raissa robles | Why President Aquino can’t declare Martial Law in Tacloban

see - raissa robles | Why President Aquino can’t declare Martial Law in Tacloban


"x x x.

Just my opinion

by Raïssa Robles

Forget Martial Law.

But President Benigno Aquino may be able to declare a “state of emergency”. I will explain that at the end of this piece.

UPDATE: 12:36 pm of Monday, Noevember 11, 2013

A state of emergency has just been declared and a curfew imposed in Tacloban City.

Aquino will not declare Martial Law in typhoon-ravaged Tacloban City.

He can’t.

Not unless Tacloban residents stage a rebellion, such as declare themselves an independent state or take up arms against the government.

The present Philippine Constitution clearly states that Martial Law can only be declared by the sitting President under two circumstances -

ONE – in case of invasion
TWO – when there is a rebellion

But there is another condition super-imposed: only when “the public safety requires it” during an ongoing invasion or rebellion.

All these were safeguards imposed after the Marcos dictatorship’s abuse of martial law powers. And by the way, it would be highly ironic if Aquino declared Martial Law on an island that gave birth to some of the power players of the 1972 Martial Law – Imelda Romualdez-Marcos and her brother Benjamin “Kokoy” Romualdez. And whose clan continues to rule the province.

It was for this reason that in December 2009, following the Maguindanao massacre, then President Gloria Macapagal-Arroyo’s government had to go through the rigmarole of claiming the Ampatuans had staged a rebellion. This was in order to justify Arroyo’s declaration of Martial Law there.

You can read about it more by going to this link. The Ampatuan family’s rebellion case has since been tossed out by the court.

Can Aquino declare a “state of emergency” then?

That is a gray area in the Constitution which simply states -

“The President shall be the Commander-in-Chief of allarmed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.”

But notice the phrase “lawless violence”. The Constitution does not define what kind of violence there has to be in order to justify the calling of the armed forces. It is left to presidential discretion.

x x x."

Passage of local Lemon Law pushed | Tempo - News in a Flash

see - Passage of local Lemon Law pushed | Tempo - News in a Flash


"x x x.

Las Piñas City Representative Mark A. Villar has re-filed a legislation that aims to strengthen consumer protection, particularly that of buyers of motor vehicles which fail to meet the standards of quality and performance. He recently filed House Bill No. 3199 or “Lemon Law of 2013.”

The bill seeks to adopt the Philippine version of the US lemon law, with provisions appropriate to the country’s setting.

“Owning a motor vehicle is a big investment and could take a substantial chunk of one’s savings. But for some unfortunate buyers, such investment amounts to nothing after they acquired a “lemon” or those vehicles that fail to meet the standards of quality and performance,” said Villar.

In the explanatory note of his proposed bill, Villar cited that the lemon law originated in the United States. It was crafted primarily to return to the consumer the full value of his money. Among others, it provides that if a manufacturer or its authorized dealer cannot successfully repair a defective product within a reasonable number of repair attempts, the manufacturer must either promptly replace or repurchase the product.

“If the car has been repaired four or more times for the same defect within the warranty or Lemon Law Rightsperiod, yet the same non-conformity or defect continues to exist or the car is out of service due to repair for a cumulative total of 30 calendar day, the car qualifies as a lemon,” Villar said.

x x x."

Right against self-incrimination - G.R. No. 136051

see - G.R. No. 136051


"x x x.

Petitioners argue that the Court of Appeals gravely erred when it found that the trial court did not abuse its discretion when it refused to recognize petitioners Oscar Mapalo and Chito Rosete’s constitutional right against self-incrimination when, through its Orders dated 22 July 1997 and 27 August 1997, it allowed and scheduled the taking of their depositions by way of oral examination.  They explain they refuse to give their depositions due to the pendency of two criminal cases against them, namely, Batasan Pambansa Blg. 22 and Estafa, because their answers would expose them to criminal action or liability since they would be furnishing evidence against themselves in said criminal cases. They allege there can be no doubt that the questions to be asked during the taking of the deposition would revolve around the allegations in the complaint in the civil case which are identical to the allegations in the complaint-affidavits in the two criminal cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito Rosete.  Moreover, they explain that while an ordinary witness may be compelled to take the witness stand and claim the privilege against self-incrimination as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to answer any and all questions because the right against self-incrimination includes the right to refuse to testify.

