Unless the parties stipulate, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not necessary because Section 3 of Act No. 3135 only requires the posting of the notice of sale in three public places and the publication of that notice in a newspaper of general circulation

Foreclosure; extrajudicial foreclosure; notice of extrajudicial foreclosure proceedings not necessary unless stipulated by the parties. 

In Carlos Lim, et al. v. Development Bank of the Philippines, the court held that unless the parties stipulate, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not necessary because Section 3 of Act No. 3135 only requires the posting of the notice of sale in three public places and the publication of that notice in a newspaper of general circulation. In this case, the parties stipulated in paragraph N of the real estate mortgage that all correspondence relative to the mortgage including notifications of extrajudicial actions shall be sent to mortgagor Ramirez at his given address. Respondent had no choice but to comply with this contractual provision it has entered into with Ramirez. The contract is the law between them. Hence, the court cannot agree with the bank that paragraph N of the real estate mortgage does not impose an additional obligation upon it to provide personal notice of the extrajudicial foreclosure sale to the mortgagor Ramirez. 

- Jose T. Ramirez v. The Manila Banking Corporation, G.R. No. 198800, December 11, 2013.

See -
http://lexoterica.wordpress.com/2014/01/15/december-2013-philippine-supreme-court-decisions-on-civil-law/

Damages; moral damages; when entitled.

Nothing supports the trial court’s award of moral damages. There was no testimony of any physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury suffered by Ramirez. The award of moral damages must be anchored on a clear showing that Ramirez actually experienced mental anguish, besmirched reputation, sleepless nights, wounded feelings or similar injury. Ramirez’s testimony is also wanting as to the moral damages he suffered. 

- Jose T. Ramirez v. The Manila Banking Corporation, G.R. No. 198800, December 11, 2013.

See - http://lexoterica.wordpress.com/2014/01/15/december-2013-philippine-supreme-court-decisions-on-civil-law/

5% per month null and void

Interest rate of 5% per month, which when summed up would reach 60% per annum, is null and void for being excessive, iniquitous, unconscionable and exorbitant, contrary to morals, and the law.

Contracts; contract of loan; interest stipulated; reduced for being iniquitous and unconscionable. -

Parties to a loan contract have wide latitude to stipulate on any interest rate in view of the Central Bank Circular No. 905 s. 1982 which suspended the Usury Law ceiling on interest effective January 1, 1983. It is, however, worth stressing that interest rates whenever unconscionable may still be declared illegal. There is nothing in the circular which grants lenders carte blanche authority to raise interest rates to levels which will either enslave their borrowers or lead to a hemorrhaging of their assets.In Menchavez v. Bermudez, the interest rate of 5% per month, which when summed up would reach 60% per annum, is null and void for being excessive, iniquitous, unconscionable and exorbitant, contrary to morals, and the law. 

- Florpina Benvidez v. Nestor Salvador,G.R. No. 173331, December 11, 2013.

See - http://lexoterica.wordpress.com/2014/01/15/december-2013-philippine-supreme-court-decisions-on-civil-law/

SCOTUS Is A Political Institution

See - SCOTUS Is A Political Institution





"x x x.

The Washington Post has just published an excerpt form Justice John Paul Stevens' new book which deals with issues of constitutional interpretation. The section that they published is focused on the second amendment. Stevens' position is that the court's current majority is misinterpreting the constitution by expanding the rights of gun owners. I am personally  in sympathy with Stevens' views on gun control. However, in reading his review of the changing history of the interpretation of this section of the constitution, I was struck once again by just how much the courts are political bodies subject to the changing tides of political fortunes. The notion that the judges and justices are ever really separated from the political process that put them on the bench is simply a myth.

The political structure of government in the US is a complex patchwork of local, state and national institutions. Constitutions are intended to provide a certain amount of legal bedrock that anchors the system, but in practice they are subject to judicial interpretation and have a mechanism for amendment. They are not fixed and forever unchanging.

