Hidden skeletons

There is something seriously wrong and distasteful in our constitutional system when a junior Supreme Court associate justice vying for the prestigious, well-paid and influential rank of Chief Justice begins to use and exploit the mass media in support of his bid to counteract strong public opinion against his pending appointment by his former political boss and presidential benefactor, Pres. Gloria Arroyo, in the process, exposing to the Filipino public the scandalous secrets, cunning art of horse-trading, coercive and corrupt power play, and other stinking hidden skeletons and cancers inside the disgraced halls and chambers of the Supreme Court.

This is the case of Justice Renato Corona, ex-chief of staff of Pres. Gloria Arroyo during the stint of the latter in the 1990s as a headline-hugging pro-globalization and pro-privatization senator.

Read below a recent news item on the matter.

Read also an entry of mine last month in this blog entitled “Midnight Appointments to the Judiciary”.


Corona hits charge of unethical conduct
BY EVANGELINE DE VERA
http://www.malaya.com.ph


A COMPLAINT for impropriety filed by a losing litigant in a "tele-sabong" or online cockfight betting against a Supreme Court justice has showcased a masked animosity between two rivals for the position of chief justice.

Associate Justice Renato Corona yesterday branded as "vicious and malicious lies" the allegations in the complaint filed against him before the Judicial and Bar Council where he is one of the nominees for the position of chief justice.

The JBC is expected to start publishing the names of eight nominees for the position of chief justice this week with the completion of its review on the candidates.

The complaint against Corona was filed before the JBC by lawyer Fernando Campos who accused Corona of accepting airline tickets to Las Vegas on May 3, 2009 to watch the Manny Pacquiao-Ricky Hatton fight. The complaint did not say who gave the tickets.

Campos is chairman of the Inter-Petal Recreational Corp (IPRC), a company whose clientele includes cockfighting aficionados abroad. He filed a petition for certiorari against Pagcor and Philweb Corp. in connection with the operation of an online cockfight betting.

In his letter-reply to the JBC, Corona said there was nothing irregular in his outright dismissal of the IPRC petition.

"The IPRC/Campos petition was hobbled by various procedural infirmities. Indeed, the petition was patently and hopelessly defective on its face, there was no way the Court could have waived such serious violations of the Rules of Court when it issued the April 20, 2009 resolution dismissing it," said Corona.

Corona further said the decision in that case was reached in consultation with members of the Court’s First Division, including its working chairman, Associate Justice Antonio Carpio.

Other members of the First Division are Chief Justice Reynato Puno, Associate Justices Teresita Leonardo-de Castro, Lucas Bersamin, Corona and Carpio.

Corona labeled as "curious" the "unusual effort" of Campos to dissociate Carpio from the April 20, 2009 and July 8, 2009 resolution when the latter agreed with all the other members of the First Division in finding lack of merit to the petition of IPRC, and he also concurred with the July 8, 2009 resolution denying with finality the motion for reconsideration.


"It is highly suspicious that Campos lays all the blame and heaps all sorts of slanderous insinuations solely on me while, at the same time, clearing another member of the First Division who also participated in the dismissal of the petition," he said.

"Why the special interest in pinning me down as ‘sole author’ of the assailed resolution while readily absolving another member of the First Division who participated in the dismissal (of the petition)? Who breached the rule of confidentiality and colluded with Campos in filing this complaint against me? Was Campos’ ‘reliable source’ a member of the First Division?" Corona added.

In defending himself, Corona further told the JBC that it was Campos himself who actively tried to pressure him into deciding in his favor when he asked different people to intercede on his behalf, among them retired Justices Angelina Sandoval-Gutierrez, Santiago Kapunan and Leonardo Quisumbing.

Corona also belied Campos’ insinuation that Philweb financed his trip to the US in May 2009.

He said that the month of May is traditionally the SC’s summer recess and in his years in the SC since 2002, he and his wife have always taken that opportunity to visit their daughter and her family in the United States, with or without a Pacquiao fight.

He also said he has always paid for his trips. He annexed a copy of his receipt for the May 2009 trip.

Based on records of the IPRC case, Pagcor stepped in on IPRC’s tax and franchise papers before the Cavite city government for the operation of the "tele-sabong," claiming that it had jurisdiction over the grant of franchise to on-line gaming firms in the country.

The legal suit resulted in multi-million losses when investors started backing out of IPRC.

Later, Pagcor entered into a deal with PhilWeb, a gaming firm chaired by former Marcos trade minister Roberto Ongpin.

Supreme Court spokesman Jose Midas Marquez said the publication of the JBC list will run for two weeks in newspapers of national circulation.

Following the publication of the names of the aspirants, the JBC will accept comments from the public. Based on these comments, it will decide on whether to hold public interviews on the aspirants.

The JBC officially closed the nomination on February 4, with eight applicants.
Those who submitted applications for or were endorsed to the post were Associate Justices Renato Corona, Arturo Brion and Teresita Leonardo De-Castro; Edilberto Sandoval, Sandiganbayan acting presiding justice; Victor Fernandez, deputy Ombudsman for Luzon; Ombudsman Special Prosecutor Dennis Villa-Ignacio; and former Malabon judge Florentino Floro Jr.

Floro has been excluded from the list owing to his dismissal from the bench.
On Villa-Ignacio, Marquez said the JBC has directed its ex-officio secretariat to determine whether Villa-Ignacio has pending criminal cases and their status.

See:
http://www.malaya.com.ph/02092010/news2.html

Justice system and Congress

In the United States, as defined by law scholars, the legislature is included in the theoretical framework called “the pillars of the justice system”.

Rightly so. The ideal legislature competently and independently studies and adopts policies and laws that affect the very future of a nation, especially its justice system.

In the Philippines, as defined and practiced by the Philippine Judiciary, the five (5) pillars of the justice system are limited only to “law enforcement, prosecution, judiciary, penology, and community”. The legislature is excluded.

Rightly so. The Philippine legislature is a disgrace to the republic. In fact, it is the very cause of its national decay and suicide.

Its media and headline-hugging legislators are better known for paid absenteeism, entrenched corruption, genetic laziness, endemic incompetence, immoral junkets, and contemptible entertainment circuses on the plenary floor.

Look at the elitist, selfish, greedy, incompetent, lazy, corrupt and PR image-conscious thieves, pirates and goons disguised as congresspersons and senators who constitute the Philippine Congress.

Look at the measly number and poor quality of the laws of national significance that they have adopted these past congresses.

Look at the billions of tax money that Congress, in conspiracy with the Executive, have conveniently and secretly allocated for their abhorrent pork barrels, wasteful junket foreign trips, immorally huge salaries and allowances, and other disgustingly fat perks.

Listen to the vulgar language, ignorant debates and entertainment circuses that regularly take place in the so-called august and honorable halls of Congress.

Look at the wealthy lobby groups and vested interests that these corrupt legislators protect and serve.

And you have a recipe for a national-scale rebellion and civil war by hungry, discontented, and hopeless Filipinos.

I gathered below some news items and articles on the poor performance and obnoxious quality of the 14th Congress.

Read them. Form your own opinion.

To my compatriots, I ask: Do you think we can intelligently entrust the fate and future of our Constitution, our Republic, and the 90 million suffering Filipinos to these criminals, sycophants, thieves, pirates, and freeloaders?

May God have mercy on the Republic of the Philippines.



Editorial
Stranded
Philippine Daily Inquirer
First Posted 01:19:00 02/09/2010


Congress adjourned last week, bypassing more than a dozen important measures and committee reports. The Senate adjourned without doing anything on its last session day for lack of quorum. The House of Representatives adjourned also without acting on pending measures for lack of time and quorum.

Ostensibly, the minority boycotted the last session day of the Senate to prevent the consideration of a resolution which would censure Sen. Manuel Villar, Nacionalista Party presidential candidate, on the C-5 road controversy. Sen. Miriam Defensor-Santiago said she joined the minority boycott to block alleged attempts to pass two controversial bills. One seeks to reorganize the Philippine Amusement and Gaming Corp. and give its board chair security of tenure. It would have the effect of preventing the new president from appointing a new Pagcor head. The other measure would reorganize the National Telecommunications Commission. Santiago said the NTC bill would have far-reaching consequences because the agency has control over the importation of signal jammers that could disrupt the operation of poll automation machines, cell phones, radios and other telecommunication devices and tools.

Two committee reports that were bypassed were the Senate committee of the whole’s report on the C-5 road controversy and the Senate blue ribbon committee’s report on the controversial $329-million NBN-ZTE deal which says President Gloria Macapagal-Arroyo is “answerable” for the “stinking” deal.

Other measures bypassed were the proposed Freedom of Information Act, Reproductive Health Bill, a New Central Bank Act, LPG Regulation and Safety Act, Cybercrime Prevention Act, Early Voting Bill, Proposed Philippine Tax Academy and an Act Defining and Penalizing the Crime of Enforced or Involuntary Disappearances and the Right of Reply Bill.

It is unfortunate that the Freedom of Information Act was not passed because the final measure was the product of months of hearings, deliberations and debates in the Senate and House and in the bicameral conference committee. It would have given flesh to the spirit of the constitutional provision that says that the people have the right of access to information “subject to such limitations as may be defined by law.” If the measure is not passed before the 14th Congress finally adjourns in June, it will have to be re-filed and will have to go again through the congressional mill. But it is good that the Right of Reply Bill which would have restricted freedom of the press was not passed.

The bypassed Reproductive Health Bill would have allowed the promotion of both natural and artificial birth control methods in government health centers. It is a very controversial measure, and apparently many legislators did not want to touch it because they did not want to antagonize the Catholic Church at a time when they are running for reelection.

The Central Bank bill, the Cybercrime bill, the LPG industry regulation bill, the early voting bill, the proposed Philippine Tax Academy and the bill on the crime of involuntary disappearance are all well-intentioned measures. But they were not passed largely because of lack of quorum in both the Senate and the House, and the lack of quorum was caused principally by partisan maneuverings.

The Senate and the House may yet have an opportunity to redeem themselves and pass the beneficial and uncontroversial measures during the session from May 31 to June 4 when the canvassing of the presidential election returns start.

The majority and opposition groups in the Senate could come to a gentleman’s agreement that they will not consider the resolution on the C-5 road controversy until the last one day or two days of the session, after they shall have acted on the important pending measures. The leadership of the House, for their part, could try their best to muster a quorum so that the chamber could pass pending measures and ratify some bicameral committee reports.

Members of Congress are elected by their constituents to pass laws, not to get embroiled forever in partisan wrangling and maneuvers. It’s time they really earned the millions that the suffering taxpayers are paying them in salaries, allowances, pork barrel and other perks. It’s time they did some real work and passed the pending important measures.

See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20100209-252089/Stranded



House pressed to ratify information bill in May
By Leila Salaverria
Philippine Daily Inquirer
First Posted 14:06:00 02/06/2010

Filed Under: Congress, Legislation

MANILA, Philippines – Wary about losing the slim chance for ratification of the freedom of information bill, supporters of the measure urged Speaker Prospero Nograles Saturday to put the matter on top of the agenda when Congress resumes its session in May.

Nepomuceno Malaluan of the "Right to Know, Right Now!" campaign said Nograles should put his money where his mouth was and essentially guarantee the bill's ratification. Nograles, in earlier statements, has supported the bill.

Congress will resume session on May 31 up to June 2, when it is expected to canvass the votes for president and vice president, and tackle pending legislative measures. The lack of quorum, a perennial concern in the House, may hamper the proceedings, however.

“We have reposed such trust on the speaker to let this through, but because it did not happen, we hope Speaker Nograles can convince us that the trust reposed on him will be there on May 31. We ask Speaker Nograles to expressly commit that we will put the ratification of the FOI ahead of any business,” Malaluan said at the Kapihan sa Sulo forum.

But Nograles did not commit himself, and pointed out that other pending bills were also considered equally important by their proponents.

“It's on the agenda but all in the agenda are equally important to certain sectors. [It] may not be important to others,” he said.

He also said he could not guarantee a quorum.

See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20100206-251619/House-pressed-to-ratify-information-bill-in-May


Freedom of info bill in dying gasp
By Leila Salaverria
Philippine Daily Inquirer
First Posted 07:47:00 02/05/2010


MANILA, Philippines—The freedom of information bill is on its last gasps after the House of Representatives failed to ratify it on its last session day on Wednesday for lack of a quorum.

Quezon Rep. Lorenzo Tañada III, one of the bill’s proponents, suspects an attempt to halt the bill’s ratification after a series of puzzling events, including the disappearance of printed copies of the measure that was supposed to have been distributed to lawmakers.

According to Tañada, there could be a last chance for the bill to pass during the brief 3-day resumption of the congressional sessions on May 31, June 1 and June 2, after Congress finishes the canvassing of the votes for President and Vice President.
But he fears that the lack of a quorum would still be a problem then.

“This [will be] the test of the House leadership, if they’re for the freedom of information bill,” Tañada said.

The Senate has ratified the bill, the farthest that it has gotten in the 23 years that various legislatures have tried to pass a freedom of information act. The bill is 23 years too late, Tañada said.