In short, petitioners Mapalo and Chito Rosete refuse to have their depositions taken in the civil case because they allegedly would be incriminating themselves in the criminal cases because the testimony that would be elicited from them may be used in the criminal cases.  As defendants in the civil case, it is their claim that to allow their depositions to be taken would violate their constitutional right against self-incrimination because said right includes the right to refuse to take the witness stand.

In order to resolve this issue, we must determine the extent of a person’s right against self-incrimination.  A person’s right against self-incrimination is enshrined in Section 17, Article III of the 1987 Constitution which reads: “No person shall be compelled to be a witness against himself.” 

The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding.  The right is not to be compelled to be a witness against himself.  It secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime.  However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness.  It cannot be claimed at any other time.  It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether.  The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions.  It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty.[57]

As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness.  In People v. Ayson,[58] this Court clarified the rights of an accused in the matter of giving testimony or refusing to do so.  We said:

An accused “occupies a different tier of protection from an ordinary witness.”  Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others—

1) to be exempt from being a witness against himself, and

2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him.

            The right of the defendant in a criminal case “to be exempt from being a witness against himself” signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused.  He cannot be compelled to do so even by subpoena or other process or order of the Court.  He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself.  In other words – unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him – the defendant in a criminal action can refuse to testify altogether.  He can refuse to take the witness stand, be sworn, answer any question. Xx x (Underscoring supplied.)                

It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand.  The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded.  This Court applied the exception – a party who is not an accused in a criminal case is allowed not to take the witness stand – in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding.[59]  It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature.  As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand.  It is not the character of the suit involved but the nature of the proceedings that controls.[60]        

In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary witness, who can invoke the right against self-incrimination only when the incriminating question is propounded.  Thus, for a party in a civil case to possess the right to refuse to take the witness stand, the civil case must also partake of the nature of a criminal proceeding.

In the present controversy, the case is civil it being a suit for Annulment, Specific Performance with Damages.  In order for petitioners to exercise the right to refuse to take the witness stand and to give their depositions, the case must partake of the nature of a criminal proceeding.  The case on hand certainly cannot be categorized as such.  The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of the civil case will not give them the right to refuse to take the witness stand and to give their depositions. They are not facing criminal charges in the civil case.  Like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them.  Only if and when incriminating questions are thrown their way can they refuse to answer on the ground of their right against self-incrimination.

x x x."

Rethinking the functions of Congress | Inquirer Opinion

see - Rethinking the functions of Congress | Inquirer Opinion


"x x x.

Seeing how closely our congressmen and senators guard their power to recommend projects for their districts and constituencies, I wonder if the pork barrel issue is not mainly a problem of expectations about the functions of Congress. It appears that a good majority of the members of Congress do in fact see their role primarily in terms of how they can maximize their share of the pork barrel. In turn, voters tend to assess the performance of lawmakers mostly on the basis of how much in direct material benefits they can deliver.

It looks to me that this mindset is what permits our political leaders, including President Aquino himself, to argue that there is nothing intrinsically wrong with the Priority Development Assistance Fund (PDAF). What is wrong, they say, is the diversion of these public funds into the private pockets of lawmakers and their partners. Thus, what is derisively called patronage politics is not necessarily bad. It is just the way politics is conducted, given the realities of our society.

This view of our political system overlooks two things. The first is that this is not how the legislature’s function is described in the Constitution. The 1987 Constitution, like the ones that came before it, is remarkable in its modernity. It carefully differentiates the various functions of government and assigns these to separate and autonomous branches, thus creating a system of checks and balances. Accordingly, Congress passes laws, the Executive administers and enforces the laws, and the Judiciary resolves conflicts by issuing binding interpretations of the laws.

It is, of course, foolish to think that a constitution is self-executing. We have seen how the clearest constitutional provisions can be differently interpreted at different times by political leaders and magistrates alike. Some parts of a constitution may sometimes appear too advanced for the kind of society that exists, posing problems of incompatibility. Still, it is useful to think of a constitution as a set of guidelines and aspirations that a nation has to keep in mind if it is to stabilize its internal and external relationships. It is not unusual for a society, in the course of its evolution, to find itself becoming more faithful to its constitution. This is particularly true in countries that borrowed their institutions from their former colonial masters.