Over the past century the political composition of SCOTUS has taken broad swings from being politically conservative to politically liberal and then back to a conservative majority with a fairly moderate minority. This pattern of change can be tied very directly to the occupants of the White House and the makeup of the Senate. The justices on the court do not run for election and are appointed for life. They leave the court by either dying or retiring. This limits the ability of any particular president to appoint new members to the court, and the requirement for senate ratification is a further constraint on appointments.

When FDR came to office in 1933 at the depth of the great depression he had a congressional majority, but he faced a SCOTUS made up of conservative justices that were the legacy of 12 years of very conservative Republicans. The new deal began to enact experimental measures in an effort to bring some relief to the nation's economic plight only to have SCOTUS declare some of the key measures unconstitutional. This confrontation set FDR off on what turned out to be probably his greatest political disaster. He was unwilling to wait for the court's composition to change over the course of time and he proposed a bill in congress that would allow him to pack the court with his appointees. It would have allowed him to make immediate new appointments based on the ages of the existing justices. The bill ultimately failed.

The Democrats maintained control of the presidency and congress for 20 years. When Eisenhower took office he faced a federal judiciary with a preponderance of liberal Democrats. His first appointment of Earl Warren as chief justice backfired and he wound up with perhaps the most famous liberal in the history of the court. He added four other justices who were generally moderates. The overall political orientation of the court didn't change form the new deal years.

Nixon was the first president since Hoover to begin putting conservatives on the court. Reagan added 3 new justices, but for all of his conservative rhetoric only Scalia turned out to be a hard line conservative. Bush I picked up another hardliner with Clarence Thomas. Clinton only got two appointments. Bush II managed to come up with two strong conservatives. Obama's two appointments could be rated one fairly liberal and one moderate.

The point of this historical review is to show how the political composition of this supposedly detached institution is subject to change. There was one brief episode when all pretense of impartiality was stripped away, Bush v Gore.

For people like me who were born during the new deal period or slightly after, there was a basic sense of the federal judiciary as an institution that was oriented to protecting the rights of the people. I am sure that legal scholars tracing detailed history of trends would find much more complex patterns since most of the cases in the federal courts are dealing with technical legal problems rather than broad constitutional ideological positions. However, it is those headline grabbing cases that get public attention and there is a prevailing impression that there has been a steady shift to the right.

x x x.

RH Law decision; dispositive part. - 204819.pdf

See - 204819.pdf



"x x x.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:

 1] Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in an emergency or life-threatening case, as defined under Republic Act No.8344, to another health facility which is conveniently accessible; and b)  allow minor-parents or minors who have suffered a miscarriage access to modem methods of family planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as they punish any healthcare service provider who fails and or refuses to disseminate information regarding programs and services on reproductive health regardless of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married individual, not in an emergency or lifethreatening case, as defined under Republic Act No. 8344, to undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of parental consent only to elective surgical procedures.

5] Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs;

6] Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as they punish any public officer who refuses to support reproductive health programs or shall do any act that hinders the full implementation of a reproductive health program, regardless of his or her religious beliefs;

7] Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona reproductive health service in so far as they affect the conscientious objector in securing PhilHealth accreditation;

and

8] Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013, is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.

SO ORDERED.



x x x."

Facial challenge doctrine.

See - 204819.pdf





"x x x.



Facial Challenge



The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating measure. 105



The Court is not persuaded. In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First Amendment. 106 These include religious freedom,

freedom of the press, and the right of the people to peaceably assemble, and to petition the Government for a redress of grievances. 107_After all, the fundamental right to religious freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some modifications. While this Court has withheld the application of facial challenges to strictly penal statues, 108 it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights. 109 The underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave 

abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution. 

x x x."

Power of judicial review; how to attack unconstitutional laws.

See - 204819.pdf;

Also  -

http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/april2014/204819.pdf


"x x x.

In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier point. The Court may pass upon the constitutionality of acts of the legislative and the executive branches, since its duty is not to review their collective wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as mandated of them by the Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. 90 This is in line with Article VIII, Section 1 of the Constitution which expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. 

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. [Emphases supplied] 

As far back as Tanada v. Angara, 91 the Court has unequivocally declared that certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course of law. This ruling was later on applied in Macalintal v. COMELEC, 92 Aldaba v. COMELEC, 93 Magallona v. Ermita,94 and countless others. In Tanada, the Court wrote: 

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld." Once a "controversy as to the application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide. [Emphasis supplied] 

x x x."

