Amnesty: Torture is alive and flourishing - Europe - Al Jazeera English

See - Amnesty: Torture is alive and flourishing - Europe - Al Jazeera English





"x x x.

The use of torture is widespread 30 years after the United Nations adopted a convention outlawing the practice, Amnesty International has said.

At least 44 percent of more than 21,000 people from 21 countries surveyed by the London-based rights group for its new report released on Monday, said that they would not feel safe from torture if arrested in their home country.

The report titled Torture in 2014 - 30 Years of Broken Promises read: "Although governments have prohibited this dehumanising practice in law and have recognised global disgust at its existence, many of them are carrying out torture or facilitating it in practice."

"Three decades from the convention and more than 65 years after the Universal Declaration of Human Rights torture is not just alive and well. It is flourishing," according to the report.

Amnesty said 155 countries have ratified the 1984 UN Convention Against Torture but many governments were still "betraying their responsibility" with at least 79 countries continuing to engage in the outlawed practice in 2014.

"It's almost become normalised, it's become routine," Amnesty Secretary General Salil Shetty told reporters at the launch of the "Stop Torture" campaign in London. The campaign focuses on Mexico, the Philippines, Morocco and Western Sahara, Nigeria and Uzbekistan.

Shetty also spoke of "the cruelty of inmates in the United States being held in solitary confinement with no light", of stoning and flogging in the Middle East and of the "stubborn failure" of European nations to investigate allegations of complicity in torture.

"Since the so-called war against terrorism, the use of torture, particularly in the United States and their sphere of influence... has got so much more normalised as part of national security expectations," he said.

'Fact of life'

The survey showed that the concern about torture is highest in Brazil and Mexico and lowest in Australia and Britain.

Support for torture ranged widely across nations, from 74 percent in China and India, to just 12 percent in Greece and 15 percent in Argentina, the Amnesty survey conducted by GlobeScan found.

The report described police brutality in Asia, where torture is a "fact of life", and pointed out that more than 30 countries in Africa have yet to make such abuse punishable by law.

Amnesty said it had received reports of torture being used in more 140 countries and the report gave examples from countries ranging from Nigeria to Mexico and Ukraine.

The NGO called on governments to prevent torture by providing medical and legal access for prisoners and better inspection of detention centres. It also wants an end to the impunity that exists in many places, urging independent investigations of allegations of torture.

The group notes how the UN Convention made torturers "international outlaws" and prompted governments worldwide to denounce the practice. But it warns that in reality many are endorsing or at least failing to tackle the issue head-on.

"Governments have broken their promises, and because of these broken promises millions of people have suffered terribly," said Shetty.

x x x."

Opinion: Supreme Court puts its legitimacy at risk - CNN.com

See -  Opinion: Supreme Court puts its legitimacy at risk - CNN.com





"x x x.

There are (at least) two fundamental changes that we need to make to the Supreme Court of the United States. The first is easy and should be non-controversial. The American people have a right to see on their televisions, tablets and smartphones the oral arguments and decision announcements of the Supreme Court.

More than half of state supreme courts, and the Supreme Courts of Canada and the United Kingdom, televise their proceedings with great success, and there are simply no persuasive arguments that the most powerful court in the world shouldn't do the same. The American people feel that the justices are hiding from them, and that cannot do anything but damage the confidence we have in the justices.

The second change is much harder but even more important. Here's a simple rule that I think applies to all democracies: No governmental official who wields great power should hold their office for life. Period.

The original idea was that the justices would be appointed at a relatively old age and serve for a few years. That idea is not just quaint but antiquated. Justices John Paul Stevens and William Brennan both served for more than 30 years, and Justice Elena Kagan, who was 50 when appointed, may well serve for 40 more years.

No human being can be expected to perform their job well when they know they have such great power and can never be fired. Additionally, numerous justices such as William O. Douglas and Thurgood Marshall served past the time of competence.

Moreover, it is just crazy that presidents who serve the same number of years appoint fewer or greater justices based on either the randomness of illness and death or even politically timed judicial retirements. For example, President George W. Bush drastically changed the balance on the court by appointing Justice Samuel Alito, a staunch conservative, to replace the more moderate Sandra Day O'Connor, while President Carter didn't have the opportunity to nominate even a single justice during his four years as president.

We need a constitutional amendment giving the justices fixed terms and a salary for life. This type of system provides much-needed judicial independence without the downsides of life tenure.