The bill requires that records of contracts, loans and agreements, as well as government officials’ statements of assets, liabilities and net worth, be available for scrutiny by the public. It also limits the kind of official data that can be kept secret.

According to Tañada, before the bill could be included in the agenda, he had to present a lot of requirements, such as providing the original copy of the bill and several other copies, which were not asked of him before.

Thursday, he learned that about 50 copies made of the bill for distribution to lawmakers had gone missing from the session hall. He had to ask that copies be reprinted.

The lack of a quorum also blocked the ratification of the proposed immigration act and the oath-taking of two lawmakers, the Liberal Party’s Celestino Martinez III as representative of Cebu’s 4th district, and Dominga Espina of the Coco Fed party-list group.

See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20100205-251424/Freedom-of-info-bill-in-dying-gasp


Political Tidbits
Biggest spenders and ‘kuripot’ in the Senate
By Belinda Olivares-Cunanan
Philippine Daily Inquirer
First Posted 01:47:00 02/09/2010


Senators Bong Revilla and Jinggoy Estrada are No. 1 and 2 in the senatorial poll surveys. They are also among the biggest spenders of public money, as shown in the Commission on Audit report recently published in the Philippine Star, alongside Sen. Kiko Pangilinan. All three senators spent over P17 million each for their office expenses. The exception among show-biz people is Sen. Lito Lapid, who spent P15.3 million and was seventh thriftiest among the 23 senators.

Among the senators aspiring for the presidency, Sen. Nonoy Aquino spent P16.7 million compared to Sen. Manny Villar’s P15.7 million. Sen. Richard Gordon was the most frugal, spending P14.6 million, which put him at No. 4 in the overall thrifty list.

The shocker is Sen. Antonio Trillanes IV, who does not and cannot move around because he is in a military stockade. He spent a whopping P17.2 million or P47,000 a day! Ironically, Trillanes receives that kind of money from the government he sought to topple.

But by far the biggest spender in the Senate is his fellow senator with a military background and who once also tried to topple the Aquino government, Gregorio Honasan, who ended up with P17.9 million in expenses.

* * *

The thriftiest among them all is Sen. Joker Arroyo who spent only P12.6 million and retained for the 18th straight year the title of “Scrooge of Congress” for being so kuripot since the time he entered the House. Arroyo is followed in the honor roll by Sen. Aquilino Pimentel Jr., with expenses at P14.3 million, and Sen. Edgardo Angara, with P14.5 million.

* * *

See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100209-252094/Biggest-spenders-and-kuripot-in-the-Senate


Analysis
Villar above rules of Senate on disciplinary action
By Amando Doronila
Philippine Daily Inquirer
First Posted 02:56:00 02/08/2010


CHARGES against four members of Parliament in Britain for falsely claiming parliamentary expenses are rocking the foundations of the United Kingdom’s political system.

The political storm over the “dishonest claims” of the MPs involved three from the ruling Labor Party and one from the Tory Party.

The storm erupted at the same time that the Philippine Senate (an institution that has great pretensions as a bulwark of democracy) is split over a report of its top committee finding that one of its senior members, Manuel Villar, is guilty of unethical conduct in relation to the C-5 road extension project.

The Senate committee of the whole, which includes 22 senators, has recommended the censure of Villar for transactions of his real estate companies associated with the project.

The circumstances surrounding the charges against the four British MPs are different from those surrounding the case against Villar, but these essentially involve ethical issues.

The purpose of this report is to illustrate the contrasting manner by which the British Parliament, the mother of all parliaments, and the Philippine Senate are handling cases involving members who have been investigated for wrongdoing or abuse of parliamentary privilege.

There is public outrage in the Philippines over Villar’s transactions, as there is outrage in Britain over the MP claims of expenses stemming from the discharge of parliamentary duties.

This report is based on accounts of British media, especially BBC News and Financial Times.

On Friday, Director of Public Prosecutions Keir Starmer laid charges of false accounting under Section 17 of the Theft Act of 1968 against MPs Elliot Morley, Jim Devine, David Chaytor, all Labor, and the Tory peer Lord Hanningfield.

Rent, cleaning services

The MPs face a maximum sentence of seven years in prison if convicted. Morley faces two charges over 30,000 pounds of mortgage-interest claims; Chaytor is accused of dishonestly claiming 1,950 pounds for IT services and 18,000 pounds in rent; Devine is accused of claiming 3,240 pounds for cleaning services and 5,500 pounds for stationery; and Lord Hanningfield faces six charges of dishonestly submitting expense claims.

Lord Hanningfield denies the charge, saying he will “vigorously” defend himself in court. However, he immediately stood down from front-bench duties in the House of Lords, as shadow business spokesperson “to avoid embarrassment or distraction for [his] party.”

The Conservatives suspended him from the parliamentary party. He has also quit as leader of the Essex County Council.

The Labor Party was no less severe on its MPs. All three Labor MPs denied the charges and said they would defend themselves “vigorously.” Labor Prime Minister Gordon Brown was outraged, saying he was “very angry about what has happened.”
Serious criminal allegations

He said: “We took steps some months ago to remove the right of these people to stand as candidates for the Labor Party. These are very serious criminal allegations. All criminal allegations have got to be investigated. It’s a matter now for the courts.”
The four men will not be arrested but will be sent a summons to turn up on March 11 at the City of Westminster magistrates court.

“We have concluded that there is sufficient evidence to bring criminal charges and that it is in the public interest to charge the individuals concerned,” the prosecutor said.

The MPs invoked their privilege of parliamentary immunity, saying they maintain that the issue should be resolved by the parliamentary commissioner “who is there to enforce any breach of the rules.”

Their lawyers are expected to claim their expenses are covered by parliamentary privilege, which traditionally protects them from being sued for what they say in the House of Commons.

The prosecutor addressed the issue of parliamentary privilege when he announced the decision to press charges.

“We have considered that question and concluded that applicability and extent of any parliamentary privilege claimed should be tested in court,” he said.
Impunity

A Labor MP, Paul Flynn, appealed to his three colleagues to ignore the lawyers’ argument about parliamentary privilege.

Flynn said it was never intended to give politicians “immunity” from criminal charges and if used it would “deepen and prolong” the expenses scandal which has gripped Westminster.

“There may be a technical argument about this, but it is one that will be treated with contempt by the majority of the people of this country,” he told BBC.
“Already, they feel cynicism about the politicians, saying there’s one for the MPs and one for the rest of us,” he added.

While Villar’s case does not involve dishonest claims of expenses, the Senate report also involves an ethical issue, based on a Senate investigation of the charges brought by Sen. Jamby Madrigal.

The criminal charges against the MPs stemmed from investigations for nine months of their claims by the parliamentary oversight bodies.
Defiant

Villar’s real estate transactions were also investigated by his peers, as the claims of the expenses of the MPs were investigated and acted upon by their peers.
One difference is that Villar does not face criminal charges over his transactions. Villar has taken a defiant stand against peers who find him guilty of unethical conduct.

Villar boycotted the hearings on the case and refused to face colleagues critical of him to defend himself.

He said he was not expecting a fair deal from the majority senators who signed the report because they were biased against him.

The issue of parliamentary privilege has not been raised in the C-5 case.

Allies of Villar, a presidential candidate, have argued that he, as a senator, cannot be forced to appear at the committee hearings and to accept the report’s decision seeking his censure.

Preview of Villar’s attitude

His defiance gives a preview of an attitude that Villar is above censure and accountability for his actions connected to his companies’ activities to push the C-5 project.

The project is covered by appropriations in which he intervened during its budgetary hearings as member of Congress.

There’s no way that he will step down or suspend his campaign for the presidency while a boycott of his allies is preventing the Senate from voting to censure him.
He remains untouchable in this regard. In stonewalling on the committee report, Villar is a law unto himself and above the rules of the Senate on disciplinary action for breach of the rules.

There are no party sanctions to bar him from election activity until he is cleared by the Senate, simply because he is president of the Nacionalista Party.

See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100208-251897/Villar-above-rules-of-Senate-on-disciplinary-action



Vulgar language in Senate
Philippine Daily Inquirer
First Posted 04:52:00 02/09/2010


The heated exchange on the Senate floor, where supposedly distinguished senators used uncouth words should not be tolerated by any decent, peace-loving Filipino. Nay, it must be denounced in the strongest terms.

The vulgar language spread like wildfire as it was reported in mass media. An intemperate phrase from the mouth of “honorable” senators became a dirty public joke, an affront to womanhood. How insensible our senators could be that they should stoop so low.

Is this the kind of legacy they are handing down to our youth? How would these legislators feel in their retirement when they look back to these public statements?
It is indeed very unchristian to trade barbed words in a debate. Debate they must, but in a dignified way, using decent language that does not cloud reasons with sarcasm, insult and innuendos; following the formalities and decorum befitting an august chamber. Thus, win or lose their actions would be worth emulating by the young.

Hurt and ashamed of what we saw, heard and read, we offer nonetheless our prayers for our legislators, that the Holy Spirit may always guide them during congressional deliberations, so that they will avoid the use of gutter language.

—FR. FIDEL G. FABILE
(in behalf of associate pastors and the parish council),
Mary Immaculate Parish, Las Piñas City


See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20100209-252116/Vulgar-language-in-Senate



Note: Fr. Fidel Fabile and I used to serve together in the development foundation of his parish church, of which I was the pro bono legal counsel from 1987 to 2005. He is the incumbent parish priest of Mary Immaculate Parish, Moonwalk Village, Las Pinas City, Philippines. I left my said pro bono parochial positions in the parish due to serious policy disagreements with its priests and lay leaders on the proper management and protection of the funds and assets of the parish foundation and its projects and on the observance of transparency and accountability on the part of the priests and financial personnel in relation to the funds and assets of the parish and its development foundation.

Medical tort

In the very fresh resolution of the Philippine Supreme Court in a medical tort/malpractice case entitled PROFESSIONAL SERVICES, INC. vs. Court of Appeals, et.al., En Banc, GR No. 126297, February 2, 2010; NATIVIDAD and ENRIQUE AGANA vs. CA, et. al., En Banc, GR NO. 126467, February 2, 2010; MIGUEL AMPIL vs. Natividad and Enrique Roque, En Banc, G.R. No. 127590, February 2, 2010, the Court, while affirming the existing doctrine that hospitals as a general rule are not civilly liable for the tortuous acts of their medical consultants in view of the absence of an employer-employee relationship between, nonetheless made the following pro hac vice doctrinal pronouncements on the liability of the respondent hospital based on the doctrines of “ostensible agency” and “corporate negligence”, thus:

1. After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not under the principle of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its failure to perform its duties as a hospital.

2. While in theory a hospital as a juridical entity cannot practice medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of its business of facilitating medical and surgical treatment. Within that reality, three legal relationships crisscross: (1) between the hospital and the doctor practicing within its premises; (2) between the hospital and the patient being treated or examined within its premises and (3) between the patient and the doctor. The exact nature of each relationship determines the basis and extent of the liability of the hospital for the negligence of the doctor.

3. Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code or the principle of respondeat superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 of the Civil Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation.

4. This Court still employs the “control test” to determine the existence of an employer-employee relationship between hospital and doctor. In Calamba Medical Center, Inc. v. National Labor Relations Commission, et al. it held:

Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls both the means and the details of the process by which the physician is to accomplish his task.

xx xx xx

As priorly stated, private respondents maintained specific work-schedules, as determined by petitioner through its medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and which were strictly to be observed under pain of administrative sanctions.

That petitioner exercised control over respondents gains light from the undisputed fact that in the emergency room, the operating room, or any department or ward for that matter, respondents' work is monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent of petitioner or its medical director, no operations can be undertaken in those areas. For control test to apply, it is not essential for the employer to actually supervise the performance of duties of the employee, it being enough that it has the right to wield the power. (emphasis supplied)


5. Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance, the concurrent finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor in testing the employer-employee relationship between doctor and hospital under which the hospital could be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by preponderance of evidence. Here, there was insufficient evidence that PSI exercised the power of control or wielded such power over the means and the details of the specific process by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat superior.

6. There is, however, ample evidence that the hospital (PSI) held out to the patient (Natividad) that the doctor (Dr. Ampil) was its agent. Present are the two factors that determine apparent authority: first, the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the patient’s reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence.


7. Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced by the impression that Dr. Ampil was a staff member of Medical City General Hospital, and that said hospital was well known and prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical City.

8. The Court cannot speculate on what could have been behind the Aganas’ decision but would rather adhere strictly to the fact that, under the circumstances at that time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised his wife Natividad to go to the Medical City General Hospital to be examined by said doctor, and the hospital acted in a way that fortified Enrique's belief. This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence of Dr. Ampil as its ostensible agent.

9. PSI reiterated its admission when it stated that had Natividad Agana “informed the hospital of her discomfort and pain, the hospital would have been obliged to act on it.” The significance of the foregoing statements is critical.

First, they constitute judicial admission by PSI that while it had no power to control the means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its patients.

