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The three-member Second Division of the Commission on Elections (Comelec) cancelled the certificate of candidacy for president of Sen. Grace Poe on the ground that her “material representations” about her natural-born citizenship and 10-year Philippine residency were “false.” In contrast, the Senate Electoral Tribunal (SET) earlier upheld her natural-born citizenship but did not rule on her residency. Here are some questions raised by readers:

Question 1: What will happen to these contrasting rulings? Answer: Senator Poe will file Monday with the seven-member Comelec en banc a motion for reconsideration. On the other hand, with the denial of his motion for reconsideration by the SET, Rizalino David is poised to go to the Supreme Court. Ultimately, these two cases (and the three others still pending in the Comelec’s First Division) will be elevated to the high court for a final consolidated decision. Meanwhile, Poe’s name will be printed in the automated ballots, as was done in Joseph Estrada’s case in the 2010 presidential election.

Question 2: Once the SET decision reaches the Supreme Court, will the three justice-members still participate and vote there? Answer: No, having judged below, they can no longer judge above.

Question 3: The SET voted 5-4. Isn’t this unreliable? Answer: Many landmark cases, here and abroad, have been decided by one vote. Thus, our Supreme Court, voting 8-7 in Lambino vs Comelec (Oct. 26, 2006), trashed the people’s initiative to institute the parliamentary system here. The US Supreme Court, voting 5-4 in Bush vs Gore (Dec. 12, 2000), rejected the recount of the contested ballots in Florida and ushered in the election of George W. Bush as the new US president.

Question 4: Isn’t it unfair for Sen. Loren Legarda to ask our electorate to decide legal issues? Answer: No, she did not so ask. Rather, she first quoted from Frivaldo vs Comelec (June 26, 1996) the two main ways of legal interpretation, thus: “At balance, the question really boils down to a choice of … how to interpret and apply laws relating to elections: literal or liberal, the letter or the spirit, the naked provision or the ultimate purpose, legal syllogism or substantial justice, in isolation of or in the context of social conditions, harshly against or gently in favor of the voters’ choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.”

Then, choosing the liberal way of interpretation, she opined: “In case of doubt in the interpretation of constitutional and legal provisions involving popular sovereignty, it is best to interpret such provisions in a manner that enables our electorate to elect freely their chosen leader.”

Question 5: Under the same Frivaldo doctrine, should Rodrigo Duterte be allowed to run? Answer: I do not have the complete facts on Duterte’s case but if, as reported in the media, the only reason for his alleged disqualification is a typographical error, I believe he should be allowed to run for president. Substantial justice, not literal interpretation, should be applied. This does not mean I approve of his human rights shortcuts or habitual cussing. Legal eligibility is different from electoral acceptability.

Question 6: Senator Poe is not poor. Why should the social justice principle of giving more law to those who have less in life favor her? Answer: Social justice does not favor only the impoverished. It equally favors the disabled, the sick, the abandoned (like foundlings), the infirm, the mentally-retarded, the disaster-stricken and everyone economically, socially, politically, racially and medically disadvantaged.

Question 7: Why should the abandoned, like foundlings, be given more law? Dura lex sed lex. The law may be harsh; nevertheless, it must strictly be followed and applied equally to everyone, isn’t it? Answer: Dura lex sed lex is a favorite expression of lawyers educated under the Analytical School of legal philosophy. They interpret law verba legis, that is, according to the literal meaning of the words used. However, I believe the better way of interpretation is to look at the spirit, the intent and the substance of the law. I think that lawyers should not be mere automatons or legal technicians who apply laws strictly and automatically without considering their effects on society. Rather, they should be social engineers who help build just societies with law as their tool.

Question 8: Apart from the presidency, vice presidency, Senate and House memberships, are there other positions that require natural-born citizenship? Answer: Yes, thousands of

others, like commissioners of elections, audit, civil service, human rights; ombudsman; most judicial and prosecutorial posts; directorships in several bureaus and commissions; memberships in boards of examiners of various professions; grantees of scholarships; and others too numerous to fit in this space. The point is: Foundlings should not be denied entry to these offices or grants.

Question 9: Should we simply forget Poe’s abandonment of our country when she became an American and accept her now as our president? Answer: That is a political, not legal, question that is better answered by our people via their ballots. Not every question can and should be decided by our tribunals. Let Poe explain to our people, and if the majority accepts her explanation and votes her to office, so be it. This is the essence of democracy. As the axiom goes, Vox populi vox Dei.

* * *

Comments to chiefjusticepanganiban@hotmail.com

x x x."

Saturday, December 5, 2015

Mother sues British School for P100M over son’s suicide | Inquirer News

See - Mother sues British School for P100M over son’s suicide | Inquirer News

"x x x.

A P100-million damage suit was filed Friday by the mother of the British School Manila (BSM) student who committed suicide reportedly after being humiliated by his teacher over a “plagiarized” essay.

Trixie Madamba, accompanied by husband Jose Ma. Rafael and lawyers Joseph Noel Estrada and Terese Ray Anne Aquino, sued the Taguig City-based international school for the death of her 18-year-old son Liam, who jumped to his death from the sixth floor of a parking building in Makati City on Feb. 6.