Intemperate judge

"x x x.

The use of intemperate language is included in the proscription provided by Section 1, Canon 4 of the New Code of Judicial Conduct, thus: “Judges shall avoid impropriety and the appearance of impropriety in all the activities of a judge.” It bears stressing that as a dispenser of justice, respondent should exercise judicial temperament at all times, avoiding vulgar and insulting language. He must maintain composure and equanimity.

 This Court has long held that court officials and employees are placed with a heavy burden and responsibility of keeping the faith of the public. Any impression of impropriety, misdeed or negligence in the performance of
official functions must be avoided. This Court shall not countenance any
conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish the faith of the people in the Judiciary.

x x x."

See -
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/march2014/RTJ-14-2376.pdf

The Case for Setting a Low Hourly Rate - Strategist

See  -  The Case for Setting a Low Hourly Rate - Strategist



"x x x.

The Case for a Low Rate

You know what's great about fresh-out-of-schoolers? They have no preconceived notions about how law must be practiced and law firms must be run. They're more open to alternative fee arrangements, adopting cutting edge and cost-saving technology, and most don't feel like they deserve $500 an hour.

The thing is, if you're new to practice, you don't have a 30-year trial record to trumpet to potential clients. They're going to look you up, realize that you've only been licensed for a year or two, and if they're still willing to go to you, they're going to expect a lower rate. Why? Because if they could afford the market rate, they'd go with the experienced attorney.

Clients know that they get what they pay for, at least in terms of experience. And the low-fee market is the easiest to tap into. Does that mean a rate of $100 an hour, or $50 an hour, is sustainable? Probably not, though it'll depend on your overhead.

As for irritating other attorneys, we really doubt anyone is going to toss a drink in your face at the next mixer because your hourly rate is too low -- you're probably signing the clients that can't afford the veteran attorney's rates anyway.

Sustainability

Of course, it's called "the race to the bottom" for a reason -- the lower the hourly rate, the less likely you are to succeed financially. Eventually, if you keep cutting your rate, you'll end up in the red, and you'll be losing money on cases.

You need to factor in the obvious overhead (office rent and supplies, legal research services, staff, utilities) and the not-obvious overhead (deadbeat clients) when setting your rates. One hundred dollars an hour may be sustainable if you maintain a Spartan office (or no office at all) and use the law library's legal research services, but what happens when a client goes AWOL or simply refuses to pay? Perhaps you can compensate for a low rate by requiring high retainers?

It's not wise to charge an unsustainably low rate, but it's also not realistic to expect clients to pay market rate when you're new to practice. There's a sweet spot in there somewhere. As is the case with all businesses, the trick is finding it.

Related Resources:

• Small Firm Start-Up: What Tech Do You Need? (FindLaw's Strategist)
• Small Firm Startup: Cheap Malpractice Insurance is a Must (FindLaw's Strategist)
• Small Firm Startup: Straight Out of School? 4 Tips (FindLaw's Strategist)
• x x x."

Visit our FB fan page.

Click -  https://www.facebook.com/laspinascitylawyers

Laserna Cueva-Mercader LAW Offices

OVERVIEW OF THE FEDERAL JUDICIAL SYSTEM - www.uscourts.gov/uscourts/FederalCourts/Interpreter/federal-court-interpreter-orientation-manual.pdf

Read  -  www.uscourts.gov/uscourts/FederalCourts/Interpreter/federal-court-interpreter-orientation-manual.pdf





"x x x.



CHAPTER 1: OVERVIEW OF THE FEDERAL JUDICIAL SYSTEM



I. Introduction



Although federal court interpreting occurs almost exclusively at the district court level, the following information regarding the court system will help interpreters develop an overall view of the court structure. The limited information presented in this chapter and in this manual should be considered only a primer towards a more comprehensive knowledge of the subject matter.



The following material is reproduced verbatim from the Federal Judicial Center brochure, Welcome to the Federal Courts.





II. Federal and State Courts



There are two kinds of courts in the United States.