As far as hoping the justices will decide cases under the law without regard to their personal value preferences, no poll can provide a solution to that problem which will be with us for as long as the justices exercise judicial review. But at least we can make them use that power more transparently for all the world to see and limit the time that each individual justice wields such extraordinary authority.

x x x."

Supreme Court Upholds Prayer at Town Meetings - ABC News

See - Supreme Court Upholds Prayer at Town Meetings - ABC News





"x x x.

The Supreme Court ruled in favor today of a town in New York that begins its public board meetings with a prayer.

In a 5-4 decision, Justice Anthony Kennedy wrote the main opinion saying, “Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government, to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgement of their belief in a higher power, always with due respect for those who adhere to other beliefs.”

The decision was a loss for two women, Linda Stephens and Susan Galloway, an atheist and a Jew, who filed suit against Greece, N.Y., arguing that they felt coerced to participate in prayers — which are predominately Christian — and delivered by volunteers chosen by town officials. The women won their case at a lower court when a federal appeals court ruled in favor of the women, saying that the town’s practice violated the Establishment Clause of the Constitution.

But today, Kennedy rejected the notion that the prayer has to be nonsectarian. “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech,” he said.

But Kennedy did lay out some constraints. He wrote, “if the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.”

Kennedy said that “Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”

He said in the Town of Greece, “in no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished.”

Richard W. Garnett, a professor of law at Notre Dame Law School, said that the Supreme Court in today’s decision “re-affirmed the longstanding rule that the Constitution permits legislative prayer and does not require officials to monitor the amount of ‘religious’ or ‘sectarian’ content they contain.”

Thirty years ago, the court upheld legislative prayer in a case out of Nebraska. The court said the prayer was deeply rooted in the nation’s history. In that case, Marsh v. Chambers, the court said prayers are constitutionally permissible as long as they don’t proselytize or denigrate any faith.

After today’s decision, the Rev. Barry W. Lynn, executive director of Americans United, which sponsored the lawsuit against Greece, said in a statement that “The Supreme Court just relegated millions of Americans — both believers and nonbelievers — to second-class citizenship.”

“Government should not be in the business of forcing faith on anyone, and now all who attend meetings of their local boards could be subjected to the religion of the majority,” he added.

But lawyers for the Town of Greece praised the decision.

“Opening public meetings with prayer is a cherished freedom that the authors of the Constitution themselves practiced,” said David Cortman of the Alliance Defending Freedom. “Speech censors should have no power to silence volunteers who pray for their communities just as the Founders did.”

Justice Elena Kagan wrote the main dissent that was joined by Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Kagan noted that she agrees with the court’s 1983 decision in Marsh v. Chambers but that this case was different.

“The Town of Greece should lose this case,” she said, noting that the practice in Greece is different because the town’s meetings involve participation by ordinary citizens, and that Greece’s town board, “did nothing to recognize religious diversity.”

“In arranging for clergy members to open each meeting, the Town never sought,” she said, “to involve, accommodate, or in any way reach out to adherents of non-Christian religions.”

If the town board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, “then no one would have valid grounds for complaint,” Kagan said.

“In this country, when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans (or here, as Grecians). That is what it means to be an equal citizen irrespective of religion,” Kagan added.

Daniel Mach, director of the ACLU program on freedom of religion, said he was disappointed with the decision but does not believe it will lead to wholesale changes in the First Amendment.

“I don’t doubt that proponents of government-sponsored religion will try to use the case at every turn. But, in its analysis, the decision seems limited to the context of legislative prayer that has a unique historical pedigree,” Mach said.

x x x."

Simple Ingredients for a Good Legal Blog Post

See - Simple Ingredients for a Good Legal Blog Post





"x x x.