“We are filing the civil case for justice, in order to achieve some measure of peace and closure,” Madamba told reporters. “The school has remained quite arrogant. They have not once reached out. They have not tried to apologize. We simply want them to come forward and apologize.”

READ: Ma of student who committed suicide laments school’s ‘lack of compassion’

According to Madamba, Natalie Mann, the teacher who allegedly humiliated her son before he committed suicide, has left the country and is now teaching in the United Kingdom.

The Inquirer tried to get BSM’s comment but was told by a receptionist that the headmaster was in a meeting. The school official has yet to return the call at press time.

“(It) is a civil case for damages, for negligence that led to Liam ending his life,” Estrada said, referring to the 41-page document filed in the Taguig Regional Trial Court.

According to a statement issued by Aquino, the school was being sued through its council of trustees composed of Wick Veloso, Anirvan Ghosh Dastidar, Nigel Boud and Sebastian Quinones; its board of governors and committee in charge of operations composed of Simon Bewlay, Brendan Egan, Stein Melsbo, Bart Edés, Paul Ingram, Alison Doig Henderson, Alan Hearn, Anne Haslam, Josephine Melrose, Claire Carr, Diana Guild and Richard Kho; and headmaster Simon Mann.

“The BSM executives and Mr. Mann are being sued for their… unlawful and wrongful acts that caused the loss of Liam’s life and violated his rights and the rights of the Madamba family under the new Civil Code of the Philippines, (Batas Pambansa No.) 232 and the Universal Declaration of Human Rights,” the statement said.

The complaint invoked Civil Code provisions on the rights of persons to be treated with dignity and protected from humiliation, it said.

BP No. 232, meanwhile, is also known as the Act Providing for the Establishment and Maintenance of an Integrated System of Education.

Estrada said the civil case asked for P424,000 in actual damages; P80,000,000 to account for Liam’s “loss of earning capacity”; P5,000,000 in moral damages; P10,000,000 in exemplary damages; and P5,000,000 in attorney’s fees and litigation expenses.

He said the family had also filed against BSM an administrative complaint in the Department of Education for alleged violation of the agency’s child protection policies, and a complaint for obstruction of justice in the Department of Justice. TVJ

x x x."

Wednesday, November 18, 2015

Indispensable party vs. necessary party

G.R. No. 201781, December 10, 2014

ANNIE GERONIMO, SUSAN GERONIMO AND SILVERLAND ALLIANCE CHRISTIAN CHURCH*, PETITIONERS, VS. SPS. ESTELA C. CALDERON AND RODOLFO T. CALDERON, RESPONDENTS.

(Cf. The Lawyer's Post).

"x x x.

As to petitioners’ claim that they are merely necessary parties and that there must be a prior judgment directing and commanding the developer Silverland Realty & Development Corporation to enforce its contractual obligations, we are not convinced.

Respondents have sued not only the petitioners but also the developer corporation and the homeowners’ association. That Silverland Realty & Development Corporation and Silverland Village 1 Homeowners Association did not file their answer, did not divest the HLURB of jurisdiction over the case. We agree with respondents that petitioners are indispensable parties for they were the ones who built and operate the church inside the subdivision and without them no final determination can be had of the action. Petitioners are the ones who will be affected by the judgment. In fact, they are the ones who are prohibited from using the subject property as a church.

x x x."

Development permit

G.R. No. 201781, December 10, 2014

ANNIE GERONIMO, SUSAN GERONIMO AND SILVERLAND ALLIANCE CHRISTIAN CHURCH*, PETITIONERS, VS. SPS. ESTELA C. CALDERON AND RODOLFO T. CALDERON, RESPONDENTS.

(Cf. The Lawyer's Post).

"x x x.

Neither can the argument that herein respondents are not bound by the development permit as this is only between the government and the developer, be held valid. To accept such rationalization would be to say that buyers, after acquiring title to a subdivision property, are free to set aside all zoning and development plans the government has deemed appropriate for the area in consideration of the general welfare.

Respondents, in deciding to acquire property in a subdivision project, are deemed to have accepted and understood, that they are not merely trying to possess a property but are in fact joining a unique community with a distinctive lifestyle envisioned since its development.

While the construction and establishment of any church is not prohibited within a subdivision, the same should be located in an area designed or allowable in the approved development plan for the purpose.⁠12

x x x."

The rules of evidence are not strictly applied in proceedings before administrative bodies.

G.R. No. 201781, December 10, 2014
ANNIE GERONIMO, SUSAN GERONIMO AND SILVERLAND ALLIANCE CHRISTIAN CHURCH*, PETITIONERS, VS. SPS. ESTELA C. CALDERON AND RODOLFO T. CALDERON, RESPONDENTS.
(Cf. The Lawyer's Post).

"x x x.

Here, as noted by the HLURB, the Development Permit indicates the use of the property as residential except for the designated open spaces. Petitioners do not deny that the building built beside the lot of Annie and Joel Geronimo is used as a church and that other religious activities are performed there. Clearly, this usage contravenes the land use policy particularly prescribed in the subdivision plan and in the Development Permit. Respondents, as subdivision lot owners, are entitled to assert that the use of the said property for religious activities be enjoined since it clearly violates the intended use of the subject lot.