I think we have precisely come to that point where citizens feel they should not need the mediation of patrons to access public goods and services. I believe Filipinos have begun to see that the culture of patronage is an obstacle to democracy. Nowadays we see our people falling in line and patiently waiting for their turn. They protest when others jump the line or demand undue exemption from the rules. On this view, the PDAF is emblematic of that “datu-sakop” culture that treated the individual as unworthy of attention unless he/she was somehow connected to a chieftain.

But the second thing that the defenders of the PDAF cannot seem to understand is that the pork barrel system has become so vulnerable to abuse that it has become practically synonymous to corruption. How and when did this happen?

I think this happened more or less at the same time that the political order opened its doors to players from outside the traditional governing classes. The ethic of delicadeza or personal honor that constrained leaders in traditional society vanished almost overnight. New politicians saw public office as a lucrative occupation rather than as a vocation, spending huge sums of money to win positions whose functions they knew nothing about.

From being merely a tool of patronage, the pork barrel quickly morphed into a bottomless source of corruption. As electoral runs became more costly, the siphoning of public funds from pork barrel allocations became more vicious. Syndicates, like the nongovernment organizations linked to Janet Lim-Napoles that specialized in the systematic conversion of the PDAF into cash, proliferated. They bribed their way through the control system of the bureaucracy. They were untouchable because their principal clients—congressmen and senators—did not hesitate to deploy their considerable influence and powers to subdue any effort to audit them.

This system has long become dysfunctional as a means of delivering goods and services to remote communities and underserved constituencies. It has outlived its usefulness and cannot be reformed.

If public pressure against the pork barrel system is sustained, two good things can happen. The first is the more careful crafting of the national budget, entailing an expanded bottom-up-budgeting process that engages the various development councils and stakeholders at all levels of government. Hand in hand with this would be the empowerment of professional civil servants and their insulation from political interference.

The second desired outcome is perhaps more important. And that is the long overdue redefinition of the legislative function. Between a Congress that acts primarily as a dispenser of patronage and a Congress that styles itself as a deliberative body answering to a higher rationality, there is room for a legislature whose lawmaking and oversight function closely follows the day-to-day administration of government and its impact on the public. To me, the main function of such a Congress is to ensure the political system’s adequacy to the growing complexity of its environment.

This is serious, demanding work, not a part-time job for boxers, movie actors, TV hosts, and businessmen.

public.lives@gmail.com

x x x."

Read more: http://opinion.inquirer.net/64361/rethinking-the-functions-of-congress#ixzz2jvl0LCCr
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Aquino ‘likely to face ouster over special fund’

see - Aquino ‘likely to face ouster over special fund’


"x x x.

President Benigno Aquino may have had noble intentions when he approved the implementation of the Disbursement Acceleration Programme (DAP) but the controversial scheme may yet lead to his downfall, according to the Integrated Bar of the Philippines (IBP).


Vicente Joyas, IBP president, yesterday said that if the Supreme Court (SC) declares DAP unconstitutional, the president may be held liable for technical malversation, a solid ground for impeachment.


“That (technical malversation) is a ground for impeachment. They may be prosecuted for technical malversation and COA (Commission on Audit) shall require the return of the funds (released through DAP),” Joyas told Manila Times.


Last month, the IBP filed the fifth petition against DAP and asked the SC to order COA to conduct an immediate audit of the programme and disallow all public money spent through it.


Other petitions were separately filed by former Iloilo representative Augusto Syjuco, Manuelito Luna, Jose Malvar Villegas and the Philippine Constitution Association (Philconsa). Militant groups also filed a similar case before the High Court.


Joyas clarified that the IBP is not one of the proponents of the People’s Initiative campaign for the enactment of a budget reform law being pushed by former chief justice Reynato Puno. He said his group is more inclined at present to try out the judicial route to having DAP scrapped and declared illegal.


A magistrate of the High Court confirmed that criminal charges can be filed against Aquino, Budget Secretary Florencio “Butch” Abad, Executive Secretary Paquito Ochoa and Senate President Franklin Drilon over DAP.