But not all blog posts are created equal. A bad post can drive your potential clients away. Good posts attract them. Here are the key ingredients to getting there:

1. Your Practice Area(s). Focus on your expertise, not on other aspects of the law that don’t relate to your specialty. Blogging is inexpensive marketing, but you don’t want to waste your time writing about subjects that don’t matter to your potential clients.
2. A News Hook. Put your reporter hat on. You shouldn’t write about, say, your take on oil spill law if a spill hasn’t happened recently, or at least garnered enough attention to be common knowledge among the general public. Picking a topic that is in local or national discussions will give your post more relevance.
3. Your Point of View. Don’t simply regurgitate facts. Flex your legal muscle and give your opinions. After all, visitors are looking to see how you are different from the competition. Just make sure the opinions are reasonably argued. Simply ranting could alienate people.
4. Brevity. No need to take up too much of your time writing a long post. Many readers will leave your website if the post looks long — they want information fast. A good rule of thumb on length: no more than 500 words.
5. A Dash of Informality. You’re not writing a legal brief or even the practice area pages of your website. A blog is meant to speak conversationally to its readers. Treat each post as a communication with a client where you use helpful analogies and even a little humor.
6. Simple Terms. Whom are you trying to reach? Most likely, not other attorneys. So avoid jargon and legalese. Don’t dumb it down, but be down to earth.
7. A List. People are attracted to lists. A list makes the information you present more digestible for readers and can lead to an enticing headline. It also makes writing your post a little easier.

- See more at: http://www.lawyermarketing.com/articles/simple-ingredients-for-a-good-legal-blog-post/#sthash.PvxavEdu.dpuf

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Internet Lawyer Search Survey FindLaw | Thomson Reuters

See - Internet Lawyer Search Survey FindLaw | Thomson Reuters





"x x x.

EAGAN, Minn. – Consumers are mostly likely to turn to the Internet to find and research a lawyer before hiring them, compared with other methods, according to a new survey by FindLaw.com, the most popular legal information website.

Thirty-eight percent of people surveyed said they would use the Internet to help them find a lawyer. Twenty-nine percent said they would ask a friend or relative. Smaller percentages said they would contact the local bar association or use the Yellow Pages.  

Fifteen percent of people surveyed said that they already have a relationship with a lawyer, and would not research other lawyers if they had a legal issue for which they needed representation.  

The results are a significant change from a similar FindLaw survey conducted in 2005, reflecting the growth of the Internet and people’s willingness to search online for professional services. In 2005, only seven percent of people said they would use the Internet to find a lawyer, finishing a distant fourth among the research options at the time.  

                                              2014    2005
Internet                                    38%     7%
Ask a friend or relative              29%    65%                  
Consult local bar association    10%    13%
Yellow pages                             4%     10%

“The Internet provides a faster, easier, and more thorough method to find an attorney, compared with the alternatives,” said Stephen Noel, vice president, strategic development and audience, Thomson Reuters. “Friends or relatives may only know a limited number of attorneys, and those attorneys may not specialize in the areas of law where help is needed. Free online resources, such as the FindLaw Lawyer Directory, can quickly identify lawyers in your area. Users can compare attorneys’ credentials and experience, as well as find attorneys that provide free consultations or special services, such as other languages spoken.”  

Other helpful resources include FindLaw’s Guide to Hiring a Lawyer, which provides information on how a lawyer can help, questions to ask when hiring a lawyer, legal aid resources, and attorney fees, FindLaw’s Guide to the U.S. Legal System explains what to expect when you are involved in a lawsuit or criminal proceeding, how the court systems work, a glossary of legal terms, and more.

The FindLaw survey was conducted using a demographically balanced survey of 1000 American adults and has a margin of error of plus-or-minus 3 percent.

FindLaw

FindLaw, part of Thomson Reuters, is a leading provider of business development solutions for small law firms. Through its team of legal marketing experts, FindLaw drives the industry by delivering a comprehensive portfolio of proven online and offline marketing solutions designed to connect law firms with targeted prospective clients. FindLaw is also home to the largest online directory of lawyers and FindLaw.com (www.FindLaw.com), the most popular legal website with more than six million people visiting each month for free information about a legal topic, to solve a legal problem or to find a lawyer.

Thomson Reuters
Thomson Reuters is the world's leading source of intelligent information for businesses and professionals. We combine industry expertise with innovative technology to deliver critical information to leading decision makers in the financial and risk, legal, tax and accounting, intellectual property and science and media markets, powered by the world's most trusted news organization. Thomson Reuters shares are listed on the Toronto and New York Stock Exchanges (symbol: TRI). For more information, go towww.thomsonreuters.com.

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Lawyers can look up jurors on social media but can't connect with them, ABA ethics opinion says

See - Lawyers can look up jurors on social media but can't connect with them, ABA ethics opinion says





"x x x.