Also, we find no fault on the part of the CA in affirming the HLURB’s act of taking judicial notice of the Development Permit issued for the project.To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies.⁠10Although trial courts are enjoined to observe strict enforcement of the rules of evidence, in connection with evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that:

[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them.⁠11
The issue of taking judicial notice of the Development Permit was also properly discussed and justified by the Board of Commissioners of the HLURB, First Division, to wit:

With respect to the assailed documents which the Office relied upon to arrive at its conclusion, Rule X, Section 6 of the HLURB Rules of Procedure provides:
Section 6. Summary resolution. – With or without the position paper or draft decision, the Arbiter shall resume (sic) the cases on bases of the pleadings and pertinent records of the case and of the Board.
The Regional Office can therefore take judicial notice of all documents forming part of its official records. The rule is in accord with Section 22 of Chapter IV, Book VI of Executive Order No. 292, s. 1987, otherwise known as the Administrative Code.

x x x."

Administrative agency; exercise of adjudicative power; sound discretion.

xxx. Well-entrenched is the rule that courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency.⁠13

Administrative agencies are given a wide latitude in the evaluation of evidence and in the exercise of their adjudicative functions, latitude which includes the authority to take judicial notice of facts within their special competence.⁠14

x x x."

Use of residential lot must conform with Subdivision Plan and Development Permit.

G.R. No. 201781, December 10, 2014

ANNIE GERONIMO, SUSAN GERONIMO AND SILVERLAND ALLIANCE CHRISTIAN CHURCH*, PETITIONERS, VS. SPS. ESTELA C. CALDERON AND RODOLFO T. CALDERON, RESPONDENTS.

(Cf. The Lawyer's Post).

"x x x.

On the second issue, we uphold the ruling that petitioners cannot use #46 of Silverlane Street for religious purposes or as a location of a church.

Here, as noted by the HLURB, the Development Permit indicates the use of the property as residential except for the designated open spaces. Petitioners do not deny that the building built beside the lot of Annie and Joel Geronimo is used as a church and that other religious activities are performed there. Clearly, this usage contravenes the land use policy particularly prescribed in the subdivision plan and in the Development Permit. Respondents, as subdivision lot owners, are entitled to assert that the use of the said property for religious activities be enjoined since it clearly violates the intended use of the subject lot.

Also, we find no fault on the part of the CA in affirming the HLURB’s act of taking judicial notice of the Development Permit issued for the project.To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies.⁠10Although trial courts are enjoined to observe strict enforcement of the rules of evidence, in connection with evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that:

[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them.⁠11

The issue of taking judicial notice of the Development Permit was also properly discussed and justified by the Board of Commissioners of the HLURB, First Division, to wit:

With respect to the assailed documents which the Office relied upon to arrive at its conclusion, Rule X, Section 6 of the HLURB Rules of Procedure provides:

Section 6. Summary resolution. – With or without the position paper or draft decision, the Arbiter shall resume (sic) the cases on bases of the pleadings and pertinent records of the case and of the Board.

The Regional Office can therefore take judicial notice of all documents forming part of its official records. The rule is in accord with Section 22 of Chapter IV, Book VI of Executive Order No. 292, s. 1987, otherwise known as the Administrative Code.

x x x."

Jurisdiction of Housing and Land Use Regulatory Board (HLURB)

G.R. No. 201781, December 10, 2014

ANNIE GERONIMO, SUSAN GERONIMO AND SILVERLAND ALLIANCE CHRISTIAN CHURCH*, PETITIONERS, VS. SPS. ESTELA C. CALDERON AND RODOLFO T. CALDERON, RESPONDENTS.

(Cf. The Lawyer's Post).

"x x x.

We explained the HLURB’s exclusive jurisdiction in Christian General Assembly, Inc. v. Spouses Ignacio⁠3 in this wise:

Generally, the extent to which an administrative agency may exercise its powers depends largely, if not wholly, on the provisions of the statute creating or empowering such agency. Presidential Decree (P.D.) No. 1344, “EMPOWERING THE NATIONAL HOUSING AUTHORITY TO ISSUE WRIT OF EXECUTION IN THE ENFORCEMENT OF ITS DECISION UNDER PRESIDENTIAL DECREE NO. 957,” clarifies and spells out the quasi-judicial dimensions of the grant of jurisdiction to the HLURB in the following specific terms:

SEC. 1. In the exercise of its functions to regulate the real estate trade and business and in addition to its powers provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive jurisdiction to hear and decide cases of the following nature:

Unsound real estate business practices;

Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker or salesman; and

Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lots or condominium units against the owner, developer, dealer, broker or salesman.

The extent to which the HLURB has been vested with quasi-judicial authority must also be determined by referring to the terms of P.D. No. 957, “THE SUBDIVISION AND CONDOMINIUM BUYERS’ PROTECTIVE DECREE.”

Section 3 of this statute provides:

x x x National Housing Authority [now HLURB]. – The National Housing Authority shall have exclusive jurisdiction to regulate the real estate trade and business in accordance with the provisions of this Decree.