A. Federal



Federal courts are established by the U.S. government. There are some 1,500 federal judges and about one million cases are brought each year in federal courts. Nearly 80% of these cases are bankruptcy filings and approximately 10% are minor criminal cases.



B. State



State courts are established by a state, or by a county or city within the state. There are almost 30,000 state court judges, and the number of state court cases exceeds 27 million each year, not including traffic and parking violations. The cases individual citizens are most likely to be involved in—such as robberies, traffic violations, broken contracts, and family disputes—usually come before state courts.



III. Types of Federal Courts



Article III of the Constitution calls for a Supreme Court and whatever other federal courts  Congress considers necessary. There are three types of federal courts.



A. District Courts



Congress has divided the country into 94 federal judicial districts, each with its own U.S. District Court. The district courts are the federal courts where cases are tried, witnesses testify and juries serve. Each district court has a separate bankruptcy court.



B. Courts of Appeals



Congress has grouped the districts into 12 regions, called circuits, each with a court of appeals. There is also a federal circuit, which covers the entire country. If a person loses a trial in a district court, that person can appeal the case to the court of appeals, which will review the case to see if the district court judge applied the law correctly. The courts of appeals also review cases decided by some federal agencies, such as the National Labor Relations Board.



C. The Supreme Court



The U.S. Supreme Court in Washington, D.C., is the most famous federal court.

Cases from the court of appeals in each circuit and from the state supreme courts can be appealed to the Supreme Court, but the Supreme Court does not have to hear the cases it is asked to review and, in fact, agrees to hear only a very small percentage of them.



IV. Federal Court Cases



A. Jurisdiction



Jurisdiction refers to the kinds of cases a court is authorized to hear. Federal courts don’t have the same broad jurisdiction that state courts have. Federal court jurisdiction is limited to the kinds of cases listed in the Constitution (Article III, Section 2). Usually, federal courts only hear cases involving the Constitution, laws passed by Congress, cases in which the United States is a party, cases involving foreign diplomats, and some special kinds of cases, such as incidents at sea and bankruptcy cases. Federal courts also hear cases that are based on

state laws but that involve parties from different states.



B. Civil Cases



Lawyers use the term “party” to describe a participant in a civil case. A party can be a person or a corporation, but, in either situation, a civil case involves a claim by one party (the plaintiff) that another party (the defendant) failed to carry out a legal duty, such as the duty not to harm others through carelessness or the duty to honor the terms of a contract. If a court finds that a defendant failed to carry out a legal duty, it may order the defendant to pay compensation to the plaintiff to make up for the harm. Most federal court cases are civil cases, such as equal mployment opportunity claims, claims for benefits under federal programs, and suits against companies that may have violated federal antitrust laws. Appeals to the courts of appeals for review of federal agency decisions are also federal civil cases.



C. Criminal Cases



In a criminal case, a party (the defendant) is accused of committing a crime—an action considered to be harmful to society as a whole, not just to a specific person. Most crimes concern matters that the Constitution leaves to the states, and thus, compared with the number of state criminal laws and cases, there are few federal criminal laws and cases.



Federal criminal laws, for example, deal with robbing banks whose deposits are insured by a federal agency, importing drugs illegally into the country, or using the U.S. mails to swindle consumers.



V. Bringing a Case in Federal Court



For a court to decide a controversy, a person must bring it to court. Also, the controversy must involve a legal question— courts don’t resolve every type of disagreement.



A. Civil Cases



A federal civil case begins when someone, or someone’s lawyer, files a paper with the clerk of the court that states a claim against another party, charging a failure to fulfill a legal duty. In lawyers’ language, the plaintiff files a complaint against the defendant. The defendant may then file an answer to the complaint.





B. Criminal Cases



A criminal case begins when the U.S. attorney (a lawyer for the executive branch of government) or an assistant tells a federal grand jury about evidence that indicates a specific person or organization committed a crime. If the grand jury agrees that there is enough evidence to show that the accused party probably committed the crime, it issues a formal accusation, called an indictment. The accused party— the defendant—is then brought before a judge for arraignment and is asked to plead “guilty” or “not guilty.” If the defendant pleads guilty, a time is set for sentencing. If the defendant pleads not guilty, a time is set for trial.