Lawyers who want to pick through troves of public information that jurors or potential jurors put on the Internet about themselves may do so, but they may not communicate directly with the jurors, such as asking to “friend” them on Facebook, according to a formal ethics opinion issued today by the ABA Standing Committee on Ethics and Professionalism.

Formal Opinion 466 (PDF) mentions websites and examples of Internet-based electronic social media such as Facebook, MySpace, LinkedIn and Twitter, but notes that because their capabilities change so frequently, the opinion deals only generically with someone’s control over access to their information on websites and ESM or their ability to know who has viewed what is publicly available.

Formal opinions are based on the ABA’s Model Rules of Professional Conduct, which have been adopted by all states except California. The rules are not binding but serve as models that can be adopted or modified. Formal Opinion 466 addresses three situations concerning lawyer review of the Internet footprints of jurors or potential jurors.

• Looking at information available to everyone on a juror’s social media accounts or website when the juror doesn’t know it’s being done. The opinion says the “mere act of observing” is not improper ex parte conduct, much as driving down a juror’s street to get a sense of his or her environs isn’t.

• Asking a juror for access to the his or her social media. The opinion says that is improper, much like stopping the car to ask the juror’s permission to look inside the juror’s house for a better view.

• When a juror finds out, through a notification feature of the social media platform or website, that the lawyer reviewed publicly available information. The formal opinion says the social media provider, not the lawyer, is communicating with the juror, the same as if a neighbor saw the lawyer’s car pass by and told the juror.

On that last point, the formal opinion recommends that lawyers read social media platforms' terms of agreement for information about matters such as automatic subscriber notification features, and to be aware that this information changes frequently.

The formal opinion hedged on one thorny issue: A lawyer’s obligation to notify the court of information gleaned through social media that indicates possible misconduct by the juror.

The problem is a glitch in one revision made by the ABA’s Ethics 2000 Commission, which conducted an extensive review of the Model Rules in that year. For Model Rule 3.3, the ABA House of Delegates adopted the commission’s recommendation for a new subsection (b) concerning a lawyer’s obligation to notify the court of fraudulent or criminal behavior by a juror or potential juror.

The commission intended that it also include lesser wrongdoing—“improper conduct.” But, the Standing Committee wrote in the Formal Opinion 466, this “was never carried out.”

So, for now, if a lawyer comes across publicly available information about a juror on the Internet that indicates a violation of court instructions but not criminal or fraudulent actions, “applicable law” might trigger the lawyer’s duty to report it to the court under current Model Rule 3.3.(b).

x x x ."

Young Attorneys: Have Faith in Your Case

See - Young Attorneys: Have Faith in Your Case





"x x x.

Do your research on opposing counsel

Ok, let’s assume that opposing counsel potentially has some bite behind their bark. Just because they could bring a motion does not mean they will. Don’t forget they have to tell their client “we want to charge you $5,000 to bring this motion, and it’s probably a 50/50 chance we win.”

Reach out to your network of attorneys and find out what they know about opposing counsel. Most people have a reputation, a reputation that will include “they love motion practice” or “they just bark a lot and will always settle at the 12th hour.”

There’s no guarantee they will follow their prior course of action, but it’s still helpful when trying to predict how they view the case and what they might actually do.

Regardless of how they litigate, you will almost always get some nugget like “just offer to buy them coffee and they’ll stop threatening you” or “don’t push them on _____, that will send them into orbit.”

I’m not saying you should let their personal preference absolutely dictate how you run your case. But you should consider it, and if it helps you get a better result for your client, I would absolutely use that information to your advantage.

x x x."

The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority

See - The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority





"x x x.

What should you do when your opponent cites authority in a motion or brief that appears directly on point? Panic. After you finish panicking, you need to determine two threshold issues: whether the authority is binding or merely persuasive and whether the facts are analogous to your situation. The answers to those questions will dictate how you attack the adverse authority.

If the authority seems to be binding (but is not), then explain why the authority doesn’t bind your court. If the facts of a case are dissimilar, you could use the case affirmatively to support your argument or could demonstrate that your opponent inaccurately described the case. If the facts of a case are similar, you could attack its reasoning. But if a case is binding and has directly addressed your issue, the better approach is to distinguish it.

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Google Scholar Advanced Legal Research Tips

See - Google Scholar Advanced Legal Research Tips





"x x x.