In Maria Luisa Park Association, Inc. (MPLAI) v. Almendras,⁠4 we also ruled that:

The provisions of P.D. No. 957 were intended to encompass all questions regarding subdivisions and condominiums. The intention was aimed at providing for an appropriate government agency, the HLURB, to which all parties aggrieved in the implementation of provisions and the enforcement of contractual rights with respect to said category of real estate may take recourse. The business of developing subdivisions and corporations being imbued with public interest and welfare, any question arising from the exercise of that prerogative should be brought to the HLURB which has the technical know-how on the matter. In the exercise of its powers, the HLURB must commonly interpret and apply contracts and determine the rights of private parties under such contracts. This ancillary power is no longer a uniquely judicial function, exercisable only by the regular courts. (Emphasis supplied)

And in Spouses Chua v. Ang,⁠5 we held that:

The law recognized, too, that subdivision and condominium development involves public interest and welfare and should be brought to a body, like the HLURB, that has technical expertise. In the exercise of its powers, the HLURB, on the other hand, is empowered to interpret and apply contracts, and determine the rights of private parties under these contracts. This ancillary power, generally judicial, is now no longer with the regular courts to the extent that the pertinent HLURB laws provide.

Viewed from this perspective, the HLURB’s jurisdiction over contractual rights and obligations of parties under subdivision and condominium contracts comes out very clearly. x x x

In the present case, respondents are buyers of a subdivision lot from subdivision owner and developer Silverland Realty & Development Corporation.Respondents’ action against Silverland Realty & Development Corporation was for violation of its own subdivision plan when it allowed the construction and operation of SACC.⁠6 Respondents sued to stop the church activities inside the subdivision which is in contravention of the residential use of the subdivision lots. Undoubtedly, the present suit for the enforcement of statutory and contractual obligations of the subdivision developer clearly falls within the ambit of the HLURB’s jurisdiction.Needless to stress, when an administrative agency or body is conferred quasi-judicial functions, all controversies relating to the subject matter pertaining to its specialization are deemed to be included within the jurisdiction of said administrative agency or body.⁠7 Split jurisdiction is not favoured.⁠8

Thus, respondents properly filed their complaint before the HLURB. The HLURB has exclusive jurisdiction over complaints arising from contracts between the subdivision developer and the lot buyer, or those aimed at compelling the subdivision developer to comply with its contractual and statutory obligations to make the subdivision a better place to live in⁠9.

x x x."

Jurisdiction over the subject matter of a case

THIRD DIVISION, G.R. No. 201781, December 10, 2014, ANNIE GERONIMO, SUSAN GERONIMO AND SILVERLAND ALLIANCE CHRISTIAN CHURCH*, PETITIONERS, VS. SPS. ESTELA C. CALDERON AND RODOLFO T. CALDERON, RESPONDENTS. (The Lawyer's Post).

"x x x.

On the first issue, we agree with the CA that the HLURB has jurisdiction over the present controversy.

Jurisdiction over the subject matter of a case is conferred by law and determined by the allegations in the complaint which comprise a concise statement of the ultimate facts constituting the plaintiff’s cause of action.

The nature of an action, as well as which court or body has jurisdiction over it, is determined based on the allegations contained in the complaint of the plaintiff, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein.

The averments in the complaint and the character of the relief sought are the ones to be consulted.

Once vested by the allegations in the complaint, jurisdiction also remains vested irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein.⁠1

We have ruled that the jurisdiction of the HLURB to hear and decide cases is determined by the nature of the cause of action, the subject matter or property involved and the parties.⁠2

x x x."

Compromise agreement; If one of the parties fails or refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand.

SECOND DIVISION, G.R. No. 191336, January 25, 2012, CRISANTA ALCARAZ MIGUEL, PETITIONER, VS. JERRY D. MONTANEZ, RESPONDENT.    (The Lawyer's Post).

"x x x.

Because the respondent failed to comply with the terms of theKasunduang Pag-aayos, said agreement is deemed rescinded pursuant to Article 2041 of the New Civil Code and the petitioner can insist on his original demand. Perforce, the complaint for collection of sum of money is the proper remedy.

The petitioner contends that the CA erred in ruling that she should have followed the procedure for enforcement of the amicable settlement as provided in the Revised Katarungang Pambarangay Law, instead of filing a collection case. The petitioner points out that the cause of action did not arise from the Kasunduang Pag-aayos but on the respondent’s breach of the original loan agreement.[1]

This Court agrees with the petitioner.

It is true that an amicable settlement reached at the barangay conciliation proceedings, like the Kasunduang Pag-aayos in this case, is binding between the contracting parties and, upon its perfection, is immediately executory insofar as it is not contrary to law, good morals, good customs, public order and public policy.[2]This is in accord with the broad precept of Article 2037 of the Civil Code, viz:

A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise.

Being a by-product of mutual concessions and good faith of the parties, an amicable settlement has the force and effect of res judicata even if not judicially approved.[3] It transcends being a mere contract binding only upon the parties thereto, and is akin to a judgment that is subject to execution in accordance with the Rules.[4] Thus, under Section 417 of the Local Government Code,[5] such amicable settlement or arbitration award may be enforced by execution by the Barangay Lupon within six (6) months from the date of settlement, or by filing an action to enforce such settlement in the appropriate city or municipal court, if beyond the six-month period.