Second, it is a judicial admission that, by virtue of the nature of its business as well as its prominence in the hospital industry, it assumed a duty to “tread on” the “captain of the ship” role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities.

Third, by such admission, PSI defined the standards of its corporate conduct under the circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence.

And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration that the concept of corporate responsibility was not yet in existence at the time Natividad underwent treatment; and that if it had any corporate responsibility, the same was limited to reporting the missing gauzes and did not include “taking an active step in fixing the negligence committed.” An admission made in the pleading cannot be controverted by the party making such admission and is conclusive as to him, and all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether or not objection is interposed by a party.

10. PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing Natividad about the two missing gauzes. Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but Dr. Ampil assured them that he would personally notify the patient about it. Furthermore, PSI claimed that there was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of complications. She did not even inform the hospital about her discomfort. The excuses proffered by PSI are totally unacceptable.

11. To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. The purpose of such review would have been to pinpoint when, how and by whom two surgical gauzes were mislaid so that necessary remedial measures could be taken to avert any jeopardy to Natividad’s recovery. Certainly, PSI could not have expected that purpose to be achieved by merely hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps. By its own standard of corporate conduct, PSI's duty to initiate the review was non-delegable.

12. While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, PSI imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose of the first would have been to apprise Natividad of what transpired during her surgery, while the purpose of the second would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy, so as to prevent a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad. That Dr. Ampil negligently failed to notify Natividad did not release PSI from its self-imposed separate responsibility.

13. Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its premises, PSI had the duty to take notice of medical records prepared by its own staff and submitted to its custody, especially when these bear earmarks of a surgery gone awry. Thus, the record taken during the operation of Natividad which reported a gauze count discrepancy should have given PSI sufficient reason to initiate a review. It should not have waited for Natividad to complain.

14. As it happened, PSI took no heed of the record of operation and consequently did not initiate a review of what transpired during Natividad’s operation. Rather, it shirked its responsibility and passed it on to others – to Dr. Ampil whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful step. By its inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence.

15. It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical negligence attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant practicing within its premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil.

16. All this notwithstanding, we make it clear that PSI’s hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances. The ruling is unique to this case, for the liability of PSI arose from an implied agency with Dr. Ampil and an admitted corporate duty to Natividad.


The Court thus made the following orders, to wit:

“WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention are NOTED.

Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the total amount of P15 million, subject to 12% p.a. interest from the finality of this resolution to full satisfaction.

No further pleadings by any party shall be entertained in this case.

Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of this resolution.

SO ORDERED.”



READ BELOW THE SALIENT PARTS OF THE RELATED NEWS AND PREVIOUS DECISIONS AND RESOLUTIONS OF THE SUPREME COURT.


SC rules hospital also liable, must pay P15M for surgeon’s error
By Dona Pazzibugan
Philippine Daily Inquirer
First Posted 03:20:00 02/05/2010


MANILA, Philippines—In a major decision on medical malpractice, the Supreme Court has found a hospital equally liable for the negligence of one of its doctor-consultants who left two pieces of gauze inside his patient’s body during surgery in 1984.

Affirming its earlier rulings, the high court ordered the owners of The Medical City in Pasig City to pay the heirs of Natividad Agana P15 million.

But the court said this should not be considered a precedent-setting case for other hospitals being sued for negligence of doctors.

Nina Posadas, Medical City manager for corporate communications, said the hospital could not comment on the issue without reviewing the Supreme Court decision.

Inaction

In a ruling penned by Associate Justice Renato Corona, the court en banc said “by its inaction the [Professional Services Inc.] failed its own standard of hospital care. It committed corporate negligence.”

From the original P3 million in damages awarded to the victim’s heirs, the high court increased the amount to P15 million subject to a 12 percent annual interest from the finality of the resolution until its full satisfaction.

Records showed that Dr. Miguel Ampil performed surgery on Agana on April 11, 1984, to treat her cancer of the sigmoid (a part of the large intestine).

After being discharged from the hospital, Agana complained of pain but was told by Ampil that it was the natural consequence of the surgery.

Months later, Agana’s daughter found a piece of gauze protruding from her mother’s vagina. Ampil supposedly extracted by hand a piece of gauze and assured Agana that the pain would vanish.

Badly infected vagina

However, when the pain intensified Agana sought treatment at the Polymedic General Hospital where a doctor found another gauze which had already badly infected her vaginal vault.

Another surgery

She underwent another surgery and then filed a complaint against Ampil and the hospital for negligence and for later concealing their acts of negligence.

Agana died in 1986 while the civil suit was still pending before the lower courts. The Supreme Court decision did not say whether her death was related to the flawed surgery.

On Jan. 31, 2007, the Supreme Court’s first division affirmed the lower courts’ rulings that the doctor’s negligence was the proximate cause of her injury because he closed the incision even if the attending nurses had already informed him that two pieces of gauze were still missing.
As the owner and operator of Medical City, Professional Services Inc. (PSI) was also held liable since it supposedly did not investigate the case of the missing gauze.

Other hospitals intervene

The ruling became final on Feb. 11, 2008, but Manila Medical Services Inc., Asian Hospital and the Private Hospital Association of the Philippines moved to intervene, saying the decision “will jeopardize the financial viability of private hospitals” and jack up the cost of health care.

PSI also appealed that the case be referred to the court en banc, reiterating that it did not have an employment relationship with Ampil who it said was only a consultant.

The case was elevated to the court en banc.

Corporate negligence

In its decision dated Feb. 2, 2010, the Supreme Court said the hospital was also liable “under the principle of ostensible agency for the negligence of Doctor Ampil and, pro hac vice, under the principle of corporate negligence for its failure to perform its duties as a hospital.”

The high court took as a judicial admission PSI’s statement that had the patient “informed the hospital of her discomfort and pain, the hospital would have been obligated to act on it.”

“While it had no power to control the means or methods by which Doctor Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may have irregularly transpired within its walls,” it said.

Captain of the ship

The tribunal added: “By virtue of the nature of its business as well as its prominence in the hospital industry, it (PSI) assumed a duty to tread on the ‘captain-of-the-ship’ role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities.”

In increasing the award from P3 million to P15 million, the Supreme Court took note of the family’s suffering.

Hemmed and hawed

“Such wretchedness could have been avoided had PSI simply done what was logical: Heed the report of a gauze-count discrepancy, initiate a review of what went wrong and take corrective measures to ensure the safety of Agana. Rather, for 26 years, PSI hemmed and hawed at every turn, disowning any such responsibility to its patient,” it said.

But the high court stressed that the case was not intended as a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctor-consultants.

“All this notwithstanding, we make it clear that PSI’s hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice,” the court said.

It added that the ruling was “unique to the case” because “the liability of PSI arose from an implied agency with Doctor Ampil and an admitted corporate duty to the patient Natividad Agana.” With a report from Beverly T. Natividad


See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100205-251371/SC-rules-hospital-also-liable-must-pay-P15M-for-surgeons-error


Read below the 2008 press release of the Supreme Court on the same case:


Hospital, doctor liable for medical negligence

THE SUPREME COURT has upheld the solidary liability of the owners of the Medical City General Hospital and Dr. Miguel Ampil, a member of its surgical staff, amounting to over Php3 million for medical negligence for leaving behind two pieces of gauze inside a cancer patient’s body during surgery in 1984.

In a decision penned by Justice Angelina Sandoval-Gutierrez, the Court’s First Division affirmed the Court of Appeals’ September 6, 1996 decision affirming with modification the March 17, 1993 decision of the Quezon City Regional Trial Court, Branch 96 and nullifying the RTC’s order dated September 21, 1993. The Court held both the Professional Services, Inc. (PSI), owner of the Medical City Hospital, and Dr. Ampil liable for the injury sustained by Natividad Agana.

The Court said Dr. Ampil’s negligence was the proximate cause of Natividad’s injury, which could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing. It found that Dr. Ampil did not inform Natividad about the two missing pieces of gauze. Worse, he even misled her that the pain she experienced after the procedure was the ordinary consequence of her operation. Natividad died in 1986. “To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient…This is a clear case of medical malpractice or more appropriately, medical negligence,” the Court said.

Citing Ramos v. CA, the Court said that PSI was liable since an employer-employee relationship exists between PSI and Dr. Ampil. By accrediting Dr. Ampil and publicly advertising his qualifications, the hospital created the impression that Dr. Ampil was its agent, authorized to perform medical or surgical services for its patients, it added.

(Professional Services, Inc v. Agana and Agana, GR No. 126297; Agana, et al. v. Fuentes, GR No. 126467; Ampil v. Agana and Agana; GR No. 127590; January 31, 2007; Resolution on Motion for Reconsideration, dated February 11, 2008).

See:
http://sc.judiciary.gov.ph/publications/courtnews/2007/02/020707.php


2007 Decision

Professional Services, Inc v. Agana and Agana, GR No. 126297; Agana, et al. v. Fuentes, GR No. 126467; Ampil v. Agana and Agana; GR No. 127590; January 31, 2007

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed through this high trust, however technical, complex and esoteric its character may be, must meet standards of responsibility commensurate with the undertaking to preserve and protect the health, and indeed, the very lives of those placed in the hospital’s keeping.
Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’ Decision dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification the Decision dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from “cancer of the sigmoid.”
On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision.
However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the attending nurses entered these remarks:
“sponge count lacking 2
“announced to surgeon searched (sic) done but to no avail continue for closure.”

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the doctors’ fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish.
Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees, and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full payment; and

6. Costs of suit.

SO ORDERED.


Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 42062.
X x x.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision in Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside Natividad’s body; and that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby AFFIRMED and the instant appeal DISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge dated September 21, 1993, as well as the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent contractor. As such, he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie proofs that the operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery; and (3) the medical intervention of the American doctors who examined Natividad in the United States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the negligence of Dr. Ampil.

I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.


Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of Natividad’s detriment. He argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes left the gauzes in Natividad’s body after performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third, the American doctors were the ones who placed the gauzes in Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not present any evidence to prove that the American doctors were the ones who put or left the gauzes in Natividad’s body. Neither did he submit evidence to rebut the correctness of the record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the ‘sponge count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ and that a ‘search was done but to no avail’ prompting Dr. Ampil to ‘continue for closure’ x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence per se.

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life precludes a surgeon from further searching missing sponges or foreign objects left in the body. But this does not leave him free from any obligation. Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s abdomen, because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time thereafter by advising her of what he had been compelled to do. This is in order that she might seek relief from the effects of the foreign object left in her body as her condition might permit. The ruling in Smith v. Zeagler is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove a sponge he has placed in his patient’s body that should be removed as part of the operation, he thereby leaves his operation uncompleted and creates a new condition which imposes upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient. Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s negligence is the proximate cause of Natividad’s injury could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividad’s vagina established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability


The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left inside Natividad’s body is a prima facie evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means “the thing speaks for itself.” It is the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation. Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to him to establish that he has observed due care and diligence.
From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the “control and management of the thing which caused the injury.”
We find the element of “control and management of the thing which caused the injury” to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing. A “diligent search” was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.
Under the “Captain of the Ship” rule, the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders. As stated before, Dr. Ampil was the lead surgeon. In other words, he was the “Captain of the Ship.” That he discharged such role is evident from his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’ permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering the closure of the incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividad’s body. Clearly, the control and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent or separate ground of liability, being a mere evidentiary rule. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. Here, the negligence was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.


III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to the lowest classes of society, without regard for a patient’s ability to pay. Those who could afford medical treatment were usually treated at home by their doctors. However, the days of house calls and philanthropic health care are over. The modern health care industry continues to distance itself from its charitable past and has experienced a significant conversion from a not-for-profit health care to for-profit hospital businesses. Consequently, significant changes in health law have accompanied the business-related changes in the hospital industry. One important legal change is an increase in hospital liability for medical malpractice. Many courts now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible authority, or agency by estoppel.
In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.

x x x x
The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks even though the former are not engaged in any business or industry.
x x x .

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.


A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and pharmacists, are not “employees” under this article because the manner in which they perform their work is not within the control of the latter (employer). In other words, professionals are considered personally liable for the fault or negligence they commit in the discharge of their duties, and their employer cannot be held liable for such fault or negligence. In the context of the present case, “a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or operation of patients.”
The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physician’s calling preclude him from being classed as an agent or employee of a hospital, whenever he acts in a professional capacity. It has been said that medical practice strictly involves highly developed and specialized knowledge, such that physicians are generally free to exercise their own skill and judgment in rendering medical services sans interference. Hence, when a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in his ministrations to the patient and his actions are of his own responsibility.
The case of Schloendorff v. Society of New York Hospital was then considered an authority for this view. The “Schloendorff doctrine” regards a physician, even if employed by a hospital, as an independent contractor because of the skill he exercises and the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the application of the respondeat superior principle for fault or negligence committed by physicians in the discharge of their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in medical care. Courts came to realize that modern hospitals are increasingly taking active role in supplying and regulating medical care to patients. No longer were a hospital’s functions limited to furnishing room, food, facilities for treatment and operation, and attendants for its patients. Thus, in Bing v. Thunig, the New York Court of Appeals deviated from the Schloendorff doctrine, noting that modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual workers. They charge patients for medical care and treatment, even collecting for such services through legal action, if necessary. The court then concluded that there is no reason to exempt hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of our categorical pronouncement in Ramos v. Court of Appeals that for purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This Court held:
“We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting “consultants,” who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications, generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. x x x.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. ”


But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained acceptance in the determination of a hospital’s liability for negligent acts of health professionals. The present case serves as a perfect platform to test the applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the “holding out” theory, or doctrine of ostensible agency or agency by estoppel, has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists. The concept is essentially one of estoppel and has been explained in this manner:

“The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question.