The Justice, who spoke on condition of anonymity, claimed that due to the strength of the arguments in various petitions against DAP, the government officials may face charges of malversation or even plunder.


However, he said that the ruling of the SC en banc will determine the fate of Aquino and his men and whether or not they should be held criminally liable.


The magistrate said that the transfer of funds from one branch of government to another is illegal “per se.”


“The president is empowered under the 1987 Constitution to realign funds. But the big question is can he transfer it from the Executive Department to the Legislative Department?” the justice asked.


He explained that a government official who is accountable for keeping public funds may be found guilty of technical malversation once he or she transfers the funds from one office or one purpose to another.


“An ordinary government official who shall transfer funds from one hand to another is clearly committing technical malversation,” he told Manila Times.


The SC is set to deliberate on November 11, 2013, whether or not it will issue a temporary restraining order stopping the implementation of DAP.


Malacanang had admitted that it has released 9% of the total DAP budget to legislators, but maintained that there was no misuse of funds.


In 1977, the High Court nullified a similar budget programme introduced by former President Ferdinand Marcos. The tribunal voided a portion of Presidential Decree 1177 that gave Marcos leeway in realigning government funds because it “allows the president to override the safeguards, form and procedures prescribed by the Constitution in approving appropriations.”


“The nation has not recovered from the shock, and worse, the economic destitution brought about by the plundering of the Treasury by the deposed dictator and his cohorts. A provision which allows even the slightest possibility of a repetition of this sad experience cannot remain written in our statute books,” the Court en banc, then led by the late chief justice Claudio Teehankee Sr, said. But Joyas said DAP can be nullified even without a precedent case.


“DAP can be voided for being unconstitutional not on the basis of (any) case . . .” he said.


Former Budget secretary Benjamin Diokno described the petition being pushed by the IBP and other groups before the SC as “the first best hope” to win the battle against DAP.


Anti-DAP petitioners argued that funds used for DAP officially contained in the National Budget Circular of the Department of Budget and Management (DBM) cannot be considered as savings because “there could not be savings in the middle of a fiscal year, especially if the projects or programmes for which these funds were allocated by law, have not been completed, discontinued or abandoned.”


“The appropriations law becomes the law of the land, a product of the collective effort of the representatives of the people and the different government agencies. Not even Congress who passed it can alter the same, without undergoing the same tedious process of enacting a law. Such is the wisdom of our Constitution,” the petitioners said.


Records showed that fund releases through DAP also breached the P130bn mark as of last month.
“These funds that the DAP and the DBM 541 call as ‘savings’—the unreleased appropriations and unobligated allotments—are not actually savings following the strict formulation of the General Appropriation Laws passed by Congress through the years,” the petitioners added.


Besides Aquino, Ochoa and Abad were named as respondents in the petition which also sought a temporary restraining order on the DAP while their petition is being heard.


Malacanang previously said DAP was created in October 2011 to gather “savings” from slow-moving projects and use them for more important ones. Officials said DAP can be likened to the stimulus fund during the previous administrations which were used to spur economic growth. Election lawyer Romulo Macalintal also said DAP is unconstitutional because it is not in the General Appropriations Act, unlike the Priority Development Assistance Fund (PDAF).

x x x.

Freddie Aguilar slapped with qualified seduction raps | Inquirer Entertainment

see - Freddie Aguilar slapped with qualified seduction raps | Inquirer Entertainment


"x x x.

MANILA, Philippines—Qualified seduction charges were filed Thursday against Freddie Aguilar after his relationship with a 16-year-old drew flak from various sectors.

The complaint against the 60-year-old folk singer was filed Thursday afternoon before the Quezon City Prosecutor’s office by Fernando Perito, who said he was a member of the Integrated Bar of the Philippines and had the obligation to do what was right and prevent wrongs.

The complaint added Aguilar “deserves to be castrated to spare the children.”

According to the Criminal Law of the Philippines, qualified seduction falls under crimes against chastity.

It said in its element that the offender of qualified seduction committed a sexual relationship by means of deceit. The offended party is over 12 and under 18 years of age.

Perito asked the Senate impeachment court last year to cite members of the House of Representatives, who made up the prosecution team against then Supreme Court Chief Justice Corona, in contempt for presenting their evidence to the media. The complaint was set aside.