Under the first remedy, the proceedings are covered by the Local Government Code and the Katarungang Pambarangay Implementing Rules and Regulations. The Punong Barangay is called upon during the hearing to determine solely the fact of non-compliance of the terms of the settlement and to give the defaulting party another chance at voluntarily complying with his obligation under the settlement. Under the second remedy, the proceedings are governed by the Rules of Court, as amended. The cause of action is the amicable settlement itself, which, by operation of law, has the force and effect of a final judgment.[6]

It must be emphasized, however, that enforcement by execution of the amicable settlement, either under the first or the second remedy, is only applicable if the contracting parties have not repudiated such settlement within ten (10) days from the date thereof in accordance with Section 416 of the Local Government Code. If the amicable settlement is repudiated by one party, either expressly or impliedly, the other party has two options, namely, to enforce the compromise in accordance with the Local Government Code or Rules of Court as the case may be, or to consider it rescinded and insist upon his original demand. This is in accord with Article 2041 of the Civil Code, which qualifies the broad application of Article 2037, viz:

If one of the parties fails or refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand.

In the case of Leonor v. Sycip,[7] the Supreme Court (SC) had the occasion to explain this provision of law. It ruled that Article 2041 does not require an action for rescission, and the aggrieved party, by the breach of compromise agreement, may just consider it already rescinded, to wit:

It is worthy of notice, in this connection, that, unlike Article 2039 of the same Code, which speaks of “a cause of annulment or rescission of the compromise” and provides that “the compromise may be annulled or rescinded” for the cause therein specified, thus suggesting an action for annulment or rescission, said Article 2041 confers upon the party concerned, not a “cause” for rescission, or the right to “demand” the rescission of a compromise, but the authority, not only to “regard it as rescinded”, but, also, to “insist upon his original demand”. The language of this Article 2041, particularly when contrasted with that of Article 2039, denotes that no action for rescission is required in said Article 2041, and that the party aggrieved by the breach of a compromise agreement may, if he chooses, bring the suit contemplated or involved in his original demand, as if there had never been any compromise agreement, without bringing an action for rescission thereof. He need not seek a judicial declaration of rescission, for he may “regard” the compromise agreement already “rescinded”[8]. (emphasis supplied)

As so well stated in the case of Chavez v. Court of Appeals,[9] a party’s non-compliance with the amicable settlement paved the way for the application of Article 2041 under which the other party may either enforce the compromise, following the procedure laid out in the Revised Katarungang Pambarangay Law, or consider it as rescinded and insist upon his original demand. To quote:

In the case at bar, the Revised Katarungang Pambarangay Law provides for a two-tiered mode of enforcement of an amicable settlement, to wit: (a) by execution by the Punong Barangay which is quasi-judicial and summary in nature on mere motion of the party entitled thereto; and (b) an action in regular form, which remedy is judicial. However, the mode of enforcement does not rule out the right of rescission under Art. 2041 of the Civil Code. The availability of the right of rescission is apparent from the wording of Sec. 417 itself which provides that the amicable settlement “may” be enforced by execution by the lupon within six (6) months from its date or by action in the appropriate city or municipal court, if beyond that period. The use of the word “may” clearly makes the procedure provided in the Revised Katarungang Pambarangay Law directory or merely optional in nature.

Thus, although the “Kasunduan” executed by petitioner and respondent before the Office of the Barangay Captain had the force and effect of a final judgment of a court, petitioner’s non-compliance paved the way for the application of Art. 2041 under which respondent may either enforce the compromise, following the procedure laid out in the Revised Katarungang Pambarangay Law, or regard it as rescinded and insist upon his original demand. Respondent chose the latter option when he instituted Civil Case No. 5139-V-97 for recovery of unrealized profits and reimbursement of advance rentals, moral and exemplary damages, and attorney’s fees. Respondent was not limited to claiming P150,000.00 because although he agreed to the amount in the “Kasunduan,” it is axiomatic that a compromise settlement is not an admission of liability but merely a recognition that there is a dispute and an impending litigation which the parties hope to prevent by making reciprocal concessions, adjusting their respective positions in the hope of gaining balanced by the danger of losing. Under the “Kasunduan,” respondent was only required to execute a waiver of all possible claims arising from the lease contract if petitioner fully complies with his obligations thereunder. It is undisputed that herein petitioner did not.[10] (emphasis supplied and citations omitted)

In the instant case, the respondent did not comply with the terms and conditions of the Kasunduang Pag-aayos. Such non-compliance may be construed as repudiation because it denotes that the respondent did not intend to be bound by the terms thereof, thereby negating the very purpose for which it was executed. Perforce, the petitioner has the option either to enforce the Kasunduang Pag-aayos, or to regard it as rescinded and insist upon his original demand, in accordance with the provision of Article 2041 of the Civil Code. Having instituted an action for collection of sum of money, the petitioner obviously chose to rescind the Kasunduang Pag-aayos. As such, it is error on the part of the CA to rule that enforcement by execution of said agreement is the appropriate remedy under the circumstances.

Considering that the Kasunduang Pag-aayos is deemed rescinded by the non-compliance of the respondent of the terms thereof, remanding the case to the trial court for the enforcement of said agreement is clearly unwarranted.