The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v. Doctor Hospital of Lake Worth, Inc. There, it was explicitly stated that “there does not appear to be any rational basis for excluding the concept of apparent authority from the field of hospital liability.” Thus, in cases where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.


In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion that it “is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence.” Indeed, PSI’s act is tantamount to holding out to the public that Medical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of absence of employer-employee relationship between the hospital and the independent physician whose name and competence are certainly certified to the general public by the hospital’s act of listing him and his specialty in its lobby directory, as in the case herein. The high costs of today’s medical and health care should at least exact on the hospital greater, if not broader, legal responsibility for the conduct of treatment and surgery within its facility by its accredited physician or surgeon, regardless of whether he is independent or employed.”


The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting only through other individuals, such as physicians. If these accredited physicians do their job well, the hospital succeeds in its mission of offering quality medical services and thus profits financially. Logically, where negligence mars the quality of its services, the hospital should not be allowed to escape liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner, operator and manager of Medical City Hospital, “did not perform the necessary supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance of their duties as surgeons.” Premised on the doctrine of corporate negligence, the trial court held that PSI is directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospital’s liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authority. Its formulation proceeds from the judiciary’s acknowledgment that in these modern times, the duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. The modern hospitals have changed structure. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care.

The doctrine has its genesis in Darling v. Charleston Community Hospital. There, the Supreme Court of Illinois held that “the jury could have found a hospital negligent, inter alia, in failing to have a sufficient number of trained nurses attending the patient; failing to require a consultation with or examination by members of the hospital staff; and failing to review the treatment rendered to the patient.” On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence extends to permitting a physician known to be incompetent to practice at the hospital. With the passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe and adequate facilities and equipment; (2) the selection and retention of competent physicians; (3) the overseeing or supervision of all persons who practice medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients. Thus, in Tucson Medical Center, Inc. v. Misevich, it was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it meets the standards of responsibilities for the care of patients. Such duty includes the proper supervision of the members of its medical staff. And in Bost v. Riley, the court concluded that a patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of the trial court are convincing, thus:

x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count nurse. Such failure established PSI’s part in the dark conspiracy of silence and concealment about the gauzes. Ethical considerations, if not also legal, dictated the holding of an immediate inquiry into the events, if not for the benefit of the patient to whom the duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and the healing professions, through their members like defendant surgeons, and their institutions like PSI’s hospital facility, can callously turn their backs on and disregard even a mere probability of mistake or negligence by refusing or failing to investigate a report of such seriousness as the one in Natividad’s case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical City Hospital’s staff, composed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive knowledge of the procedures carried out, particularly the report of the attending nurses that the two pieces of gauze were missing. In Fridena v. Evans, it was held that a corporation is bound by the knowledge acquired by or notice given to its agents or officers within the scope of their authority and in reference to a matter to which their authority extends. This means that the knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts to callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and review medical services being provided within its walls. See Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a medical practitioner because he was an independent contractor within the hospital. The Court of Appeals pointed out that the hospital had created a professional staff whose competence and performance was to be monitored and reviewed by the governing body of the hospital, and the court held that a hospital would be negligent where it had knowledge or reason to believe that a doctor using the facilities was employing a method of treatment or care which fell below the recognized standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent responsibilities regarding the quality of medical care furnished to patients within its walls and it must meet the standards of responsibility commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of the Court of Appeals that a hospital has the duty of supervising the competence of
the doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with its knowledge, aid, and assistance, and that the negligence of the defendants was the proximate cause of the patient’s injuries. We find that such general allegations of negligence, along with the evidence produced at the trial of this case, are sufficient to support the hospital’s liability based on the theory of negligent supervision.”

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized that PSI, apart from a general denial of its responsibility, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under the last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as we have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on him certain obligations. In order to escape liability, he must possess that reasonable degree of learning, skill and experience required by his profession. At the same time, he must apply reasonable care and diligence in the exercise of his skill and the application of his knowledge, and exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.



2008 Resolution on Motion for Reconsideration


Professional Services, Inc v. Agana and Agana, GR No. 126297; Agana, et al. v. Fuentes, GR No. 126467; Ampil v. Agana and Agana; GR No. 127590; February 11, 2008
As the hospital industry changes, so must the laws and jurisprudence governing hospital liability. The immunity from medical malpractice traditionally accorded to hospitals has to be eroded if we are to balance the interest of the patients and hospitals under the present setting.
Before this Court is a motion for reconsideration filed by Professional Services, Inc. (PSI), petitioner in G.R. No. 126297, assailing the Court’s First Division Decision dated January 31, 2007, finding PSI and Dr. Miguel Ampil, petitioner in G.R. No. 127590, jointly and severally liable for medical negligence.

X x x.
X x x.

As earlier mentioned, the First Division, in its assailed Decision, ruled that an employer-employee relationship “in effect” exists between the Medical City and Dr. Ampil. Consequently, both are jointly and severally liable to the Aganas. This ruling proceeds from the following ratiocination in Ramos:

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting “consultants,” who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for “consultant” slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals hire, fire and exercise real control over their attending and visiting “consultant” staff. While “consultants” are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient’s condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner’s condition.

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former’s responsibility under a relationship of partia ptetas.

Clearly, in Ramos, the Court considered the peculiar relationship between a hospital and its consultants on the bases of certain factors. One such factor is the “control test” wherein the hospital exercises control in the hiring and firing of consultants, like Dr. Ampil, and in the conduct of their work.

Actually, contrary to PSI’s contention, the Court did not reverse its ruling in Ramos. What it clarified was that the De Los Santos Medical Clinic did not exercise control over its consultant, hence, there is no employer-employee relationship between them. Thus, despite the granting of the said hospital’s motion for reconsideration, the doctrine in Ramos stays, i.e., for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship exists between hospitals and their consultants.

In the instant cases, PSI merely offered a general denial of responsibility, maintaining that consultants, like Dr. Ampil, are “independent contractors,” not employees of the hospital. Even assuming that Dr. Ampil is not an employee of Medical City, but an independent contractor, still the said hospital is liable to the Aganas.

In Nograles, et al. v. Capitol Medical Center, et al., through Mr. Justice Antonio T. Carpio, the Court held:

The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent contractor-physician.
In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this principle. The hospital may be liable if the physician is the “ostensible” agent of the hospital. (Jones v. Philpott, 702 F. Supp. 1210 [1988]) This exception is also known as the “doctrine of apparent authority.” (Sometimes referred to as the apparent or ostensible agency theory. [King v. Mitchell, 31 A.D.3rd 958, 819 N.Y. S.2d 169 (2006)].
x x x

The doctrine of apparent authority essentially involves two factors to determine the liability of an independent contractor-physician.
The first factor focuses on the hospital’s manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital. (Diggs v. Novant Health, Inc., 628 S.E.2d 851 (2006) citing Hylton v. Koontz, 138 N.C. App. 629 (2000). In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied. (Id.)

The doctrine of apparent authority is a specie of the doctrine of estoppel. Article 1431 of the Civil Code provides that “[t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon.” Estoppel rests on this rule: “Whether a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. (De Castro v. Ginete, 137 Phil. 453 [1969], citing Sec. 3, par. A, Rule 131 of the Rules of Court. See also King v. Mitchell, 31 A.D.3rd 958, 819 N.Y.S.2d 169 [2006]).
x x x

The second factor focuses on the patient’s reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. (Diggs v. Novant Health, Inc.)


PSI argues that the doctrine of apparent authority cannot apply to these cases because spouses Agana failed to establish proof of their reliance on the representation of Medical City that Dr. Ampil is its employee.
The argument lacks merit.
Atty. Agana categorically testified that one of the reasons why he chose Dr. Ampil was that he knew him to be a staff member of Medical City, a prominent and known hospital.

Q Will you tell us what transpired in your visit to Dr. Ampil?

A Well, I saw Dr. Ampil at the Medical City, I know him to be a staff member there, and I told him about the case of my wife and he asked me to bring my wife over so she could be examined. Prior to that, I have known Dr. Ampil, first, he was staying in front of our house, he was a neighbor, second, my daughter was his student in the University of the East School of Medicine at Ramon Magsaysay; and when my daughter opted to establish a hospital or a clinic, Dr. Ampil was one of our consultants on how to establish that hospital. And from there, I have known that he was a specialist when it comes to that illness.

Atty. Agcaoili

On that particular occasion, April 2, 1984, what was your reason for choosing to contact Dr. Ampil in connection with your wife’s illness?

A First, before that, I have known him to be a specialist on that part of the body as a surgeon; second, I have known him to be a staff member of the Medical City which is a prominent and known hospital. And third, because he is a neighbor, I expect more than the usual medical service to be given to us, than his ordinary patients.


Clearly, PSI is estopped from passing the blame solely to Dr. Ampil. Its act of displaying his name and those of the other physicians in the public directory at the lobby of the hospital amounts to holding out to the public that it offers quality medical service through the listed physicians. This justifies Atty. Agana’s belief that Dr. Ampil was a member of the hospital’s staff. It must be stressed that under the doctrine of apparent authority, the question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question. In these cases, the circumstances yield a positive answer to the question.

The challenged Decision also anchors its ruling on the doctrine of corporate responsibility. The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. This is because the modern hospital now tends to organize a highly-professional medical staff whose competence and performance need also to be monitored by the hospital commensurate with its inherent responsibility to provide quality medical care. Such responsibility includes the proper supervision of the members of its medical staff. Accordingly, the hospital has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises.
Unfortunately, PSI had been remiss in its duty. It did not conduct an immediate investigation on the reported missing gauzes to the great prejudice and agony of its patient. Dr. Jocson, a member of PSI’s medical staff, who testified on whether the hospital conducted an investigation, was evasive, thus:

Q We go back to the operative technique, this was signed by Dr. Puruganan, was this submitted to the hospital?
A Yes, sir, this was submitted to the hospital with the record of the patient.

Q Was the hospital immediately informed about the missing sponges?
A That is the duty of the surgeon, sir.

Q As a witness to an untoward incident in the operating room, was it not your obligation, Dr., to also report to the hospital because you are under the control and direction of the hospital?
A The hospital already had the record of the two OS missing, sir.

Q If you place yourself in the position of the hospital, how will you recover.
A You do not answer my question with another question.

Q Did the hospital do anything about the missing gauzes?
A The hospital left it up to the surgeon who was doing the operation, sir.

Q Did the hospital investigate the surgeon who did the operation?
A I am not in the position to answer that, sir.

Q You never did hear the hospital investigating the doctors involved in this case of those missing sponges, or did you hear something?

x x x x x x

A I think we already made a report by just saying that two sponges were missing, it is up to the hospital to make the move.

Atty. Agana

Precisely, I am asking you if the hospital did a move, if the hospital did a move.
A I cannot answer that.


Court
By that answer, would you mean to tell the Court that you were aware if there was such a move done by the hospital?
A I cannot answer that, your honor, because I did not have any more follow-up of the case that happened until now.



The above testimony obviously shows Dr. Jocson’s lack of concern for the patients. Such conduct is reflective of the hospital’s manner of supervision. Not only did PSI breach its duty to oversee or supervise all persons who practice medicine within its walls, it also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176.

Moreover, there is merit in the trial court’s finding that the failure of PSI to conduct an investigation “established PSI’s part in the dark conspiracy of silence and concealment about the gauzes.” The following testimony of Atty. Agana supports such findings, thus:

Q You said you relied on the promise of Dr. Ampil and despite the promise you were not able to obtain the said record. Did you go back to the record custodian?
A I did not because I was talking to Dr. Ampil. He promised me.

Q After your talk to Dr. Ampil, you went to the record custodian?
A I went to the record custodian to get the clinical record of my wife, and I was given a portion of the records consisting of the findings, among them, the entries of the dates, but not the operating procedure and operative report.



In sum, we find no merit in the motion for reconsideration.

WHEREFORE, we DENY PSI’s motion for reconsideration with finality.

SO ORDERED.


2010 En Banc Resolution on the Motion for Reconsideration

PROFESSIONAL SERVICES, INC. vs. Court of Appeals, et.al., En Banc, GR No. 126297, February 2, 2010; NATIVIDAD and ENRIQUE AGANA vs. CA, et. al., En Banc, GR NO. 126467, February 2, 2010; MIGUEL AMPIL vs. Natividad and Enrique Roque, En Banc, G.R. No. 127590, February 2, 2010.