Claiming to be a crusader for lawyers’ ethics, he also asked the Supreme Court in 2011 to disbar Davao City Mayor Sara Duterte for punching a court sheriff, and just last year he also sought the disbarment of Justice Secretary Leila De Lima, which led to her disqualification by the Judicial and Bar Council from a list of possible successors to Corona.

This time around, the lawyer claimed to have been outraged, offended and scandalized by Aguilar’s relationship with a 16-year-old girl, with whom the folk singer had said publicly he was in love with.

Perito claimed in his two-page complaint that the girl could have simply been infatuated with Aguilar, he being a good and popular singer, and the 60-year-old music icon could have taken advantage of it.

He said Aguilar “wants to take advantage of the adulation of the child by pretending to be loving her and allegedly marrying her later, this old man deserves to be castrated to spare the children.”

The lawyer cited the folk singer’s boldness in announcing his love for the girl and claimed to have seen lewd photographs on the Internet showing Aguilar and his girlfriend.

Perito alleged that Aguilar’s admission and public demonstration of love violated morals and ethics “separating the adult from a child and the prey from the predator.”

“What this old man had done was to prey on the innocent child enough to be his granddaughter after allegedly being separated from his wife, which is no excuse,” the lawyer said, describing as “hogwash” Aguilar’s claim that he had been deceived by the girl’s height and thought she was already of age.

He added in his complaint, “The offender, an old man has an authority and moral influence over the child because of his popularity. And he must have devirginized her already every now and then.”

Perito concluded that if the girl’s parents had consented to the relationship, they should also be held criminally liable.

According to the Revised Penal Code, qualified seduction under Article 337 is: “The seduction of a virgin over twelve years and under eighteen years of age, committed by any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman seduced.”

Several Supreme Court rulings state that qualified seduction has these elements: the offended party is a virgin; she must be more than 12 and under 18 years of age; the offender has sexual intercourse with her; there is abuse of authority, of confidence or of relationship, which all must be present to constitute the crime.

Under normal practice, complaints are raffled to prosecutors to determine if the complaint merits bringing to court for trial.

RELATED STORIES

Freddie Aguilar courts controversy with 16-year-old girlfriend

‘Anak’ speaks up

x x x."

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At Last, the Supreme Court Turns to Mental Disability and the Death Penalty - Andrew Cohen - The Atlantic

see - At Last, the Supreme Court Turns to Mental Disability and the Death Penalty - Andrew Cohen - The Atlantic


"x x x.

Too late for those already dead, perhaps in time for those still living, the United States Supreme Court has moved at last to clarify the rules state officials must follow when determining whether capital defendants are "mentally retarded"*and thus precluded from execution under the Eighth Amendment. For over a decade, especially in the South, those rules have been manipulated by local officials and judges in ways that undermine the Court's 2002 landmark ruling in Atkins v. Virginia, which banned the execution of the mentally disabled—but permitted states to define for themselves that loaded term.

The justices will reassess this long-neglected area of capital law through a Florida case that illustrates marvelously the extent to which some states will go to execute condemned prisoners, even when those prisoners are manifestly retarded. The Court agreed on Monday to hear Hall v. Florida, a case brought by a condemned man, a convicted murderer, who was declared "retarded" by the Florida courts in 1992 and again in 1999, only to be declared "un-retarded" by the Florida courts in 2009. He claims this violates his constitutional rights. He's right—and the Court should say so.

Indeed, depending upon how the justices vote, Hall v. Florida could be the first step toward an important new constitutional standard for mentally disabled defendants in capital cases. The justices have an opportunity here to establish a universal benchmark that no state may avoid under the banner of federalism or the Tenth Amendment. They also have a chance to put some mettle into their existing precedent.

x x x."

Ma’am Arlene fixes cases, steals justice

see - Ma’am Arlene fixes cases, steals justice


"x x x.

“There are 3 Ma’am Arlenes.”

When Midas Marquez, the court administrator, said this, referring to a lady who supposedly funded the winning candidate’s campaign in the recent elections of the Philippine Judges Association (PJA) held at a hotel in Manila, including paying for the hotel bills, he may have meant to confuse the public. But his answer was classic: he gave away the nature of the crime.