Google Scholar came online in November 2009, offering advanced legal research to everyone. Combining case law from state and federal courts around the country with Google’s unique search algorithm, Google Scholar allows anyone to conduct legal research—for free. However, attorneys used to using commercial search engines with very structured search rules may have difficulty adjusting to Google Scholar. TheseGoogle Scholar advanced legal research tips will explain some of the strengths and weaknesses of Google Scholar and how you can use it to save yourself and your clients some money.



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Read full text of article. See link above.

Technology law will soon be reshaped by people who don't use email | Trevor Timm | Comment is free | theguardian.com

See - Technology law will soon be reshaped by people who don't use email | Trevor Timm | Comment is free | theguardian.com



"x x x.

There's been much discussion – and derision – of the US supreme court's recent forays into cellphones and the internet, but as more and more of these cases bubble up to the high chamber, including surveillance reform, we won't be laughing for long: the future of technology and privacy law will undoubtedly be written over the next few years by nine individuals who haven't "really 'gotten to' email" and find Facebook and Twitter "a challenge" .

A pair of cases that went before the court this week raise the issue of whether police can search someone's cellphone after an arrest but without a warrant. The court's decisions will inevitably affect millions. As the New York Times editorial board explained on the eve of the arguments, "There are 12 million arrests in America each year, most for misdemeanors that can be as minor as jaywalking." Over 90% of Americans have cellphones, and as the American Civil Liberties Union argued in a briefing to the court, our mobile devices "are in effect, our new homes".

Most people under 40 probably would agree police should never have the right to rummage through our entire lives without a particular purpose based on probable cause.Yet during arguments, Justice Roberts insinuated that police might reasonably suspect a person who carries two cellphones of being a drug dealer. Is he unaware that a large portion of the DC political class with which he associates – including many of his law clerks – carries both a personal andbusiness phone, daily? The chief justice of the Supreme Court of the United States may have proved this week that he can throw out tech lingo like "Facebook" and even "Fitbit", but he is trapped in the closet from reality.

This is not the first time justices have opened themselves up to mockery for their uninitiated take on tech issues. Just last week, in the copyright case against Aereo, the justices' verbal reach seemed to exceed their grasp, as they inadvertently invented phrases like "Netflick" and "iDrop", among others. Before that, many ripped Justice Roberts for seemingly not knowing the difference between a pager and email. And then there was the time when a group of themtried to comprehend text messages, or when the justices and counsel before them agreed that "any computer group of people" could write most software "sitting around the coffee shop ... over the weekend." (Hey, at least Ginsburg reads Slate.)

The supremes tend to do better on tech cases when they avoid engaging directly in the actual technical substance of technology. They received praise for ruling, 9-0, two years ago that police need a warrant to place a GPS tracker on someone's car. Even then, though, Justice Alito ridiculed Justice Scalia's controlling opinion for determining such a modern issue "based on 18th-century tort law".

When it comes to the future of tech policy in the US, this week's cellphone arguments are just the tip of the iceberg. Right now the FBI is engaged in allvarieties of warrantless surveillance, using a variety of devices. Most critically, the agency thinks it can get our mobile location information, which reveals the most intimate details of our lives, without a warrant. The sharp split in lower courts will only get more pronounced over the next year.

Other cases percolating through the justice system address the question of whether police can compel you to hand over the password to your devices. Given that the right to not self-incriminate is spelled out in the Fifth Amendment, and that it parallels between login credentials and other information stored in your head, compelled decryption may seem antithetical to the Constitution. But in cases involving encrypted hard drives, the government has argued otherwise.

That's not all: internet radio services, out-of-control software patents, and whether online posts should be judged the same as traditionally protected speech – all of these may all bubble up to the high court soon.

And remember, just months before Edward Snowden became a household name, the ACLU was in front of the supreme court arguing the Fisa Amendments Act, one of the primary laws at the center of the NSA scandal, was unconstitutional. The court cowardly dismissed the case 5-4 on "standing" grounds, and never ruled on the merits. One of the first things Snowdenreportedly said after his disclosures when the ACLU became his legal counsel was: "Do you have standing now?"

Do they ever. Thanks to Snowden's revelations, a second flurry of lawsuits – 25, by The Verge's count – have cropped up all over the country. Even NSA advocates, who for years tried to prevent courts from ruling on the subject, are suddenly suggesting the supreme court should weigh in, hoping it's their only way out.