The petitioner avers that the CA erred in remanding the case to the trial court for the enforcement of the Kasunduang Pag-aayos as it prolonged the process, “thereby putting off the case in an indefinite pendency.[11]” Thus, the petitioner insists that she should be allowed to ventilate her rights before this Court and not to repeat the same proceedings just to comply with the enforcement of the Kasunduang Pag-aayos, in order to finally enforce her right to payment.[12]

The CA took off on the wrong premise that enforcement of the Kasunduang Pag-aayos is the proper remedy, and therefore erred in its conclusion that the case should be remanded to the trial court. The fact that the petitioner opted to rescind the Kasunduang Pag-aayos means that she is insisting upon the undertaking of the respondent under the original loan contract. Thus, the CA should have decided the case on the merits, as an appeal before it, and not prolong the determination of the issues by remanding it to the trial court. Pertinently, evidence abounds that the respondent has failed to comply with his loan obligation. In fact, the Kasunduang Pag-aayos is the well nigh incontrovertible proof of the respondent’s indebtedness with the petitioner as it was executed precisely to give the respondent a second chance to make good on his undertaking. And since the respondent still reneged in paying his indebtedness, justice demands that he must be held answerable therefor.

x x x."

Special complex crime of robbery with homicide

G.R. No. 212932 January 21, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. ARNEL BALUTE y VILLANUEVA, Accused-Appellant.

"x x x.

In People v. Ibañez,15 the Court exhaustively explained that "[a] special complex crime of robbery with homicide takes place when a homicide is committed either by reason,or on the occasion, of the robbery.

To sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (1) the taking of personal property belonging to another; (2) with intent to gain; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, was committed.

A conviction requires certitude that the robbery is the main purpose, and [the] objective of the malefactor and the killing is merely incidental to the robbery.

The intent to rob must precede the taking of human life but the killing may occur before, during or after the robbery."16

Homicide is said to have been committed by reason or on occasion of robbery if, for instance, it was committed: (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or (d) to eliminate witnesses in the commission of the crime.17.

x x x."

Factual findings of the trial court

G.R. No. 212932 January 21, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. ARNEL BALUTE y VILLANUEVA, Accused-Appellant.

"x x x.

It must be stressed that in criminal cases, factual findings of the trial court are generally accorded great weight and respect on appeal, especially when such findings are supported by substantial evidence on record.

It is only in exceptional circumstances, such as when the trial court overlooked material and relevant matters, that the Court will re-calibrate and evaluate the factual findings of the court below.14

Guided by the foregoing principle, the Court finds no cogent reason to disturb the RTC’s factual findings, as affirmed by the CA.

x x x."

Syndicated Estafa; PD 1689; Art. 315, Rev. Penal Code

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs. PALMY TIBAYAN and RICO Z. PUERTO, Accused-Appellants. G.R. Nos. 209655-60, January 14, 2015

"x x x.

The Issue Before the Court

The primordial issue for the Court’s resolution is whether or not accused-appellants are guilty beyond reasonable doubt of the crime of Syndicated Estafa defined and penalized under Item 2 (a), Paragraph 4,

Article 315 of the RPC in relation to PD 1689.

The Court’s Ruling

The Court sustains the convictions of accused-appellants.

Item 2 (a), Paragraph 4, Article 315 of the RPC provides:

Art. 315. Swindling (estafa).– Any person who shall defraud another by any means mentioned hereinbelow shall be punished by:

x x x x

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business, or imaginary transactions; or by means of other similar deceits.

x x x x

The elements of Estafa by means of deceit under this provision are the following: (a) that there must be a false pretense or fraudulent representation as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions; (b) that such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud; (c) that the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and (d) that, as a result thereof, the offended party suffered damage.41

In relation thereto, Section 1 of PD 1689 defines Syndicated Estafa as follows:

Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Articles 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperatives, "samahang nayon(s)," or farmers’ associations, or funds solicited by corporations/associations from the general public.

Thus, the elements of Syndicated Estafa are: (a) Estafa or other forms of swindling, as defined in Articles 315 and 316 of the RPC, is committed; (b) the Estafa or swindling is committed by a syndicate of five (5) or more persons; and (c) defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)," or farmers’ associations, or of funds solicited by corporations/associations from the general public.42

In this case, a judicious review of the records reveals TGICI’s modus operandiof inducing the public to invest in it on the undertaking that their investment would be returned with a very high monthly interest rate ranging from three to five and a half percent (3%-5.5%).43 Under such lucrative promise, the investing public are enticed to infuse funds into TGICI. However, as the directors/incorporators of TGICI knew from the start that TGICI is operating withoutany paid-up capital and has no clear trade by which it can pay the assured profits to its investors,44 they cannot comply with their guarantee and had to simply abscond with their investors’ money. Thus, the CA correctly held that accused-appellants, along with the other accused who are still at large, used TGICI to engage ina Ponzi scheme, resulting in the defraudation of the TGICI investors.