X x x.

The Court premised the direct liability of PSI to the Aganas on the following facts and law:

First, there existed between PSI and Dr. Ampil an employer-employee relationship as contemplated in the December 29, 1999 decision in Ramos v. Court of Appeals that “for purposes of allocating responsibility in medical negligence cases, an employer-employee relationship exists between hospitals and their consultants.” Although the Court in Ramos later issued a Resolution dated April 11, 2002 reversing its earlier finding on the existence of an employment relationship between hospital and doctor, a similar reversal was not warranted in the present case because the defense raised by PSI consisted of a mere general denial of control or responsibility over the actions of Dr. Ampil.

Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public impression that he was its agent. Enrique testified that it was on account of Dr. Ampil's accreditation with PSI that he conferred with said doctor about his wife's (Natividad's) condition. After his meeting with Dr. Ampil, Enrique asked Natividad to personally consult Dr. Ampil. In effect, when Enrigue and Natividad engaged the services of Dr. Ampil, at the back of their minds was that the latter was a staff member of a prestigious hospital. Thus, under the doctrine of apparent authority applied in Nogales, et al. v. Capitol Medical Center, et al., PSI was liable for the negligence of Dr. Ampil.

Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty to provide comprehensive medical services to Natividad Agana, to exercise reasonable care to protect her from harm, to oversee or supervise all persons who practiced medicine within its walls, and to take active steps in fixing any form of negligence committed within its premises. PSI committed a serious breach of its corporate duty when it failed to conduct an immediate investigation into the reported missing gauzes.

PSI is now asking this Court to reconsider the foregoing rulings for these reasons:

I

The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009 Resolution that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December 29, 1999) that “an employer-employee relations exists between hospital and their consultants” stays should be set aside for being inconsistent with or contrary to the import of the resolution granting the hospital's motion for reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354, April 11, 2002), which is applicable to PSI since the Aganas failed to prove an employer-employee relationship between PSI and Dr. Ampil and PSI proved that it has no control over Dr. Ampil. In fact, the trial court has found that there is no employer-employee relationship in this case and that the doctor's are independent contractors.

II

Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and specifically look to the Medical City Hospital (PSI) for medical care and support; otherwise stated, respondents Aganas did not select Medical City Hospital (PSI) to provide medical care because of any apparent authority of Dr. Miguel Ampil as its agent since the latter was chosen primarily and specifically based on his qualifications and being friend and neighbor.

III

PSI cannot be liable under doctrine of corporate negligence since the proximate cause of Mrs. Agana's injury was the negligence of Dr. Ampil, which is an element of the principle of corporate negligence.

In their respective memoranda, intervenors raise parallel arguments that the Court's ruling on the existence of an employer-employee relationship between private hospitals and consultants will force a drastic and complex alteration in the long-established and currently prevailing relationships among patient, physician and hospital, with burdensome operational and financial consequences and adverse effects on all three parties.

The Aganas comment that the arguments of PSI need no longer be entertained for they have all been traversed in the assailed decision and resolution.

After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not under the principle of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its failure to perform its duties as a hospital.

While in theory a hospital as a juridical entity cannot practice medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of its business of facilitating medical and surgical treatment. Within that reality, three legal relationships crisscross: (1) between the hospital and the doctor practicing within its premises; (2) between the hospital and the patient being treated or examined within its premises and (3) between the patient and the doctor. The exact nature of each relationship determines the basis and extent of the liability of the hospital for the negligence of the doctor.

Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code or the principle of respondeat superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 of the Civil Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation.

This Court still employs the “control test” to determine the existence of an employer-employee relationship between hospital and doctor. In Calamba Medical Center, Inc. v. National Labor Relations Commission, et al. it held:

Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls both the means and the details of the process by which the physician is to accomplish his task.

xx xx xx

As priorly stated, private respondents maintained specific work-schedules, as determined by petitioner through its medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and which were strictly to be observed under pain of administrative sanctions.

That petitioner exercised control over respondents gains light from the undisputed fact that in the emergency room, the operating room, or any department or ward for that matter, respondents' work is monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent of petitioner or its medical director, no operations can be undertaken in those areas. For control test to apply, it is not essential for the employer to actually supervise the performance of duties of the employee, it being enough that it has the right to wield the power. (emphasis supplied)


Even in its December 29, 1999 decision and April 11, 2002 resolution in Ramos, the Court found the control test decisive.

In the present case, it appears to have escaped the Court's attention that both the RTC and the CA found no employment relationship between PSI and Dr. Ampil, and that the Aganas did not question such finding. In its March 17, 1993 decision, the RTC found “that defendant doctors were not employees of PSI in its hospital, they being merely consultants without any employer-employee relationship and in the capacity of independent contractors.” The Aganas never questioned such finding.

PSI, Dr. Ampil and Dr. Fuentes appealed from the RTC decision but only on the issues of negligence, agency and corporate liability. In its September 6, 1996 decision, the CA mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was clear in its discussion on the matter that it viewed their relationship as one of mere apparent agency.

The Aganas appealed from the CA decision, but only to question the exoneration of Dr. Fuentes. PSI also appealed from the CA decision, and it was then that the issue of employment, though long settled, was unwittingly resurrected.

In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no employer-employee relationship, such finding became final and conclusive even to this Court. There was no reason for PSI to have raised it as an issue in its petition. Thus, whatever discussion on the matter that may have ensued was purely academic.

Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance, the concurrent finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor in testing the employer-employee relationship between doctor and hospital under which the hospital could be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by preponderance of evidence. Here, there was insufficient evidence that PSI exercised the power of control or wielded such power over the means and the details of the specific process by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat superior.

There is, however, ample evidence that the hospital (PSI) held out to the patient (Natividad) that the doctor (Dr. Ampil) was its agent. Present are the two factors that determine apparent authority: first, the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the patient’s reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence.

Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of his wife; that after the meeting and as advised by Dr. Ampil, he “asked [his] wife to go to Medical City to be examined by [Dr. Ampil]”; and that the next day, April 3, he told his daughter to take her mother to Dr. Ampil. This timeline indicates that it was Enrique who actually made the decision on whom Natividad should consult and where, and that the latter merely acceded to it. It explains the testimony of Natividad that she consulted Dr. Ampil at the instigation of her daughter.

Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:
Atty. Agcaoili

On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil to contact with in connection with your wife's illness?

A. First, before that, I have known him to be a specialist on that part of the body as a surgeon, second, I have known him to be a staff member of the Medical City which is a prominent and known hospital. And third, because he is a neighbor, I expect more than the usual medical service to be given to us, than his ordinary patients. (emphasis supplied)

Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced by the impression that Dr. Ampil was a staff member of Medical City General Hospital, and that said hospital was well known and prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical City.

PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of record that PSI required a “consent for hospital care” to be signed preparatory to the surgery of Natividad. The form reads:

Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General Hospital to perform such diagnostic procedures and to administer such medications and treatments as may be deemed necessary or advisable by the physicians of this hospital for and during the confinement of xxx. (emphasis supplied)

By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its hospital, rather than one independently practicing in it; that the medications and treatments he prescribed were necessary and desirable; and that the hospital staff was prepared to carry them out.

PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive basis of the Aganas’ decision to have Natividad treated in Medical City General Hospital, meaning that, had Dr. Ampil been affiliated with another hospital, he would still have been chosen by the Aganas as Natividad's surgeon.

The Court cannot speculate on what could have been behind the Aganas’ decision but would rather adhere strictly to the fact that, under the circumstances at that time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised his wife Natividad to go to the Medical City General Hospital to be examined by said doctor, and the hospital acted in a way that fortified Enrique's belief.

This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence of Dr. Ampil as its ostensible agent.

Moving on to the next issue, the Court notes that PSI made the following admission in its Motion for Reconsideration:

51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr. Ampil's acts during the operation. Considering further that Dr. Ampil was personally engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as “Captain of the Ship”, and as the Agana's doctor to advise her on what to do with her situation vis-a-vis the two missing gauzes. In addition to noting the missing gauzes, regular check-ups were made and no signs of complications were exhibited during her stay at the hospital, which could have alerted petitioner PSI's hospital to render and provide post-operation services to and tread on Dr. Ampil's role as the doctor of Mrs. Agana. The absence of negligence of PSI from the patient's admission up to her discharge is borne by the finding of facts in this case. Likewise evident therefrom is the absence of any complaint from Mrs. Agana after her discharge from the hospital which had she brought to the hospital's attention, could have alerted petitioner PSI to act accordingly and bring the matter to Dr. Ampil's attention. But this was not the case. Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the hospital. How then could PSI possibly do something to fix the negligence committed by Dr. Ampil when it was not informed about it at all. (emphasis supplied)

PSI reiterated its admission when it stated that had Natividad Agana “informed the hospital of her discomfort and pain, the hospital would have been obliged to act on it.”

The significance of the foregoing statements is critical.

First, they constitute judicial admission by PSI that while it had no power to control the means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its patients.

Second, it is a judicial admission that, by virtue of the nature of its business as well as its prominence in the hospital industry, it assumed a duty to “tread on” the “captain of the ship” role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities.

Third, by such admission, PSI defined the standards of its corporate conduct under the circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence.

And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration that the concept of corporate responsibility was not yet in existence at the time Natividad underwent treatment; and that if it had any corporate responsibility, the same was limited to reporting the missing gauzes and did not include “taking an active step in fixing the negligence committed.” An admission made in the pleading cannot be controverted by the party making such admission and is conclusive as to him, and all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether or not objection is interposed by a party.

Given the standard of conduct that PSI defined for itself, the next relevant inquiry is whether the hospital measured up to it.

PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing Natividad about the two missing gauzes. Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but Dr. Ampil assured them that he would personally notify the patient about it. Furthermore, PSI claimed that there was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of complications. She did not even inform the hospital about her discomfort.

The excuses proffered by PSI are totally unacceptable.

To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. The purpose of such review would have been to pinpoint when, how and by whom two surgical gauzes were mislaid so that necessary remedial measures could be taken to avert any jeopardy to Natividad’s recovery. Certainly, PSI could not have expected that purpose to be achieved by merely hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps. By its own standard of corporate conduct, PSI's duty to initiate the review was non-delegable.

While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, PSI imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose of the first would have been to apprise Natividad of what transpired during her surgery, while the purpose of the second would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy, so as to prevent a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad. That Dr. Ampil negligently failed to notify Natividad did not release PSI from its self-imposed separate responsibility.

Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its premises, PSI had the duty to take notice of medical records prepared by its own staff and submitted to its custody, especially when these bear earmarks of a surgery gone awry. Thus, the record taken during the operation of Natividad which reported a gauze count discrepancy should have given PSI sufficient reason to initiate a review. It should not have waited for Natividad to complain.

As it happened, PSI took no heed of the record of operation and consequently did not initiate a review of what transpired during Natividad’s operation. Rather, it shirked its responsibility and passed it on to others – to Dr. Ampil whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful step. By its inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence.

It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical negligence attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant practicing within its premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil.

All this notwithstanding, we make it clear that PSI’s hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances. The ruling is unique to this case, for the liability of PSI arose from an implied agency with Dr. Ampil and an admitted corporate duty to Natividad.

Other circumstances peculiar to this case warrant this ruling, not the least of which being that the agony wrought upon the Aganas has gone on for 26 long years, with Natividad coming to the end of her days racked in pain and agony. Such wretchedness could have been avoided had PSI simply done what was logical: heed the report of a guaze count discrepancy, initiate a review of what went wrong and take corrective measures to ensure the safety of Nativad. Rather, for 26 years, PSI hemmed and hawed at every turn, disowning any such responsibility to its patient. Meanwhile, the options left to the Aganas have all but dwindled, for the status of Dr. Ampil can no longer be ascertained.

Therefore, taking all the equities of this case into consideration, this Court believes P15 million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest from the finality of this resolution to full satisfaction.

WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention are NOTED.

Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the total amount of P15 million, subject to 12% p.a. interest from the finality of this resolution to full satisfaction.

No further pleadings by any party shall be entertained in this case.

Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of this resolution.

SO ORDERED.


Read also:


1999 Decision in Ramos vs. CA

ROGELIO E. RAMOS and ERLINDA RAMOS, et. al. vs. vs. COURT OF APPEALS, et. al., G.R. No. 124354. December 29, 1999.

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient’s fate.

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy.

Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May 1995, which overturned the decisionof the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. “A”) robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of examinations which included blood and urine tests (Exhs. “A” and “C”) which indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that their date at the operating table at the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a “cholecystectomy” operation after examining the documents (findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologist’s fee and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center, was also there for moral support. She reiterated her previous request for Herminda to be with her even during the operation. After praying, she was given injections. Her hands were held by Herminda as they went down from her room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, “Mindy, wala pa ba ang Doctor”? The former replied, “Huwag kang mag-alaala, darating na iyon” (ibid.).