Tellingly, the NSA's legal house of cards is pinned on a horribly outdated case from the 1970s that ruled the government could get the phone records for onesuspect under active investigation, for a short period of time. The government has morphed that to mean they can collect all sorts of metadata, on everyone, forever.

The good news is, if the justices can avoid fixating on technical details – the very kind they don't seem to understand – the Roberts Court may still come to the right decision. After chiding the justices in Aereo, Vox's Tim Lee argued it's actually a good thing the justices are not technically savvy, because it allows them to see the bigger picture, citing that they have "done a remarkably good job of crafting a sensible body of patent and copyright laws in the past few decades". (They also delivered an encouraging decision on patent trolls just this week.)

There's evidence, in recent privacy opinions, that at least some of the justices understand how technology is used, even if they don't use it themselves. As Justice Sotomayor wrote in her concurring opinion in the GPS case:

It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties…This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

Encouragingly, Justice Kagan made similar comments this week.

But as Electronic Frontier Foundation's Parker Higgins convincingly argues, it's not the justices' lack of personal experience with technology that's the problem; it's their tendency to not understand how people use it. Returning to Justice Roberts's concerns about villains with two phones: if he is in fact unaware of how common that behavior is – he certainly didn't watch Breaking Bad – then that suggests a major gap in his understanding of society.

This lack of basic understanding is alarming, because the supreme court is really the only branch of power poised to confront one of the great challenges of our time: catching up our laws to the pace of innovation, defending our privacy against the sprint of surveillance. The NSA is "training more cyberwarriors" as fast as it can, but our elected representatives move at a snail's pace when it comes to the internet. The US Congress has proven itself unable to pass even the most uncontroversial proposals, let alone comprehensive NSA reforms: the legislative branch can't even get its act together long enough to pass an update our primary email privacy law, which was written in 1986 – before the World Wide Web had been invented.

So the future of our privacy, of our technology – these problems land at the feet of a handful of tech-unsavvy judges. Future nominees to the bench should be quizzed on their knowledge of technology at confirmation hearings. And while many have made the argument that the secret Fisa court should employ a technologist to explain technical issues to the less technical judges, the same can be said of the supreme court. It's time to get the net already.

x x x."

BIR to look for other ways to monitor lawyers' tax payments | ABS-CBN News

See - BIR to look for other ways to monitor lawyers' tax payments | ABS-CBN News





"x x x.

MANILA, Philippines - The Bureau of Internal Revenue (BIR) has to look for other ways to monitor the tax payments of lawyers, after the Supreme Court stopped the agency from requiring lawyers to disclose their fees.

BIR deputy commissioner Nelson Aspe said they have to reply on the payment declaration of the lawyers' clients, but he admitted the agency is helpless if the clients decide not to make a declaration.

He noted without the TRO, the BIR's tax collections would improve.

Under the BIR's new rule mandates all self-employed professionals to submit an annual list of professional efes charged for services rendered.

But the TRO only covers lawyers.

"We have a lot of monitoring mechanisms. For instance, we'll just wait for the reports of the withholding agents, their clients but these are limited to clients which are engaged in trade and business," Aspe said on ANC's Headstart.

Questioning legality of BIR rule

Meanwhile, Integrated Bar of the Philippines president Vicente Joyas said they are not trying to evade the payment of correct taxes, but are just questioning the legality of the BIR's rule.

He stressed that under the Constitution, only the Judiciary can create rules for the legal profession.

He added that if the court decides to uphold the rule's legality, they will comply with the order.

"The issue here is the legality of the revenue regulation," Joyas said.

"The Supreme Court said even legal fees should not be disclosed because if we are going to place a price tag on every case that would be a publication which is prohibited by our by-laws... We cannot justify the end simply by the means employed because the means employed will be illegal," he said. - ANC 

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Search and seizure; reasonable suspicion rule - FindLaw | Cases and Codes

See - FindLaw | Cases and Codes





"x x x.

PRADO NAVARETTE et al. v. CALIFORNIA

certiorari to the court of appeal of california, first appellate district

No. 12-9490. Argued January 21, 2014--Decided April 22, 2014

A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana. They searched the truck's bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop.

Held: The traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck's driver was intoxicated. Pp. 3-11.