Grand jury indictments are used mainly for felonies, the more serious crimes. For

misdemeanors, the less serious crimes, and for some felonies, the U.S. attorney issues an information, which takes the place of an indictment.

x x x."

Federal Court Interpreter Orientation Manual and Glossary

Download  -  www.uscourts.gov/uscourts/FederalCourts/Interpreter/federal-court-interpreter-orientation-manual.pdf





"x x x.

A newly published Federal Court Interpreter Orientation Manual and Glossary (pdf) provides an overview of the federal court interpreting program. A useful tool for new and experienced court interpreters, it provides an introduction to the federal court system, interpreting best practices, and reference materials. It also demonstrates the importance of court interpreters in the administration of justice and serves as a court interpreting reference for Clerk’s Office staff.

In fiscal year 2013, district courts used interpreters in 330,607 court events, compared to 325,257 events reported in FY 2012. Overall, 117 different languages were used in court events during 2013. Spanish remains the most-used language for interpreters in the courts, accounting for 96.7 percent of all reported events last year.

Other frequently used languages, in order by number of events, were: Mandarin (1,390); Russian (1,128); Korean (807); Cantonese (586); Vietnamese (566); Arabic (554); Portuguese (427); Haitian Creole (405); Romanian (345); Foochow (314).

x x x."

The Fifth Amendment’s Grand Jury: A Proud & Lost Protection of Liberty | David J. Shestokas

See  -  The Fifth Amendment’s Grand Jury: A Proud & Lost Protection of Liberty | David J. Shestokas





"x x x.

The Fifth Amendment of the Bill of Rights mandates government procedures to protect the natural, inalienable rights of life, liberty and the pursuit of happiness recognized in the Declaration of Independence. The amendment contains five protections for these natural rights. The Fifth Amendment’s first protection requires the federal government to use a grand jury to begin prosecuting someone for a crime.  A grand jury is made up of citizens chosen to decide whether to return an indictment formally charging a person with committing a crime.

The Grand Jury Clause of the Fifth Amendment

 The Grand Jury Clause of the Fifth Amendment reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;

The History of Grand Juries

 The roots of the Grand Jury[1] are in the Magna Carta.  King John’s agreement with the Barons in 1215 placed a group of Barons between the King and legal actions including criminal prosecutions.  This procedure was to protect liberties from unfettered interference by the crown.  What was to become the modern Grand Jury began in 1368 when King Edward III appointed 24 men in each county to investigate and lodge accusations of crime.  However, 300 years[2] would pass before grand juries would become the citizen’s protection written into the Constitution from malicious, political or unwarranted prosecutions.

American colonists inherited grand juries from English law and as tensions grew between the colonies and England colonial grand juries regularly refused to approve the king’s prosecutions.  In the colonies grand juries were in the forefront of the revolution by resisting the crown and exercising the rights of self-government.  In 1735 a colonial grand jury refused to issue an indictment[3] for seditious libel and set the stage for the case of John Peter Zenger, which ultimately freed the press in America.

The Fifth Amendment Grand Jury Protection Mirrors Colonial Experience

The Founding generation came to cherish the value of placing citizens between government prosecution and the accused.  All men have a natural right to liberty and government interference with that right should not be entered upon either lightly or easily.  The Fifth Amendment institutionalized the colonial experience of resisting the government through the grand jury and was recognized by the Supreme Court:

“Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”  Wood v. Georgia (1962)

The Grand Jury in Modern Times

From ratification of the Bill of Rights 1791 until the 1946 adoption of the Federal Rules of Criminal Procedure (FRCP), specifically Rule 6[4] grand juries were not governed by statute.  The Grand Jury was an institution that existed before the Constitution and recognized by the Fifth Amendment and not considered a part of any branch of government, but rather a panel of citizens.

While grand juries started as investigative and accusatory bodies with great independent authority, that authority has been diminished both in practice and by statute.  Federal[5] grand juries are typically composed of 23 citizens and convene for periods from one month to a year.  Legally as a pre-constitutional institution recognized by the Constitution, grand juries retain the independent authority that they had at common law.[6]  In practice, they have become a prosecutor’s panel dependent upon the prosecutor for their agenda, though technically they are not part of the executive branch.