To be sure, a Ponzi scheme is a typeof investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors. Its organizers often solicit new investors by promising to invest funds in opportunities claimed to generate high returns with little or no risk. In many Ponzi schemes, the perpetrators focus on attracting new money to make promised payments to earlier-stage investors to create the false appearance that investors are profiting from a legitimate business.45 It is not an investment strategy but a gullibility scheme, which works only as long as there is an ever increasing number of new investors joining the scheme.46 It is difficult to sustain the scheme over a long period of time because the operator needs an ever larger pool of later investors to continue paying the promised profits toearly investors. The idea behind this type of swindle is that the "con-man" collects his money from his second or third round of investors and then absconds before anyone else shows up to collect. Necessarily, Ponzi schemes only last weeks, or months at the most.47

In this light, it is clear that all the elements of Syndicated Esta/a, committed through a Ponzi scheme, are present in this case, considering that: (a) the incorporators/directors of TGICI comprising more than five (5) people, including herein accused-appellants, made false pretenses and representations to the investing public - in this case, the private complainants - regarding a supposed lucrative investment opportunity with TGICI in order to solicit money from them; (b) the said false pretenses and representations were made prior to or simultaneous with the commission of fraud; (c) relying on the same, private complainants invested their hard earned money into TGICI; and (d) the incorporators/directors of TGICI ended up running away with the private complainants' investments, obviously to the latter's prejudice.

Corollary thereto, the CA correctly upgraded accused-appellants' conviction from simple Estafa to Syndicated Estafa.1âwphi1 In a criminal case, an appeal throws the whole case wide open for review. Issues whether raised or not by the parties may be resolved by the appellate court.48 Hence, accused appellants' appeal conferred upon the appellate court full jurisdiction and rendered it competent to examine the records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law.49

x x x."

NY Times: Forced Arbitration is a Privatization of Justice System | Todd Steigman | LinkedIn

See - NY Times: Forced Arbitration is a Privatization of Justice System | Todd Steigman | LinkedIn

"x x x.

In a special report, the NY Times explains how forced arbitration has resulted in a privatization of the justice system where "rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients."

http://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html?hp&action=click&pgtype=Homepage&module=first-column-region&region=top-news&WT.nav=top-news&_r=0

As the article explains, companies have inserted arbitration clauses in contracts in order to deprive tens of millions of individuals, employees, and consumers their day in court. Arbitrators decide what evidence the parties can offer, and how much a company is required to disclose. Unlike court proceedings, decisions by an arbitrator are almost impossible to appeal. As the Times explains, the arbitrators - - who are paid substantial fees - - have a built-in incentive to decide matters favorably for companies who are more likely to be repeat customers. More than three dozen arbitrators interviewed by the Times confirmed that they "felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business."

The current system of forced arbitration favors large companies to the detriment of individuals, employees, and consumers who are often not even aware that they are signing away their rights to a day in court, and it is is need of reform. Companies have taken advantage of forced arbitration provisions to deprive employees of their right to have claims decided in court, including whistleblower claims, retaliation claims, discrimination claims, wrongful discharge claims, unpaid wage and overtime claims, as well as others. Proposals like the Arbitration Fairness Act of 2015 are needed to level the playing field.

https://s3.amazonaws.com/membercentralcdn/sitedocuments/nela/nela/0179/733179.pdf?AWSAccessKeyId=0D2JQDSRJ497X9B2QRR2&Expires=1446425750&Signature=MNrLOonHXuLb7VNwgoxo8bzDbsk%3D&response-content-disposition=inline%3B%20filename%3D%22NELAPressReleaseIntroductionofAFA201504292015Final%2Epdf%22%3B%20filename%2A%3DUTF-8%27%27NELAPressReleaseIntroductionofAFA201504292015Final%252Epdf

x x x."

Private Prisons and the Criminal Justice System: Past, Present and Future

See - Private Prisons and the Criminal Justice System: Past, Present and Future

"x x x.

Private Prisons and the Criminal Justice System: Past, Present and Future
Juliet M. Hurley, MBA, MSF, MAC
University of Phoenix
CJA313
Christopher Eberle
December 9, 2006

Private Prisons and the Criminal Justice System

Privately run prisons are not a novelty but have existed before the 20th century. In the beginning of the 20th century, though, private prisons were banned (Corrections, n.d.). Privatization of prisons had a wave of popularity in the second half of the 19th century. During this hay-day, greedy legislatures were awarding entrepreneurs contracts to manage and operate several prisons. In the mid-1980s, privatizing prisons had another wave of emphasis. Factors such as increasing costs of running a prison, free market ideologies, and the increase of prison population, the option of awarding contract to private firms became a viable option. Managing a prison is not the only service that private firms have contributed to privatizing prisons. Contractors building the prisons are currently outsourced as well as security and managing day-to-day operations (Garcia, J., et. all, 2006). The largest factor in the private prison boom was lack of funding. Voters started saying “no” to new bond issuance to create more prisons. This forced states to turn to private investments to fund prisons. By 2000 10% of prison were privatized, mainly run by Cornell Corrections, Inc., Wackenhut, and CCA. (Corrections, n.d.).

Currently the topic of privatizing prisons is controversial. Some argue for privatizing prisons stating that the quality of life for prisoners will increase; other state that the quality of life will decrease thinking that companies will cut costs and provide lower quality items, such as food and clothing. Another argument for private prisons is that it can create stiffer criminal laws. Politicians are persuaded by companies that provide prison services, such as Wackenhut. Wackenhut and other firms that provide private prison service have contributed money to those politicians who are for the death penalty. However, proponents argue that the influence of private firms could distort the purpose of having laws to prevent and punish crime into that of making a profit to keep crime (Garcia, J., et all, 2006). Between 1960 and 1970, stiffer laws that created harsher penalties and made new acts crimes caused a boom in prisoner growth. The new influx of prisoners created overcrowding, and the politicians who promised to build more prisons could not because the funds were not available (Corrections, n.d.). One of the largest problems is overcrowding. According to the John Howard Society of Alberta (2006, introduction), “26.4% of inmates stated that they were currently sharing a cell with another inmate. Furthermore, 12% of those inmates sharing a single cell felt threatened by their cell-mate.”