     (a) The Fourth Amendment permits brief investigative stops when an officer has "a particularized and objective basis for suspecting the particular person stopped of . . . criminal activity." United States v. Cortez, 449 U. S. 411, 417-418. Reasonable suspicion takes into account "the totality of the circumstances," id., at 417, and depends "upon both the content of information possessed by police and its degree of reliability," Alabama v.White, 496 U. S. 325, 330. An anonymous tip alone seldom demonstrates sufficient reliability, White, 496 U. S., at 329, but may do so under appropriate circumstances, id., at 327. Pp. 3-5.

     (b) The 911 call in this case bore adequate indicia of reliability for the officer to credit the caller's account. By reporting that she had been run off the road by a specific vehicle, the caller necessarily claimed an eyewitness basis of knowledge. The apparently short time between the reported incident and the 911 call suggests that the caller had little time to fabricate the report. And a reasonable officer could conclude that a false tipster would think twice before using the 911 system, which has several technological and regulatory features that safeguard against making false reports with immunity. Pp. 5-8.

     (c) Not only was the tip here reliable, but it also created reasonable suspicion of drunk driving. Running another car off the road suggests the sort of impairment that characterizes drunk driving. While that conduct might be explained by another cause such as driver distraction, reasonable suspicion "need not rule out the possibility of innocent conduct." United States v. Arvizu, 534 U. S. 266, 277. Finally, the officer's failure to observe additional suspicious conduct during the short period that he followed the truck did not dispel the reasonable suspicion of drunk driving, and the officer was not required to surveil the truck for a longer period. Pp. 8-10.

Affirmed.

     Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Alito, JJ.,joined. Scalia, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

x x x."

Competition law needed | Inquirer Opinion

See - Competition law needed | Inquirer Opinion





"x x x.

For years the government has tried to enact a comprehensive competition or antitrust law not only to level the playing field for investors but also to protect consumers by giving them access to the best products and services at the most reasonable cost. The issue is again in the news because the Aquino administration has to craft a competition framework to be implemented by a single agency as part of the Philippines’ commitment to the economic integration of Asean (Association of Southeast Asian Nations) in 2015.

As it is, we have more than 30 laws related to competition and antitrust. The 1987 Constitution prohibits monopolies and restraints of trade. The Revised Penal Code states that monopolies and combinations in restraint of trade are punishable acts. And then there are Republic Act No. 3247 (the Act to Prohibit Monopolies and Combinations in Restraint of Trade); RA 165 (Patent Law) and RA 166 (Trademark Law); Presidential Decree No. 49 (Copyright Law); RA 386 (the Civil Code of the Philippines, which stipulates the collection of damages arising from unfair competition);

RA 7581 (the Price Act, which protects consumers by making price manipulation—hoarding, profiteering and cartels—illegal for certain commodities during times of national emergency); and RA 7394 (the Consumer Act of the Philippines, which imposes penalties for deceptive, unfair and unconscionable sales practices in both goods and credit transactions).

The Asean economic integration will result in a region where goods and services, investments and skilled labor can move freely. This was the reason Asean countries set up their own competition policy based on the bloc’s regional guidelines on competition policy. However, a paper submitted to the 2014 Global Competition Review (reputed to be the world’s leading antitrust and competition law journal) points out that the Philippine legal framework for a competition law has not been fully compliant with Asean guidelines. “Throughout the years, the Philippines has enacted fragmented legal provisions (usually part of general statutes) and sector-specific

issuances prohibiting certain anti-competitive acts. The Philippines has yet to promulgate a comprehensive antitrust statute to fully cover the anti-competitive acts mentioned in the guidelines,” the paper says.

It adds: “Given Congress’ lack of success in passing

antitrust legislation, the Philippines’ historical and social circumstances (which have largely concentrated economic power in the hands of a few who lobbied against competition), and the general lack of awareness or enforcement of existing competition laws, it will be interesting to see if the Philippines can comply with the 2015 Asean deadline for the enactment of a comprehensive competition law.”

With lobbying by big business opposed to the entry of competitors in the local market, all competition and

antitrust bills languished at the committee levels in Congress or were passed as watered-down versions of the original. The Ramos administration saw the liberalization of many sectors, but only to a limited extent because of the intense lobbying. The banking industry was opened up to help bring down the cost of borrowed funds, but the law restricted the entry of foreign banks to only 10. The telecom sector was also liberalized to break the monopoly of PLDT, but the entry of new players did not bring down costs as much. Worse, the regulatory agency for the telecom sector has been unable to protect consumers and has often sided with the telecom firms.