How a Grand Jury Works

Grand jury proceedings are secret. The prosecutor presents evidence to the panel and no judge is present. The targets of grand jury investigations have no rights to be present or informed about the proceedings. A vote of twelve grand jurors is required to return an indictment.

Since the grand jury is an investigative body and not a court, many court rules do not apply. Jurors may consider evidence that cannot be used in court such as hearsay or evidence that may have been gathered in violation of the Fourth, Fifth or Sixth amendments. There is no right for a witness to have an attorney present.[7]  They have the power to issue subpoenas for both physical evidence and testimony.

Given the evolution over the years, grand juries, whose members once proudly stood up to the King of England, rather than maintaining a buffer between the government and the people, have become an extension of the prosecution.  The change in the nature of grand juries was best expressed by the now famous observation of former Judge Sol Wachter who observed that prosecutors now exercise so much control that a grand jury could be persuaded to “indict a ham sandwich”.

The Demise of a Procedural Protection for Life and Liberty

What once stood as a bulwark for freedom and was constitutionalized to be so is now best described:

“Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department. In practice, the grand jury’s every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.”   Roger Roots[8]

---

[1]Grand Juries are typically made up of 16 to 23 members.  Trial juries consist of 6 to 12.  The larger juries are thus considered “grand”.

[2]The Cases of Stephen Colledge and the Earl of Shaftesbury in 1681

[3]An “indictment” is the legal term for the formal accusation of a crime by a grand jury.  The word is typically employed when a grand jury decides enough evidence exists to bring someone to trial.

[4]   The FRCP made independently-acting grand juries illegal for all practical purposes, creating a creature that would be unrecognized by the Founders.

[5]    The Fifth Amendment’s Grand Jury requirement applies only to federal criminal prosecutions.  The Supreme Court has held that this clause of the Bill of Rights does not apply to the states. Hurtado v. California, 110 U.S. 516 (1884) Though Hurtado was decided prior to the trend of the Supreme Court to apply the Bill of Rights to the states through the 14^th Amendment.

[6]    Common law is the English law derived from custom and judicial precedent rather than statutes (laws passed by the legislature) that was adopted by America at its founding.

[7]    Though witnesses are allowed to leave a grand jury proceeding at any time to consult with an attorney.

[8]     If It’s Not a Runaway, It’s Not a Real Grand Jury

x x x."





- See more at: http://www.shestokas.com/constitution-educational-series/the-fifth-amendments-grand-jury-a-proud-lost-protection-of-liberty/?utm_campaign=Constitution+via+1780&utm_source=twitterfeed&utm_medium=twitter#sthash.liHgRYw9.dpuf

Should You Take the Stand in Your Own Defense? - FindLaw Blotter

Read  -  Should You Take the Stand in Your Own Defense? - FindLaw Blotter





"x x x.

Support for Taking the Stand

As Ghaith might have felt as he took the stand last Wednesday, there is a certain sense of respect or earnestness that comes with directly voicing your own defense. In fact, one defense attorney told the Portland Press Herald that juries often want to hear from defendants, and testifying "can go a long ways toward convincing a jury of their innocence."

The Sixth Amendment of the U.S. Constitution guarantees every criminal defendantthe right to take the stand and the right to refuse to testify. Many defendants exercise their right to tell jurors what happened in their own words, offering emotional and factual details that could otherwise be lost.

Reasons Not to Take the Stand

Because it is a constitutional right, attorneys often cannot prevent their clients from testifying, even if it is a terrible idea. In some cases, even if a defense attorney is certain his client is very likely going to lie on the stand, the attorney may be ethically bound to allow the defendant to testify.

Keep in mind, though, that in many criminal cases, it is neither advisable nor necessary for a defendant to take the stand because the prosecution has the burden of proof. Criminal defendants are innocent until proven guilty and are not even required to present a speck of evidence in their defense -- much less to testify.

When defendants do take the stand, it is a potential invitation for prosecutors to rip them to pieces during cross-examination. Even the most composed persons can become angry, blustering, guilty-looking buffoons when grilled by a skilled prosecutor.