While there is a real Ma’am Arlene—identified by sources in the courts and the immigration bureau as Arlene Angeles-Lerma—she is merely the face of a culture in the judiciary that fosters corruption. Some judges are impervious to their code of ethics and forget that they are arbiters of conflicts and, at all times, should be seen as impartial. They socialize with lobbyists, accept gifts, play golf with lawyers and litigants.

Ma’am Arlene follows a pattern. She befriends judges, hangs around with them, especially in the Manila regional trial courts, and reportedly gives some of them expensive gifts.

“She’s friendly, she’s not loud,” a Manila judge told me, saying that Ma’am Arlene joins them in their gatherings, never fails to buss the lady judges, and joins them for lunches at nearby hotels.

Why she cultivated judges is perhaps the same reason Janet Napoles cultivated senators and congressmen. They stood to benefit from a business relationship. Marquez correctly pointed out the difference between the 2 women: Napoles stole public funds while Ma’am Arlene did not.

But look at it this way. Ma’am Arlene, by allegedly fixing cases, stole justice in favor of the moneyed.

PJA elections

In the last few years, elections of the PJA were not much different except that, this year, someone squealed.

In some ways, they mirror our national elections. Vested interests slither their way through the judges’ circles, develop friendships, trade favors and influence decisions. This reaches a high point during the elections (held every 2 years) when the likes of Ma’am Arlene, who represents certain interests, bet on their friends and allies.

In late 2007, when I interviewed then Manila RTC Executive Judge Antonio Eugenio Jr., who had just won as PJA president, he told me about his 5 months of campaigning around the country among the more than 800 RTC judges. I remarked that it must have been expensive to conduct such a campaign. He said that he shouldered his expenses.

But it was in that same year that the Supreme Court issued guidelines to cover the PJA elections. In May 2007, then court administrator Christopher Lock was apparently alarmed by reports of impropriety. He wrote in the guidelines, “…there had been reports, subsequently verified, that during the previous years, judges seeking positions in their associations had engaged in blatant electioneering activities to the extent that some of these candidates travelled to different provinces, held caucuses with the association members in expensive venues, and provided them free food, drinks and entertainment all for the purpose of soliciting their support and votes.”

The guidelines prohibited, among others, giving money, providing food, entertainment, transportation, lodging to members of judges associations and soliciting or accepting contributions from other parties for an election campaign fund. Violations constitute a “serious administrative offense.”

Patronage politics

Court insiders pointed out to me that one thing was missing in the promulgated guidelines: the provision that candidates should not have any pending administrative case. While this was in the original draft, Chief Justice Reynato Puno apparently did not include it in the final guidelines.

Eugenio, at the time, was being investigated for issuing more than 3,000 search warrants in 17 months or about 200 a month, in cases involving violations of the Intellectual Property Code. There was even a day wherein he issued 100 search warrants, an incredibly huge output.

He admitted this to me in the interview but he said that those “100 warrants were issued on the basis of one consolidated application directed against one mall with the same witnesses.”

What was special about Eugenio? In 2005, he openly supported Puno’s bid to become chief justice. He and other lower-court judges wrote a petition to President Arroyo to pick Puno, the most senior justice then. But Arroyo eventually chose Artemio Panganiban.

It seems that Puno gave Eugenio a thank-you card and cleared the way for his presidency of PJA. In this case, the PJA election became part of the judiciary’s patronage politics.

Lee’s record

Fast forward to today.

I am told that the new PJA president, Judge Ralph Lee, was part of Eugenio’s bloc, which has been the dominant group in the RTC judges association. Like Eugenio, he had a blemished record.

In 2009, the Supreme Court sanctioned Lee and imposed on him a fine of P20,000 for his failure to decide cases within the prescribed period while he was a metropolitan trial court judge. The Court said that it chose the maximum fine because “his transgression touched on parties’ right to the speedy disposition of their cases and the fact that he is already a repeat offender.” Earlier, he was fined P5,000 for indirect contempt by the Court. (Read the Supreme Court decision here)

In 2012, Lee was granted judicial clemency by the Supreme Court. This allows him to seek higher posts in the judiciary.

Will he be able to keep his post as PJA president? Will the nature of PJA elections change after this? Will the culture in the judiciary be given a much-needed shaking up?

We await the findings of the Supreme Court. - Rappler.com.

x x x."