Thereafter, Herminda went out of the operating room and informed the patient’s husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told her, “Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor.” So, she went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was “already dying [and] waiting for the arrival of the doctor” even as he did his best to find somebody who will allow him to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked, “Nandiyan na si Dr. Hosaka, dumating na raw.” Upon hearing those words, he went down to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that “Dr. Hosaka is already here.” She then saw people inside the operating room “moving, doing this and that, [and] preparing the patient for the operation” (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, “ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan” (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to intubate the patient. The patient’s nailbed became bluish and the patient was placed in a trendelenburg position - a position where the head of the patient is placed in a position lower than her feet which is an indication that there is a decrease of blood supply to the patient’s brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos “that something wrong was x x x happening” (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door of the operating room. He also saw several doctors rushing towards the operating room. When informed by Herminda Cruz that something wrong was happening, he told her (Herminda) to be back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former that something went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the doctor that the condition of his wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot do anything. She cannot move any part of her body. She cannot see or hear. She is living on mechanical means. She suffered brain damage as a result of the absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been staying in their residence, still needing constant medical attention, with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering from “diffuse cerebral parenchymal damage” (Exh. “G”; see also TSN, December 21, 1989, p. 6).

Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court of Quezon City against herein private respondents alleging negligence in the management and care of Erlinda Ramos.

X x x.

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for almost three (3) hours. For after she committed a mistake in intubating [the] patient, the patient's nailbed became bluish and the patient, thereafter, was placed in trendelenburg position, because of the decrease of blood supply to the patient's brain. The evidence further shows that the hapless patient suffered brain damage because of the absence of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to provide the patient a `good anesthesiologist', and for arriving for the scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in their `practice of medicine' in the operating room. Moreover, the hospital is liable for failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and prudence in rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed by them, the patient would not have become comatose. And, the fact that another anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the operation to a later date. This, they should have done, if defendants acted with due care and prudence as the patient's case was an elective, not an emergency case.

x x x

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00 by way of exemplary damages; and,
4) the costs of the suit.

SO ORDERED.

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice must be tempered with mercy.

SO ORDERED.

X x x.

Petitioners assail the decision of the Court of Appeals on the following grounds:

I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.
Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their Comment, private respondents contend that the petition should not be given due course since the motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party’s lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the former should be considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means “the thing or the transaction speaks for itself.” The phrase “res ipsa loquitur” is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant’s want of care.

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.
In the above requisites, the fundamental element is the “control of the instrumentality” which caused the damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident.

Medical malpracticecases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could.

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, where the Kansas Supreme Court in applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and control of his physician who had complete and exclusive control over him, but the operation was never performed. At the time of submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable damage and injury rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics and unconscious, and the circumstances are such that the true explanation of event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated under the doctrine of res ipsa loquitur.

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fateful day she delivered her person over to the care, custody and control of private respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body. However, during the administration of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated.

Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not happen in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence attended the management and care of the patient.

Moreover, the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlinda’s comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the endotracheal intubationof the patient and thus, cannot be said to be covering her negligence with falsehood. The appellate court likewise opined that private respondents were able to show that the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private respondents’ own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their negligence in the care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying “Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.”
x x x

ATTY. PAJARES:
Q: From whom did you hear those words “lumalaki ang tiyan”?
A: From Dra. Perfecta Gutierrez.
x x x
After hearing the phrase “lumalaki ang tiyan,” what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient’s nailbed became bluish and I saw the patient was placed in trendelenburg position.
x x x
Q: Do you know the reason why the patient was placed in that trendelenburg position?
A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain.
x x x

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal tube was in its proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases.

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances, and manifest conditions which are observable by any one. This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. We take judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse
whose long experience and scholarship led to her appointment as Dean of the Capitol Medical Center School of Nursing, was fully capable of determining whether or not the intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of Nursing.Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced difficulty in inserting the tube into Erlinda’s trachea, to wit:

ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said “mahirap yata ito,” what were you referring to?
A: “Mahirap yata itong i-intubate,” that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away.

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal anatomy of a person) making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that they proceeded to make a thorough assessment of Erlinda’s airway, prior to the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the patient’s medical records and visits with the patient, traditionally, the day before elective surgery. It includes taking the patient’s medical history, review of current drug therapy, physical examination and interpretation of laboratory data. The physical examination performed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and upper airway. A thorough analysis of the patient's airway normally involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance. Thus, physical characteristics of the patient’s upper airway that could make tracheal intubation difficult should be studied. Where the need arises, as when initial assessment indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient’s airway would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician’s centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an emergency surgery just so her failure to perform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can introduce yourself to establish good doctor-patient relationship and gain the trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and in my case, with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it except on emergency and on cases that have an abnormalities (sic).

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time to make a proper assessment, including the time to be at the patient's bedside to do a proper interview and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed and cooperative.

Erlinda’s case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a thorough evaluation of Erlinda’s case prior to the operation and prepare her for anesthesia. However, she never saw the patient at the bedside. She herself admitted that she had seen petitioner only in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to take advantage of this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of Erlinda’s comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda’s coma was due to bronchospasm mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory that the oxygen deprivation which led to anoxic encephalopathy, was due to an unpredictable drug reaction to the short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora’s testimony as an expert witness in the anesthetic practice of Pentothal administration is further supported by his own admission that he formulated his opinions on the drug not from the practical experience gained by a specialist or expert in the administration and use of Sodium Pentothal on patients, but only from reading certain references, to wit:

ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from books and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience you feel that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims.

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora’s testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidenceregarding expert witnesses states:
Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field, private respondents’ intentionally avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents’ theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing - some of the more common accompanying signs of an allergic reaction - appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical proof, and against the weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to absolve them of any and all responsibility for the patient’s condition.

In view of the evidence at hand, we are inclined to believe petitioners’ stand that it was the faulty intubation which was the proximate cause of Erlinda’s comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which triggered the chain of events leading to Erlinda’s brain damage and, ultimately, her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, “Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.” Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development of abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place was an esophageal intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place.

That abdominal distention had been observed during the first intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already blue. However, private respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We do not think so. No evidence exists on record, beyond private respondents' bare claims, which supports the contention that the second intubation was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that the second intubation was accomplished. Even granting that the tube was successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes.

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a thorough evaluation of the patient’s airway prior to the operation. As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent physician could have been much more prepared to meet the contingency brought about by the perceived anatomic variations in the patient’s neck and oral area, defects which would have been easily overcome by a prior knowledge of those variations together with a change in technique. In other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had little difficulty going around the short neck and protruding teeth. Having failed to observe common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez’ negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called “captain of the ship,” it is the surgeon’s responsibility to see to it that those under him perform their task in the proper manner. Respondent Dr. Hosaka’s negligence can be found in his failure to exercise the proper authority (as the “captain” of the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra.

Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda’s cholecystectomy, and was in fact over three hours late for the latter’s operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda’s condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting “consultants,” who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for “consultant” slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting “consultant” staff. While “consultants” are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient’s condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner’s condition.

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former’s responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda’s condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, “subject to its being updated” covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly inadequate to cover the actual costs of home-based care for a comatose individual. The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. The Civil Code provides:
Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable - and certainly not in the best interests of the administration of justice - for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded - temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable.

In Valenzuela vs. Court of Appeals, this Court was confronted with a situation where the injury suffered by the plaintiff would have led to expenses which were difficult to estimate because while they would have been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of her lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and occupational therapy. All of these adjustments, it has been documented, are painful.

x x x.

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable.

The injury suffered by Erlinda as a consequence of private respondents’ negligence is certainly much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over fourteen years now. The burden of care has so far been heroically shouldered by her husband and children, who, in the intervening years have been deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner’s condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim’s actual injury would not even scratch the surface of the resulting moral damage because it would be highly speculative to estimate the amount of emotional and moral pain, psychological damage and injury suffered by the victim or those actually affected by the victim’s condition. The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient’s illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim. The family’s moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature of the instant suit we are of the opinion that attorney’s fees valued at P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, the same automatically gives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of preventing complications. A physician’s experience with his patients would sometimes tempt him to deviate from established community practices, and he may end a distinguished career using unorthodox methods without incident. However, when failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure and a nexus is made between the deviation and the injury or damage, the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private respondents’ case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and attorney’s fees; and, 5) the costs of the suit.

SO ORDERED.

2002 DECISION ON MOTION FOR RECONSIDERATION
IN RE: RAMOS VS. COURT OF APEALS.
(MODIFYING THE 199 DECISION;
ABSOLVING THE HOSPITAL)

ROGELIO E. RAMOS and ERLINDA RAMOS, et. al. vs. vs. COURT OF APPEALS, et. al., G.R. No. 124354, April 11, 2002.

X x x.

The Court enumerated the issues to be resolved in this case as follows:

1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST.

We shall first resolve the issue pertaining to private respondent Dr. Gutierrez. She maintains that the Court erred in finding her negligent and in holding that it was the faulty intubation which was the proximate cause of Erlinda’s comatose condition. The following objective facts allegedly negate a finding of negligence on her part: 1) That the outcome of the procedure was a comatose patient and not a dead one; 2) That the patient had a cardiac arrest; and 3) That the patient was revived from that cardiac arrest. In effect, Dr. Gutierrez insists that, contrary to the finding of this Court, the intubation she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez’ claim of lack of negligence on her part is belied by the records of the case. It has been sufficiently established that she failed to exercise the standards of care in the administration of anesthesia on a patient. Dr. Egay enlightened the Court on what these standards are:

x x x What are the standards of care that an anesthesiologist should do before we administer anesthesia? The initial step is the preparation of the patient for surgery and this is a pre-operative evaluation because the anesthesiologist is responsible for determining the medical status of the patient, developing the anesthesia plan and acquainting the patient or the responsible adult particularly if we are referring with the patient or to adult patient who may not have, who may have some mental handicaps of the proposed plans. We do pre-operative evaluation because this provides for an opportunity for us to establish identification and personal acquaintance with the patient. It also makes us have an opportunity to alleviate anxiety, explain techniques and risks to the patient, given the patient the choice and establishing consent to proceed with the plan. And lastly, once this has been agreed upon by all parties concerned the ordering of pre-operative medications. And following this line at the end of the evaluation we usually come up on writing, documentation is very important as far as when we train an anesthesiologist we always emphasize this because we need records for our protection, well, records. And it entails having brief summary of patient history and physical findings pertinent to anesthesia, plan, organize as a problem list, the plan anesthesia technique, the plan post operative, pain management if appropriate, special issues for this particular patient. There are needs for special care after surgery and if it so it must be written down there and a request must be made known to proper authorities that such and such care is necessary. And the request for medical evaluation if there is an indication. When we ask for a cardio-pulmonary clearance it is not in fact to tell them if this patient is going to be fit for anesthesia, the decision to give anesthesia rests on the anesthesiologist. What we ask them is actually to give us the functional capacity of certain systems which maybe affected by the anesthetic agent or the technique that we are going to use. But the burden of responsibility in terms of selection of agent and how to administer it rest on the anesthesiologist.

The conduct of a preanesthetic/preoperative evaluation prior to an operation, whether elective or emergency, cannot be dispensed with. Such evaluation is necessary for the formulation of a plan of anesthesia care suited to the needs of the patient concerned.

Pre-evaluation for anesthesia involves taking the patient’s medical history, reviewing his current drug therapy, conducting physical examination, interpreting laboratory data, and determining the appropriate prescription of preoperative medications as necessary to the conduct of anesthesia.

Physical examination of the patient entails not only evaluating the patient’s central nervous system, cardiovascular system and lungs but also the upper airway. Examination of the upper airway would in turn include an analysis of the patient’s cervical spine mobility, temporomandibular mobility, prominent central incisors, deceased or artificial teeth, ability to visualize uvula and the thyromental distance.

Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first time on the day of the operation itself, one hour before the scheduled operation. She auscultated the patient’s heart and lungs and checked the latter’s blood pressure to determine if Erlinda was indeed fit for operation. However, she did not proceed to examine the patient’s airway. Had she been able to check petitioner Erlinda’s airway prior to the operation, Dr. Gutierrez would most probably not have experienced difficulty in intubating the former, and thus the resultant injury could have been avoided. As we have stated in our Decision:

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician’s centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda that caused her comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed a medical procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during the oral arguments:

CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were done by Dr. Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention, professional acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.

