evidence to overthrow the presumption and prove that the checks were in fact issued without valuable consideration. Sadly, however, petitioner has not presented any credible evidence to rebut the presumption, as well as North Star’s assertion, that the checks were issued as payment for the US$85,000 petitioner owed. Engr. Jose E. Cayanan vs. North Star International Travel, Inc. G.R. No. 172954. October 5, 2011

Rehabilitation receiver; role. As an officer of the court and an expert, the rehabilitation receiver plays an important role in corporate rehabilitation proceedings. In Pryce Corporation v. Court of Appeals, the Court held that, “the purpose of the law in directing the appointment of receivers is to protect the interests of the corporate investors and creditors.” Section 14 of the Interim Rules of Procedure on Corporate Rehabilitation enumerates the powers and functions of the rehabilitation receiver: (1) verify the accuracy of the petition, including its annexes such as the schedule of debts and liabilities and the inventory of assets submitted in support of the petition; (2) accept and incorporate, when justified, amendments to the schedule of debts and liabilities; (3) recommend to the court the disallowance of claims and rejection of amendments to the schedule of debts and liabilities that lack sufficient proof and justification; (4) submit to the court and make available for review by the creditors a revised schedule of debts and liabilities; (5) investigate the acts, conduct, properties, liabilities, and financial condition of the debtor, the operation of its business and the desirability of the continuance thereof, and any other matter relevant to the proceedings or to the formulation of a rehabilitation plan; (6) examine under oath the directors and officers of the debtor and any other witnesses that he may deem appropriate; (7) make available to the creditors documents and notices necessary for them to follow and participate in the proceedings; (8) report to the court any fact ascertained by him pertaining to the causes of the debtor’s problems, fraud, preferences, dispositions, encumbrances, misconduct, mismanagement, and irregularities committed by the stockholders, directors, management, or any other person; (9) employ such person or persons such as lawyers, accountants, appraisers, and staff as are necessary in performing his functions and duties as rehabilitation receiver; (10) monitor the operations of the debtor and to immediately report to the court any material adverse change in the debtor’s business; (11) evaluate the existing assets and liabilities, earnings and operations of the debtor; (12) determine and recommend to the court the best way to salvage and protect the interests of the creditors, stockholders, and the general public; (13) study the rehabilitation plan proposed by the debtor or any rehabilitation plan submitted during the proceedings, together with any comments made thereon; (14) prohibit and report to the court any encumbrance, transfer, or disposition of the debtor’s property outside of the ordinary course of business or what is allowed by the court; (15) prohibit and report to the court any payments outside of the ordinary course of business; (16) have unlimited access to the debtor’s employees, premises, books, records, and financial documents during business hours; (17) inspect, copy, photocopy, or photograph any document, paper, book, account, or letter, whether in the possession of the debtor or other persons; (18) gain entry into any property for the purpose of inspecting, measuring, surveying, or photographing it or any designated relevant object or operation thereon; (19) take possession, control, and custody of the debtor’s assets; (20) notify the parties and the court as to contracts that the debtor has decided to continue to perform or breach; (21) be notified of, and to attend all meetings of the board of directors and stockholders of the debtor; (22) recommend any modification of an approved rehabilitation plan as he may deem appropriate; (23) bring to the attention of the court any material change affecting the debtor’s ability to meet the obligations under the rehabilitation plan; (24) recommend the appointment of a management committee in the cases provided for under Presidential Decree No. 902-A, as amended; (25) recommend the termination of the proceedings and the dissolution of the debtor if he determines that the continuance in business of such entity is no longer feasible or profitable or no longer works to the best interest of the stockholders, parties-litigants, creditors, or the general public; and (26) apply to the court for any order or directive that he may deem necessary or desirable to aid him in the exercise of his powers. Siochi Fishery Enterprises, Inc., et al. vs. Bank of the Philippine Islands, G.R. No. 193872. October 19, 2011.

Rehabilitation; rehabilitation plan. The rehabilitation plan is an indispensable requirement in corporate rehabilitation proceedings. Section 5 of the Rules enumerates the essential requisites of a rehabilitation plan:

The rehabilitation plan shall include (a) the desired business targets or goals and the duration and coverage of the rehabilitation; (b) the terms and conditions of such rehabilitation which shall include the manner of its implementation, giving due regard to the interests of secured creditors; (c) the material financial commitments to support the rehabilitation plan; (d) the means for the execution of the rehabilitation plan, which may include conversion of the debts or any portion thereof to equity, restructuring of the debts, dacion en pago, or sale of assets or of the controlling interest; (e) a liquidation analysis that estimates the proportion of the claims that the creditors and shareholders would receive if the debtor’s properties were liquidated; and (f) such other relevant information to enable a reasonable investor to make an informed decision on the feasibility of the rehabilitation plan.

The Court notes that petitioners failed to include a liquidation analysis in their rehabilitation plan. Siochi Fishery Enterprises, Inc., et al. vs. Bank of the Philippine Islands, G.R. No. 193872. October 19, 2011.

(Hector thanks Rachel T. Uy for her assistance to Lexoterica.)

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