An equally skilled criminal defense attorney can advise you whether you should take the stand in your own criminal case -- advice that shouldn't be ignored.

Related Resources:

• Al-Qaeda spokesman Abu Ghaith takes stand in own trial (BBC News)
• 5 Reasons Defendants Choose Not to Testify (FindLaw's Blotter)
• Fool Represents Self, Reported Guns Stolen with Fake ID (FindLaw's U.S. First Circuit Blog)
• Should You Represent Yourself in Court? (FindLaw) x x x."

The Fifth Amendment Guarantee Against Double Jeopardy | David J. Shestokas

See   -  The Fifth Amendment Guarantee Against Double Jeopardy | David J. Shestokas





"x x x.

The US Constitution‘s Fifth Amendment requires government procedures to protect the natural, inalienable rights of life, liberty and the pursuit of happiness recognized in the Declaration of Independence. Among these protections is a limit on multiple prosecutions based upon the same alleged conduct.  This limitation is commonly referred to as a protection from “double jeopardy”.

The Double Jeopardy Clause

The Fifth Amendment’s Double Jeopardy Clause reads:

“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;…”

Goals and Three Separate Elements in Double Jeopardy Protection

Among the goals of the Double Jeopardy Clause are to protect an individual from government harassment by multiple prosecutions of the same alleged act, to guarantee the finality of an acquittal, and to prohibit the state from putting the defendant through the emotional, psychological, physical, and financial troubles associated with multiple trials based upon the same allegation. The Double Jeopardy Clause achieves these ends through three distinct guarantees:

• 
  
• * a defendant will not face a second prosecution after an acquittal
• * a defendant will not face a second prosecution after a conviction
• * a defendant will not receive multiple punishments for the same offense

x x x."





- See more at: http://www.shestokas.com/constitution-educational-series/the-fifth-amendment-guarantee-against-double-jeopardy/?utm_campaign=Constitution+via+1780&utm_source=twitterfeed&utm_medium=twitter#sthash.O5IziNU5.dpuf

Senate president Drilon vows to pass Bangsamoro basic law before 2015 - InterAksyon.com - Linkis.com

See  -  Senate president Drilon vows to pass Bangsamoro basic law before 2015 - InterAksyon.com - Linkis.com





"x x x.

MANILA, Philippines – Senate president Franklin Drilon on Sunday vowed to pass the Bangsamoro Basic Law before the end of 2014 so that it could be submitted to the people for ratification through a plebiscite next year paving the way for the creation of a Bangsamoro political entity before the presidential polls in May 2016. 

“Sisikapin namin na tapusin bago matapos ang taon dahil this is subject for ratification next year and to establish the transition commission bago magkaroon ng halalan sa May 2016, that is when the Bangsamoro political entity will be in place,” Drilon said in an interview over radio dzBB. 

Drilon said the Senate Committees on Local Governments, chaired by Senator Ferdinand “Bongbong” Marcos Jr., would conduct public hearing on the draft basic law to be submitted by the Bangsamoro Transition Commission to the Office of the President, which it would then submit to Congress as a priority administration measure. 

“Unang-una, ang pagkakaalam ko, ang Transition committee ng Bangsamoro ay magsusumite ng draft sa Office of the President for review, then it will be submitted to Congress. So in my estimate, on the first week of May the draft bill will be in Congress and it will be referred to the committee on local government,” Drilon said.

The Senate president expects to see the copy of the draft before the end of April this year. “Siguro bago matapos ang buwan ng Abril, that is the time when we will see how it will look like,” Drilon said.

Also, Drilon said the Senate panel would immediately conduct public hearings once the draft is referred by the plenary, consulting all stakeholders and making sure that the proposed legislation would be within the parameters of the Constitution.

“Our guidelines here in any basic law must be consistent with the Constitution. Hindi po puwede na nangangailangan ng pagbabago ng Saligang Batas dahil iyan ay maliwanag na parameters ni PNoy (President Benigno Aquino III) na... 

any basic law must be within the parameters of the Constitution,” Drilon said.