What is left to be determined therefore is whether Erlinda’s hapless condition was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda) was under the latter’s care. Dr. Gutierrez maintains that the bronchospasm and cardiac arrest resulting in the patient’s comatose condition was brought about by the anaphylactic reaction of the patient to Thiopental Sodium (pentothal). In the Decision, we explained why we found Dr. Gutierrez’ theory unacceptable. In the first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr. Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an authority on anesthesia practice and procedure and their complications.
Secondly, there was no evidence on record to support the theory that Erlinda developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as to the manifestations of an allergic reaction in this wise:

DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic reaction is something which is not usual response and it is further qualified by the release of a hormone called histamine and histamine has an effect on all the organs of the body generally release because the substance that entered the body reacts with the particular cell, the mass cell, and the mass cell secretes this histamine. In a way it is some form of response to take away that which is not mine, which is not part of the body. So, histamine has multiple effects on the body. So, one of the effects as you will see you will have redness, if you have an allergy you will have tearing of the eyes, you will have swelling, very crucial swelling sometimes of the larynges which is your voice box main airway, that swelling may be enough to obstruct the entry of air to the trachea and you could also have contraction, constriction of the smaller airways beyond the trachea, you see you have the trachea this way, we brought some visual aids but unfortunately we do not have a projector. And then you have the smaller airways, the bronchi and then eventually into the mass of the lungs you have the bronchus. The difference is that these tubes have also in their walls muscles and this particular kind of muscles is smooth muscle so, when histamine is released they close up like this and that phenomenon is known as bronco spasm. However, the effects of histamine also on blood vessels are different. They dilate blood vessel open up and the patient or whoever has this histamine release has hypertension or low blood pressure to a point that the patient may have decrease blood supply to the brain and may collapse so, you may have people who have this.

These symptoms of an allergic reaction were not shown to have been extant in Erlinda’s case. As we held in our Decision, “no evidence of stridor, skin reactions, or wheezing – some of the more common accompanying signs of an allergic reaction – appears on record. No laboratory data were ever presented to the court.”
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as evidenced by the fact that she was revived after suffering from cardiac arrest. Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on the matter of the administration of anesthesia when she (Cruz), being a nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the Court’s attention to her synopsis on what transpired during Erlinda’s intubation:

12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg) given by slow IV. 02 was started by mask. After pentothal injection this was followed by IV injection of Norcuron 4mg. After 2 minutes 02 was given by positive pressure for about one minute. Intubation with endotracheal tube 7.5 m in diameter was done with slight difficulty (short neck & slightly prominent upper teeth) chest was examined for breath sounds & checked if equal on both sides. The tube was then anchored to the mouth by plaster & cuff inflated. Ethrane 2% with 02 4 liters was given. Blood pressure was checked 120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was discontinued & 02 given alone. Cyanosis disappeared. Blood pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and sonorous rales all over the chest. D_5%_H20 & 1 ampule of aminophyline by fast drip was started. Still the cyanosis was persistent. Patient was connected to a cardiac monitor. Another ampule of of [sic] aminophyline was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and intercardiac injection of adrenalin was given & heart beat reappeared in less than one minute. Sodium bicarbonate & another dose of solu cortef was given by IV. Cyanosis slowly disappeared & 02 continuously given & assisted positive pressure. Laboratory exams done (see results in chart).

Patient was transferred to ICU for further management.

From the foregoing, it can be allegedly seen that there was no withdrawal (extubation) of the tube. And the fact that the cyanosis allegedly disappeared after pure oxygen was supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries purportedly contained in Dr. Gutierrez’ synopsis. It is significant to note that the said record prepared by Dr. Gutierrez was made only after Erlinda was taken out of the operating room. The standard practice in anesthesia is that every single act that the anesthesiologist performs must be recorded. In Dr. Gutierrez’ case, she could not account for at least ten (10) minutes of what happened during the administration of anesthesia on Erlinda. The following exchange between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive:

DR. ESTRELLA
You mentioned that there were two (2) attempts in the intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted or was the laryngoscope only inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-direct, a certain lawyer, you were asked that you did a first attempt and the question was – did you withdraw the tube? And you said – you never withdrew the tube, is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there was no insertion of the tube during that first attempt. Now, the other thing that we have to settle here is – when cyanosis occurred, is it recorded in the anesthesia record when the cyanosis, in your recording when did the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during that period or from the time of induction to the time that you probably get the patient out of the operating room that every single action that you do is so recorded in your anesthesia record?
A I was not able to record everything I did not have time anymore because I did that after the, when the patient was about to leave the operating room. When there was second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the pentothal very slowly and that was around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and after (interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which is a relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less 12:19, is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw which you push it downwards and when I saw that the patient was relax because that monorcure is a relaxant, you cannot intubate the patient or insert the laryngoscope if it is not keeping him relax. So, my first attempt when I put the laryngoscope on I saw the trachea was deeply interiorly. So, what I did ask “mahirap ata ito ah.” So, I removed the laryngoscope and oxygenated again the patient.

Q So, more or less you attempted to do an intubation after the first attempt as you claimed that it was only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said “mahirap ata ito” when the first attempt I did not see the trachea right away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two to three seconds.
Q At what point, for purposes of discussion without accepting it, at what point did you make the comment “na mahirap ata to intubate, mali ata ang pinasukan”
A I did not say “mali ata ang pinasukan” I never said that.
Q Well, just for the information of the group here the remarks I am making is based on the documents that were forwarded to me by the Supreme Court. That is why for purposes of discussion I am trying to clarify this for the sake of enlightenment. So, at what point did you ever make that comment?
A Which one, sir?
Q The “mahirap intubate ito” assuming that you (interrupted)
A Iyon lang, that is what I only said “mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first time.
Q So, when you claim that at the first attempt you inserted the laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the transcript of records that when the lawyer of the other party try to inquire from you during the first attempt that was the time when “mayroon ba kayong hinugot sa tube, I do not remember the page now, but it seems to me it is there. So, that it was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the anesthesia records from 12:20 to 12:30 there was no recording of the vital signs. And can we presume that at this stage there was already some problems in handling the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is laughing)
Q No, I am just asking. Remember I am not here not to pin point on anybody I am here just to more or less clarify certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten (10) minutes. From 12:20 to 12:30, and going over your narration, it seems to me that the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just going over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano, that it seems to me that there is no recording from 12:20 to 12:30, so, I am just wondering why there were no recordings during the period and then of course the second cyanosis, after the first cyanosis. I think that was the time Dr. Hosaka came in?
A No, the first cyanosis (interrupted).
We cannot thus give full credence to Dr. Gutierrez’ synopsis in light of her admission that it does not fully reflect the events that transpired during the administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a ten-minute gap in Dr. Gutierrez’ synopsis, i.e., the vital signs of Erlinda were not recorded during that time. The absence of these data is particularly significant because, as found by the trial court, it was the absence of oxygen supply for four (4) to five (5) minutes that caused Erlinda’s comatose condition.

On the other hand, the Court has no reason to disbelieve the testimony of Cruz. As we stated in the Decision, she is competent to testify on matters which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances and manifest conditions which are observable by any one. Cruz, Erlinda’s sister-in-law, was with her inside the operating room. Moreover, being a nurse and Dean of the Capitol Medical Center School of Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez remark, “Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.” She observed that the nailbeds of Erlinda became bluish and thereafter Erlinda was placed in trendelenburg position. Cruz further averred that she noticed that the abdomen of Erlinda became distended.

The cyanosis (bluish discoloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the stomach of Erlinda indicate that the endotracheal tube was improperly inserted into the esophagus instead of the trachea. Consequently, oxygen was delivered not to the lungs but to the gastrointestinal tract. This conclusion is supported by the fact that Erlinda was placed in trendelenburg position. This indicates that there was a decrease of blood supply to the patient’s brain. The brain was thus temporarily deprived of oxygen supply causing Erlinda to go into coma.

The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. As was noted in our Decision, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka. In Voss vs. Bridwell, which involved a patient who suffered brain damage due to the wrongful administration of anesthesia, and even before the scheduled mastoid operation could be performed, the Kansas Supreme Court applied the doctrine of res ipsa loquitur, reasoning that the injury to the patient therein was one which does not ordinarily take place in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube. The court went on to say that “[o]rdinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances, a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised.” Considering the application of the doctrine of res ipsa loquitur, the testimony of Cruz was properly given credence in the case at bar.

For his part, Dr. Hosaka mainly contends that the Court erred in finding him negligent as a surgeon by applying the Captain-of-the-Ship doctrine. Dr. Hosaka argues that the trend in United States jurisprudence has been to reject said doctrine in light of the developments in medical practice. He points out that anesthesiology and surgery are two distinct and specialized fields in medicine and as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in her field and has acquired skills and knowledge in the course of her training which Dr. Hosaka, as a surgeon, does not possess. He states further that current American jurisprudence on the matter recognizes that the trend towards specialization in medicine has created situations where surgeons do not always have the right to control all personnel within the operating room, especially a fellow specialist.

Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital, which involved a suit filed by a patient who lost his voice due to the wrongful insertion of the endotracheal tube preparatory to the administration of anesthesia in connection with the laparotomy to be conducted on him. The patient sued both the anesthesiologist and the surgeon for the injury suffered by him. The Supreme Court of Appeals of West Virginia held that the surgeon could not be held liable for the loss of the patient’s voice, considering that the surgeon did not have a hand in the intubation of the patient. The court rejected the application of the “Captain-of-the-Ship Doctrine,” citing the fact that the field of medicine has become specialized such that surgeons can no longer be deemed as having control over the other personnel in the operating room. It held that “[a]n assignment of liability based on actual control more realistically reflects the actual relationship which exists in a modern operating room.” Hence, only the anesthesiologist who inserted the endotracheal tube into the patient’s throat was held liable for the injury suffered by the latter.
This contention fails to persuade.

That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case justify the application of the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr. Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the necessary competence and skills. Drs. Hosaka and Gutierrez had worked together since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage the services of Dr. Gutierrez to administer the anesthesia on his patient.

Second, Dr. Hosaka himself admitted that he was the attending physician of Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave instructions to call for another anesthesiologist and cardiologist to help resuscitate Erlinda.
Third, it is conceded that in performing their responsibilities to the patient, Drs. Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate watertight compartments because their duties intersect with each other.

While the professional services of Dr. Hosaka and Dr. Gutierrez were secured primarily for their performance of acts within their respective fields of expertise for the treatment of petitioner Erlinda, and that one does not exercise control over the other, they were certainly not completely independent of each other so as to absolve one from the negligent acts of the other physician.

That they were working as a medical team is evident from the fact that Dr. Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez, and while doing so, he observed that the patient’s nails had become dusky and had to call Dr. Gutierrez’s attention thereto. The Court also notes that the counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would also have to observe the surgeon’s acts during the surgical process and calls the attention of the surgeon whenever necessary in the course of the treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are therefore not as clear-cut as respondents claim them to be. On the contrary, it is quite apparent that they have a common responsibility to treat the patient, which responsibility necessitates that they call each other’s attention to the condition of the patient while the other physician is performing the necessary medical procedures.

It is equally important to point out that Dr. Hosaka was remiss in his duty of attending to petitioner Erlinda promptly, for he arrived more than three (3) hours late for the scheduled operation. The cholecystectomy was set for June 17, 1985 at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless disregard for his patient’s well being, Dr. Hosaka scheduled two procedures on the same day, just thirty minutes apart from each other, at different hospitals. Thus, when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed on time, Erlinda was kept in a state of uncertainty at the DLSMC.

The unreasonable delay in petitioner Erlinda’s scheduled operation subjected her to continued starvation and consequently, to the risk of acidosis, or the condition of decreased alkalinity of the blood and tissues, marked by sickly sweet breath, headache, nausea and vomiting, and visual disturbances. The long period that Dr. Hosaka made Erlinda wait for him certainly aggravated the anxiety that she must have been feeling at the time. It could be safely said that her anxiety adversely affected the administration of anesthesia on her. As explained by Dr. Camagay, the patient’s anxiety usually causes the outpouring of adrenaline which in turn results in high blood pressure or disturbances in the heart rhythm:

DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to alleviate anxiety. Second is to dry up the secretions and Third is to relieve pain. Now, it is very important to alleviate anxiety because anxiety is associated with the outpouring of certain substances formed in the body called adrenalin. When a patient is anxious there is an outpouring of adrenalin which would have adverse effect on the patient. One of it is high blood pressure, the other is that he opens himself to disturbances in the heart rhythm, which would have adverse implications. So, we would like to alleviate patient’s anxiety mainly because he will not be in control of his body there could be adverse results to surgery and he will be opened up; a knife is going to open up his body. x x x
Dr. Hosaka cannot now claim that he was entirely blameless of what happened to Erlinda. His conduct clearly constituted a breach of his professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would you consider a patient's stay on the operating table for three hours sufficient enough to aggravate or magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case, three hours waiting and the patient was already on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the aggravation of the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of anxiety and most operating tables are very narrow and that patients are usually at risk of falling on the floor so there are restraints that are placed on them and they are never, never left alone in the operating room by themselves specially if they are already pre-medicated because they may not be aware of some of their movement that they make which would contribute to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner Erlinda is violative, not only of his duty as a physician “to serve the interest of his patients with the greatest solicitude, giving them always his best talent and skill,” but also of Article 19 of the Civil Code which requires a person, in the performance of his duties, to act with justice and give everyone his due.