Community Involvement: 5 Ways to Build Your Client Base - Strategist

see - Community Involvement: 5 Ways to Build Your Client Base - Strategist


"x x x.

Here's how you can get involved in your community to build your client base.

1. Guest Speaking Engagements

Organizations and clubs are always looking for guest speakers. Reach out to local groups to see if they'd be interested in hearing you speak about your practice area at their next general meeting, or event.

2. SCORE

The Small Business Administration is home to SCORE (Service Corp of Retired Executives). Unlike the name suggests, you don't need to be retired to volunteer and mentor local small business owners.

3. Writing for the Local Paper

Our local paper has a column written by a "local legal expert" who answers residents' legal questions. See if your paper has such a column, and if not see if there's any interest in starting one. If it already exists, see if you can get involved too. Think of it as free advertising. Just be sure to follow ethics rules about informing people about legal representation.

4. Host Workshops

Town public libraries often host many types of workshops geared toward business owners or local concerns. For example, perhaps you have a trusts and estates practice and want to host a workshop on the importance of estate planning. Going through your local library may be a great way to start, and publicize a workshop.

5. Volunteer

Whether it's on the board of local non-profit organization, or a local city government commission, volunteering your efforts (even if non-legal) opens the door to you meeting many potential clients.

If you're trying to think of ways to get more clients, start by walking out the front door. Your community is an asset that is full of potential clients. The beauty ofgiving to your community is that it will all come back to you.

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July 2013 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG

see - July 2013 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG


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Attorney; the failure to file a brief resulting in the dismissal of an appeal constitutes inexcusable negligence. In Dalisay Capili v. Atty. Alfredo L. Bentulan, the Court held that the failure to file a brief resulting in the dismissal of an appeal constitutes inexcusable negligence.  In this case, the Court cannot accept as an excuse the alleged lapse committed by his client in failing to provide him a copy of the case records.

In the first place, securing a copy of the case records was within Atty. San Juan’s control and is a task that the lawyer undertakes.

Second, Atty. San Juan, unlike his client, knows or should have known, that filing an appellant’s brief within the reglementary period is critical in the perfection of an appeal. The preparation and the filing of the appellant’s brief are matters of procedure that fully fell within the exclusive control and responsibility of Atty. San Juan. It was incumbent upon him to execute all acts and procedures necessary and incidental to the perfection of his client’s appeal.

Third, Atty. San Juan lacked candor in dealing with his client. He omitted to inform Tomas of the progress of his appeal with the Court of Appeals. Worse, he did not disclose to Tomas the real reason for the Court of Appeal’s dismissal of the appeal. Neither did Atty. San Juan file a motion for reconsideration, or otherwise resort to available legal remedies that might have protected his client’s interest.

Atty. San Juan’s negligence undoubtedly violates the Lawyer’s Oath that requires him to “conduct [himself] as a lawyer according to the best of (his) knowledge and discretion, with all good fidelity as well to the courts as to (his) clients[.]“  He also violated Rule 18.03 and Rule 18.04, Canon 18 of the Code of Professional Responsibility. Rex Polinar Dagohoy v. Atty. Artemio V. San Juan. A.C. No. 7944, June 3, 2013.

Attorney; IBP findings and recommended penalties in administrative cases against lawyers are only recommendatory. IBP’s recommended penalty of three (3) months suspension from the practice of law is not commensurate to the gravity of the infractions committed. These infractions warrant the imposition of a stiffer sanction.  The following acts and omissions of Atty. San Juan were considered: first, the negligence in handling his client’s appeal; second, his failure to act candidly and effectively in communicating information to his client; and more importantly, third, the serious and irreparable consequence of his admitted negligence which deprived his client of legal remedies in addressing his conviction.

In Pineda v. Atty. Macapagal, the Court imposed a one (1) year suspension from the practice of law on a lawyer who, like Atty. San Juan, had been found guilty of gross negligence in handling his client’s case. With this case as the norm, Atty. San Juan should be meted a suspension of one (1) year from the practice of law for his negligence and inadequacies in handling his client’s case.