Last week, the Philippine Chamber of Commerce and Industry (PCCI), the Philippines’ biggest business organization, again warned of dire results if Congress once more failed to pass a competition law. “If we give our neighbors a difficult time to do business here [due to the absence of a competition law], they will also give us a hard time accessing the Asean market of 600 million consumers,” PCCI president Alfredo M. Yao pointed out.

Congress should pass a competition law if it truly wants to help the economy and the Filipino consumer. How can we benefit from such services as affordable world-class air or sea travel when the law restricts the entry of competitors with more efficient processes and lower costs? How can we expect fair prices for essential commodities if their production or importation is restricted to a privileged few, who charge more than what is necessary due to the absence of competitors?

x  x x."

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Are social media posts admissible in evidence? | Inquirer Business

See - Are social media posts admissible in evidence? | Inquirer Business





"x x x.

Social networking has become part of our daily life with 93 percent of Filipino Internet users having their own Facebook account.

On the whole, this is an excellent social phenomenon. But there is also a bad part of it.

Consider, for example, a Facebook post by Mr. Y that reads: “Senator X is a crook. He stole millions of taxpayers’ money from the PDAF. He is a certified thief. He deserves all the public humiliation that he is now getting.”

This kind of comment is definitely libelous. It may be the basis for a civil case for damages and a criminal case for libel.

The post, in turn, is admissible in evidence not only in a civil case but also in a criminal case. (SC En Banc Resolution dated September 24, 2002 in AM No. 01-07-01)

The Facebook post in question is considered a document pursuant to the functional equivalence and non-discrimination principles under the E-Commerce Act of 2000 (ECA) and the Rules on Electronic Evidence (REE), which the Supreme Court promulgated in 2001 to implement the ECA in our courts of law.

Under these principles, an electronic document is considered the functional equivalent of a paper-based document and should not be discriminated against as evidence solely on the ground that it is not in the standard paper form.

In fact, Section 12 of the ECA expressly provides that “nothing in the application of the rules of evidence shall deny admissibility of an electronic data message or electronic document on the sole ground that it is in electronic form, or on the ground that it is not the standard form.”

The REE further provides that “[w]henever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.” (Section 1, Rule 3)

In layman’s terms, the Facebook post in question should be treated as a paper-based document. The legal question is how to prove or authenticate this Facebook post as evidence in a court of law.

Electronic document

There are two possible situations.

The first is that a record of the Facebook post is retained. In such case, the post is characterized as electronic document under the ECA and REE.

Section 2, Rule 5 of the REE provides that “[b]efore any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge.”

The first two modes are technical. The first is authentication through digital signatures which, although not well known when the REE was promulgated in 2001, is now fast becoming commonplace.

The second is authentication through other security procedures or devices (retina scan, PDF-8, etc.) as may be authorized by the Supreme Court. No such other procedures or devices have yet been authorized.

The third mode is what I normally refer to in my Ateneo Evidence class and my MCLE and PHILJA lectures as the “layman’s approach” to authenticating electronic document.

Under the third mode of authenticating electronic documents, an electronic document may be authenticated by any “other evidence showing its integrity and reliability to the satisfaction of the judge.”

For example, the prosecution may present a witness to testify that he saw Y write the post in his Facebook account because, according to him, he “hate[s] public officials feasting on the people’s money.”

In practical terms, under the layman’s approach, authenticating an electronic document is just like authenticating a paper-based document under the traditional rules of evidence. No more, no less.

Ephemeral communication

The second situation is that the Facebook post is deleted at a certain point, as what often happens.

The REE has a provision specifically addressing the situation. If deleted or removed, the post is considered ephemeral electronic communication under the REE.

Section 1(k), Rule 2 of the REE provides that “[e]phemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.”

The REE provides for the method of proof of the Facebook post in question when it states: “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.” (Section 2, par. 1, Rule 11).

In effect, this mode of authentication follows the layman’s approach for authenticating electronic evidence.

The author is a senior partner of the Angara Abello Concepcion Regala & Cruz Law Offices and a law professor in the Ateneo Law School. The views expressed in this column are solely his and should in no way be attributed to Accralaw or Ateneo Law School. He may be contacted at francis.ed.lim@gmail.com.

x x x."

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