The Senate president urged all stakeholders to support the proposed measure on the creation of the Bangsamoro following 17 long years of peace negotiations between the Philippine government and the Moro Islamic Liberation Front, the biggest Muslim rebel group in the country. 

“(S)ana ay pagbigyan ng ating kasamahan, ito ay isang kasunduan that will never come again. It is extremely difficult to get this agreement. Ang aking pakisusap sa iba’t ibang sektor, pagbigyan po natin ng pagkakataon ang kapayapaan, let’s give peace a chance,” Drilon said.

x x x."

Statement of the Foreign Affairs Secretary: PH files memorial under UNCLOS against China | Official Gazette of the Republic of the Philippines

Read - Statement of the Foreign Affairs Secretary: PH files memorial under UNCLOS against China | Official Gazette of the Republic of the Philippines





"x x x.

Statement of Foreign Affairs Secretary Albert del Rosario

[Delivered on March 30, 2014]

Today, the Philippines submitted its Memorial to the Arbitral Tribunal that is hearing the case it brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea in January 2013.

The Philippines’ Memorial was submitted in conformity with the Rules of Procedure adopted by the five-member Arbitral Tribunal last August, which established March 30,  2014, as the due date for its submission.

The Memorial presents the Philippines’ case on the jurisdiction of the Arbitral Tribunal and the merits of its claims. It consists of ten volumes. Volume I, which is 270 pages in length, contains the Philippines’ analysis of the applicable law and the relevant evidence, and demonstrates that the Arbitral Tribunal has jurisdiction over all of the claims made by the Philippines in its Statement of Claims, and that every claim is meritorious. It sets out the specific relief sought by the Philippines in regard to each of its claims, and shows why it is entitled to such relief.

Volumes II through X contain the documentary evidence and maps that support the Philippines’ claims, all of which are cited in Volume I. Volumes II through X consist of more than 3,700 pages, including more than 40 maps, for a total submission of nearly 4,000 pages.

The Memorial is the result of an enormous, collaborative effort by the extremely capable and dedicated legal team that has been serving the Philippines in this important case, headed by Solicitor General Francis Jardeleza and a team of lawyers from various agencies, including the OSG, DFA, DOJ, and the Office of the President.

I also wish to thank other government agencies for their invaluable contribution in the generation of documents including:

• The Department of Justice (DOJ);
• The Department of National Defense (DND), particularly the Armed Forces of the Philippines (AFP), Philippine Navy, and Philippine Air Force (PAF) ;
• The Department of Transportation and Communications, particularly the Philippine Coast Guard (PCG);
• The Department of Environment and Natural Resources, specifically the National Mapping and Resource Information Authority (NAMRIA);
• The Department of Energy (DOE);
• The Bureau of Fisheries and Aquatic Resources (BFAR);
• The Foreign Service Institute (FSI);
• And other agencies such as National Museum, National Historical Commission, National Archives, DILG’s Philippine National Police,  Municipality of Kalayaan,  and the UP Marine Science Institute.

We are also most grateful to our international legal advisers led by Paul Reichler and his team of international lawyers, including Mr. Lawrence Martin, Professor Bernard Oxman, Professor Philippe Sands, and Professor Alan Boyle for their invaluable guidance and assistance.

Ordinarily, the next step in an arbitration of this nature would be the filing of a Counter-Memorial by the other Party. However, it is currently unknown whether China will appear in the case, or whether it will continue its present policy of abstaining from the proceedings. Under the Rules of Procedure, the Arbitral Tribunal will decide on next steps and advise the Parties.

The Philippines will follow the guidance of the Arbitral Tribunal in regard to the publication of the Memorial. In the meantime, out of respect for the Tribunal and the arbitral process, it is obliged to preserve confidentiality.

With firm conviction, the ultimate purpose of the Memorial is our national interest.

It is about defending what is legitimately ours.

It is about securing our children’s future.

It is about guaranteeing freedom of navigation for all nations.

It is about helping to preserve regional peace, security, and stability.

And finally, it is about seeking not just any kind of resolution but a just and durable solution grounded on International Law.

Thank you very much indeed for your kind attention.

x x x."

Visit  -  dfa.gov.ph