Moreover, IBP’s findings and stated penalty are merely recommendatory; only the Supreme Court has the power to discipline erring lawyers and to impose against them penalties for unethical conduct. Until finally acted upon by the Supreme Court, the IBP findings and the recommended penalty imposed cannot attain finality until adopted by the Court as its own. Thus, the IBP findings, by themselves, cannot be a proper subject of implementation or compliance. Rex Polinar Dagohoy v. Atty. Artemio V. San Juan. A.C. No. 7944, June 3, 2013.

Court personnel; dishonesty. Ismael Hadji Ali, a court stenographer I at the Shari’a Circuit Court, represented that he took and passed the Civil Service Professional Examination but evidence showed that another person took the exam for him. Per CSC Memorandum Circular No. 15, Series of 1991, the use of spurious Civil Service eligibility constitutes dishonesty, among others. Dishonesty is a malevolent act that has no place in the judiciary. Hadji Ali failed to observe the strict standards and behavior required of an employee in the judiciary. He has shown unfitness for public office. Pursuant to the Civil Service Rules, Hadji Ali was dismissed from the service with forfeiture of retirement and other benefits. Civil Service Commission v. Ismael A. Hadji Ali, et al., A.M. No. SCC-08-11-P, June 18, 2013.

Court personnel; dishonesty and grave misconduct. Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior as well as gross negligence by a public officer. To warrant dismissal from service, the misconduct must be grave, serious, important, weighty, momentous and not trifling. The misconduct must imply wrongful intention and not a mere error of judgment. The misconduct must also have a direct relation to and be connected with the performance of the public officer’s official duties amounting either to maladministration or willful, intentional neglect, or failure to discharge the duties of the office.

Dishonesty is the “disposition to lie, cheat, deceive, defraud or betray; untrustworthiness; lack of integrity; lack of honesty, probity, or integrity in principle; and lack of fairness and straightforwardness.”

In this case, respondent deceived complainant’s family who were led to believe that he is the legal representative of the Hodges Estate. Boasting of his position as a court officer, a City Sheriff at that, complainant’s family completely relied on his repeated assurance that they will not be ejected from the premises.

In Re: Complaint Filed by Paz De Vera Lazaro Against Edna Magallanes, Court Stenographer III, RTC Br. 28 and Bonifacio G. Magallanes, Process Server, RTC Br. 30, Bayombong, Nueva Vizcaya, the Court stressed that to preserve decency within the judiciary, court personnel must comply with just contractual obligations, act fairly and adhere to high ethical standards. In that case, the court held that court employees are expected to be paragons of uprightness, fairness and honesty not only in their official conduct but also in their personal dealings, including business and commercial transactions to avoid becoming the court’s albatross of infamy.

More importantly, Section 4(c) of Republic Act No. 671350 or the Code of Conduct and Ethical Standards for Public Officials and Employees mandates that public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. Rodolfo C. Sabidong v. Nicolasito S. Solas. A.M. No. P-01-1448, June 25, 2013.

Court personnel; Prohibition in acquiring property involved in litigation within the jurisdiction of their courts. Article 1491, paragraph 5 of the Civil Code prohibits court officers such as clerks of court from acquiring property involved in litigation within the jurisdiction or territory of their courts. The rationale is that public policy disallows the transactions in view of the fiduciary relationship involved, i.e., the relation of trust and confidence and the peculiar control exercised by these persons. “In so providing, the Code tends to prevent fraud, or more precisely, tends not to give occasion for fraud, which is what can and must be done.”

For the prohibition to apply, the sale or assignment of the property must take place during the pendency of the litigation involving the property. Where the property is acquired after the termination of the case, no violation of paragraph 5, Article 1491 of the Civil Code attaches.

In this case, when respondent purchased Lot 11-A on November 21, 1994, the Decision in Civil Case No. 14706 which was promulgated on May 31, 1983 had long become final. Be that as it may, it cannot be said that the property is no longer “in litigation” at that time considering that it was part of the Hodges Estate then under settlement proceedings.

A thing is said to be in litigation not only if there is some contest or litigation over it in court, but also from the moment that it becomes subject to the judicial action of the judge. A property forming part of the estate under judicial settlement continues to be subject of litigation until the probate court issues an order declaring the estate proceedings closed and terminated. The rule is that as long as the order for the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated. The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same.Rodolfo C. Sabidong v. Nicolasito S. Solas. A.M. No. P-01-1448, June 25, 2013.

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