Privatization of prisons is new, and there is not enough data to confirm if they are more successful than government run facilities (Garcia, J., et all, 2006). I predict that the trend will be more privatizing of prisons, citing cost savings and efficiencies. Private firms that have run prisons will get reputations, and if good then it can be more persuasive to promote its service to different counties and states. I think studies should be conducted to determine the effects of privatizing prisons so that the safety of the public is ensured. In Canada, a study was conducted in which two prisons were created for the purpose of comparing public vs. privately run prisons. Despite the fact that the private firm saved the Liberal government over $23 million and there was a chance of an additional $11 million in savings, the Canadian government decided that it prefers publicly run facilities (Goggins, K., 2006). If the American government were to also conduct a study, I would recommend a comprehensive study that analyzes more than the operations of private versus public prisons. The decision by the Canadian government was based upon its concern with prisoner treatment, not public safety (Goggins, K., 2006). Therefore, I do not agree with the results. A study needs to combine the study of the surrounding area’s crime to make a solid determination of the effects of private prison management. What if in Canada where the study was conducted the local crime rate increased 35%? Technology such as GIS could be used to determine the effects on public safety. Law enforcement could also share its GIS information or make it searchable by other law enforcement so that crime trends extending beyond local limits can be analyzed.

To address the fear of loss of quality, safeguards could be put in place. For example, the government could set specific guidelines as to what has to be provided to prisoners. Quality checks by independent firms could verify if the managing private firm is keeping in line with standards. Another step that could be taken to ensure quality is to mandate that every 5 years the prison has to find a new firm to manage the prison. That would allow economic market forces to create competition to keep quality high in the prisons.

Some ideas to help with the overcrowding issue and profit incentive include changing the structure of prisons and finding ways to reduce crime. To help prevent private firms from focusing on keeping crime vibrant so that it can continue to be a viable business could have a contingency clause in its contract. For example, the private firm in addition to managing the prison has to develop a plan to rehabilitate felons. Statistics such as frequency of second and third offenses of the same or similar crime could be used to determine if the rehabilitation plan was successful or failed. The private firm would also have to develop plans to educate the community to help deter crime. Geographic Information Systems (GIS) technology could be used to survey trends to determine if crime increases or decreases after an education session was implemented.
In reference to structure, a Canadian prison in 1992 was renovated based on empirical studies. The medium security facility installed carpet and acoustic tiles to help lessen the irritating noises of radios, TVs, talking, and walking down the halls. Cushioned chairs and wall decorations were also used to deafen the noise, but the bonus was to encourage positive social interaction between the prisoners.

Another change included letting prisoners lock and unlock his/her private rooms in order to give the prisoner perceived increase control over his/her life (JHSA, 1996).

ReferencesCorrections. (n.d.). Prison Privatization. Retrieved December 9, 2006 from:
http://www.correctionsproject.com/corrections/pris_priv.htm
Garcia, J., Hurley, J. and Simpson, J. (2006, November 11). Private Prisons: Privatizing
Corrections. Unpublished.
Goggins, K. (2006, May 3). It’s a new world out there. Retrieved December 9, 2006 from:
HYPERLINK "http://www.capp.50megs.com/recentnews315.html" http://www.capp.50megs.com/recentnews315.html
John Howard Society of Alberta (JHSA). (2006). Prison Overcrowding. Retrieved December
9, 2006 from http://www.johnhoward.ab.ca/PUB/C42.htm
x x x."

Monday, December 7, 2015

Saturday, December 5, 2015

Wednesday, November 18, 2015

SECOND DIVISION, G.R. No. 191336, January 25, 2012, CRISANTA ALCARAZ MIGUEL, PETITIONER, VS. JERRY D. MONTANEZ, RESPONDENT. (The Lawyer's Post).

Because the respondent failed to comply with the terms of theKasunduang Pag-aayos, said agreement is deemed rescinded pursuant to Article 2041 of the New Civil Code and the petitioner can insist on his original demand. Perforce, the complaint for collection of sum of money is the proper remedy.

This Court agrees with the petitioner.

A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise.

If one of the parties fails or refuses to abide by the compromise, the other party may either enforce the compromise or regard it as rescinded and insist upon his original demand.

In the case of Leonor v. Sycip,[7] the Supreme Court (SC) had the occasion to explain this provision of law. It ruled that Article 2041 does not require an action for rescission, and the aggrieved party, by the breach of compromise agreement, may just consider it already rescinded, to wit:

Considering that the Kasunduang Pag-aayos is deemed rescinded by the non-compliance of the respondent of the terms thereof, remanding the case to the trial court for the enforcement of said agreement is clearly unwarranted.

SECOND DIVISION, G.R. No. 191336, January 25, 2012, CRISANTA ALCARAZ MIGUEL, PETITIONER, VS. JERRY D. MONTANEZ, RESPONDENT.    (The Lawyer's Post).