Anent private respondent DLSMC’s liability for the resulting injury to petitioner Erlinda, we held that respondent hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil Code since there exists an employer-employee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka:

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting “consultant” staff. While “consultants” are not, technically employees, x x x the control exercised, the hiring and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. x x x
DLSMC however contends that applying the four-fold test in determining whether such a relationship exists between it and the respondent doctors, the inescapable conclusion is that DLSMC cannot be considered an employer of the respondent doctors.

It has been consistently held that in determining whether an employer-employee relationship exists between the parties, the following elements must be present: (1) selection and engagement of services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not only the end to be achieved, but the means to be used in reaching such an end.

DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of fellowship and references. Second, it is not the hospital but the patient who pays the consultant’s fee for services rendered by the latter. Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the hospital. Lastly, DLSMC argues that when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The hospital’s obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctor’s orders are carried out strictly.
After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospital’s position on this issue is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code.

As explained by respondent hospital, that the admission of a physician to membership in DLSMC’s medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's recommendation. Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient.

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital
facilities and staff necessary for her treatment.

For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda.

Finally, the Court also deems it necessary to modify the award of damages to petitioners in view of the supervening event of petitioner Erlinda’s death. In the assailed Decision, the Court awarded actual damages of One Million Three Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner Erlinda’s treatment and care from the date of promulgation of the Decision up to the time the patient expires or survives. In addition thereto, the Court awarded temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00) in view of the chronic and continuing nature of petitioner Erlinda’s injury and the certainty of further pecuniary loss by petitioners as a result of said injury, the amount of which, however, could not be made with certainty at the time of the promulgation of the decision. The Court justified such award in this manner:

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable—and certainly not in the best interests of the administration of justice—for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded—temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable.

However, subsequent to the promulgation of the Decision, the Court was informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999. In view of this supervening event, the award of temperate damages in addition to the actual or compensatory damages would no longer be justified since the actual damages awarded in the Decision are sufficient to cover the medical expenses incurred by petitioners for the patient. Hence, only the amounts representing actual, moral and exemplary damages, attorney’s fees and costs of suit should be awarded to petitioners.

WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from liability arising from the injury suffered by petitioner Erlinda Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby declared to be solidarily liable for the injury suffered by petitioner Erlinda on June 17, 1985 and are ordered to pay petitioners—
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorney’s fees; and
(e) the costs of the suit.

SO ORDERED.

Automation and holdover

As the 2010 Philippine general elections loom in the horizon, and considering that for the first time in Philippine history its elections would be fully automated, perhaps it is useful to reproduce below in full the informative feature article that appeared recently in the Philippine Daily Inquirer on the said topic, for legal research purposes of the visitors of this blog.

The Commission on Elections (Comelec) assures the country that the automation system is almost perfect.

However, many Filipinos silently fear a "holdover scenario", whereby the much-disliked incumbent Pres. Gloria Arroyo would continue to reign in the Palace, if and when the automation system fails, resulting in a massive failure of election.

In such a case, do not blame the discontented Filipino soldiers if they launch a coup d’état and/or if the hungry Filipinos in the streets initiate a non-violent civil disobedience campaign (short of a de facto civil war) to paralyze and punish the notorious 9-year old and Edsa II-bred Arroyo government.

Read the article below.


Get ready for the May 10 polls
Philippine Daily Inquirer
First Posted 20:21:00 02/06/2010


MANILA, Philippines—The country will hold its first automated general elections on May 10, a political exercise that is causing anxiety among voters and civil society. The anxiety is understandable. Like in many things that people do for the first time, they have lots of questions about poll automation.

Can the Commission on Elections (Comelec) deliver the correct ballots to each of the 75,471 clustered precincts? The poll body is printing 1,631 sets of unique ballots.

Can voters use the voting machine in case of a power outage? Can a precinct get a backup machine should the machine assigned to it conk out?

Can the counting machine transmit data despite a weak cell-phone signal or absence of signal in the area? Can signal jammers stop or delay the transmission of results?

Will technical support teams be available in the polling areas to address problems that may be encountered with the counting machines?

If the Comelec pulls it off, results are expected within two hours at the local level and 36 hours at the national level. The transmission, consolidation of results and proclamation of winning candidates will be completed in just six days, according to the poll body.

Automation

How does a precinct count optical scan (PCOS) machine work?

The PCOS is a ballot- based voting and counting machine that will be installed in each clustered precinct.

On Election Day, the precinct’s Board of Election Inspectors (BEI)—composed of three teachers—turns it on using a security key. Security pins are also needed to configure the machine and show that there is no entry or vote in the machine’s memory.

The machine scans the specially marked ballot fed into it by the voter. At the close of the polls, the machine counts the votes and prints the election returns.

A cable is then plugged into the machine to enable the electronic transmission of election reports to the Commission on Elections (Comelec) central server and the board of canvassers.

The machine is equipped with a backup battery so the equipment will continue operating in the event of a power outage.

Project cost

The automation contract between the Comelec and Smartmatic-Total Information Management (TIM) Corp. cost P7.2 billion. It was signed on July 10, 2009, after a lengthy bidding process.

The winning bidder is a joint venture between Smartmatic and TIM. The consortium, which is on a 60-40 basis in favor of TIM, was formalized by the Securities and Exchange Commission in July 2009.

Smartmatic is a Dutch-based multinational company, which owns subsidiaries in the United States, the Netherlands, Venezuela, Mexico, Ecuador and Barbados.

Since August 2004, Smartmatic has organized and performed multiple national and regional elections in Latin America, the Caribbean and the United States.

TIM is a Philippine-based information technology-solutions company founded in 1985. It has implemented projects for clients like the Social Security System, the Department of Trade and Industry, and the Government Service Insurance System.

How to use the ballot

At the polling center, the voter looks for his or her name on the voters’ list to determine his or her precinct and sequence number.

The voter should then approach the BEI, which upon verification of his or her identity will give the voter a ballot, secrecy folder and marking pen.

The voter fills out the ballot by fully shading the oval beside the names of the candidates and the party-list group of his or her choice.

The voter inserts the ballot in the entry slot of the PCOS machine, and waits until the ballot is dropped into the ballot box.

The voter returns the ballot-secrecy folder and marking pen to the BEI chair.
The chair shall apply indelible ink on the right forefinger nail of the voter.

The voter shall affix his or her thumbmark to the corresponding space on the voters’ list before leaving the polling place.

Tallying votes

Election returns at the precinct level will be transmitted electronically to the central server of the Comelec and to the board of canvassers at the municipal, city,
provincial and national levels.

Results are expected within 2 hours at the local level and 36 hours at the national level. Lawrence de Guzman, Inquirer Research

Powers of the Comelec

THE CONDUCT of polls is supervised by the Commission on Elections, an
independent body created in 1940 by an amendment to the 1935 Constitution. The current Constitution has given the Comelec jurisdiction over electoral contests and the power to deputize, with the President’s concurrence, law enforcement agencies, including the Armed Forces of the Philippines, to ensure peaceful and honest elections.

Absentee voting, dual citizens

FILIPINO citizens abroad can vote for candidates for president, vice president, senator and party-list representative by virtue of Republic Act No. 9189 or the Overseas Absentee Voting Act of 2003.

The absentee-voting option is also available for members of the armed forces, police and government service, who have been assigned temporarily to places where they are not registered voters to perform election duties. However, they are allowed to vote only for candidates for president, vice president, senator and party-list representative.

Filipinos with dual citizenship may elect officials for national and local posts.
Those who return to the country in time for the elections may vote as long as they are registered voters.

Spending limits

THE GOVERNMENT has imposed certain limitations on candidates to ensure equal campaign opportunities. The spending limit for someone running in the elections is P3 for each voter registered in the constituency where he or she filed a certificate of candidacy. Political parties and independent candidates can spend P5 for every such voter. In the case of presidential elections, those running for president or vice president can spend P10 per voter.

VOTERS, PCOS, BALLOTS

50,723,734 Registered voters (as of Jan. 15)
45,041,777 Registered voters in the 2007 elections
75,471 Precint count optical scan (PCOS) machines for clustered precincts
6,729 Backup PCOS Units
P7.2B Cost of automation
1,631 Sets of unique Ballots
8.5 x 25 Ballot size (in inches)
POSITIONS AT STAKE
1 President
1 Vice president
12 Senators
230 District Representatives
57 Party-list representatives
80 Governors
80 Vice governors
766 Members, Sangguniang Panlalawigan
137 City mayors
137 City vice mayors
1,524 Members, Sangguniang Panglungsod
1,497 Municipal mayors
1,497 Municipal vice mayors
11,980 Members, Sangguniang Bayan

See:
http://opinion.inquirer.net/inquireropinion/talkofthetown/view/20100206-251652/Get-ready-for-the-May-10-polls

Philippine extradition law

In light of the well-publicized trip last week of hard-hitting opposition Senator Panfilo Lacson to Hongkong (and from there, to other unknown countries) to intentionally evade the outstanding warrant of arrest recently issued against him by a Philippine trial court in connection with the heinous murder of a prominent Filipino publicist and his driver some years ago during the notorious term of convicted plunderer and former Philippine Pres. Joseph Estrada, perhaps it is relevant and useful to digest hereinbelow the salient procedural provisions of the Philippine Extradition Law (Presidential Decree No. 1069, c. 1977), for legal research purposes of the visitors of this blog.


"Extradition" is the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. (Sec. 2).

Under Sec. 3, an extradition may be granted only pursuant to a treaty or convention, and with a view to:

(a) A criminal investigation instituted by authorities of the requesting state or government charging the accused with an offense punishable under the laws both of the requesting state or government and the Republic of the Philippines by imprisonment or other form relevant extradition treaty or convention; or

(b) The execution of a prison sentence imposed by a court of the requesting state or government, with such duration as that stipulated in the relevant extradition treaty or convention, to be served in the jurisdiction of and as a punishment for an offense committed by the accused within the territorial jurisdiction of the requesting state or government.

Section 4 provides for the request procedures to be observed by the requesting state:

(1) Any foreign state or government with which the Republic of the Philippines has entered into extradition treaty or convention, only when the relevant treaty or convention, remains in force, may request for the extradition of any accused who is or suspected of being in the territorial jurisdiction of the Philippines.

(2) The request shall be made by the Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

(a) The original or an authentic copy of either -

(1) the decision or sentence imposed upon the accused by the court of the requesting state or government; or

(2) the criminal charge and the warrant of arrest issued by the authority of the requesting state or government having jurisdiction of the matter or some other instruments having the equivalent legal force.

(b) A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the
accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts;

(c) The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and

(d) Such other documents or information in support of the request.

Section 5 states the procedural duties of the Philippine Secretary of Foreign Affairs:

(1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of this case.

(2) The attorney so designated shall file a written petition with the proper Regional Trial Court of the province or city having jurisdiction of the place, with a prayer that the court take the request under consideration and shall attach to the petition all related documents. The filing of the petition and the service of the summons to the accused shall be free from the payment of docket and sheriff's fees.

(3) The Regional Trial Court with which the petition shall have been filed shall have and continue to have the exclusive power to hear and decide the case, regardless of the subsequent whereabouts of the accused, or the change or changes of his place of residence.

Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the ace or set another date for the hearing thereof. (Sec. 6).

Should the accused fail to appear on the date set for hearing, or if he is not under detention, the court shall forthwith issue a warrant for this arrest which may be served upon the accused anywhere in the Philippines. (Sec. 8).

Under Sec. 9, in the hearing, the provisions of the Rules of Court insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply to extradition cases, and the hearing shall be conducted in such a manner as to arrive as a fair and speedy disposition of the case.

Sworn statements offered in evidence at the hearing of any extradition case shall be received and admitted as evidence if properly and legally authenticated by the principal diplomatic or consular officer of the Republic of the Philippines residing in the requesting state.

Upon conclusion of the hearing, the court shall render a decision granting the extradition, and giving his reasons therefor upon showing of the existence of a prima facie case. Otherwise, it shall dismiss the petition.
The decision of the court shall be promptly served on the accused if he was not present at the reading thereof, and the clerk of the court shall immediately forward two copies thereof to the Secretary of Foreign Affairs through the Department of Justice. (Sec. 10 and Sec. 11).

The accused may, within 10 days from receipt of the decision of the Regional Trial Court appeal the decision, otherwise, it shall be final and immediately executory. The appeal shall stay the execution of the decision of the Regional Trial Court. (Sec. 12).

In case extradition of the same person has been requested by two or more states, the Secretary of Foreign Affairs, after consultation with the Secretary of Justice, shall decide which of the several requests shall be first considered, and copies of the former's decision thereon shall promptly be forwarded to the attorney having charge of the case, if there be one, through the Department of Justice. (Sec. 15).

After the decision of the court in an extradition case has become final and executory, the accused shall be placed at the disposal of the authorities of the requesting state or government, at a time and place to be determined by the Secretary of Foreign Affairs, after consultation with the foreign diplomat of the requesting state or government. (Sec. 16).

If extradition is granted, articles found in the possession of the accused who has been arrested may be seized upon order of the court at the instance of the requesting state or government, and such articles shall be delivered to the foreign diplomat of the requesting state or government who shall issue the corresponding receipt therefor. (Sec. 17).

Except when the relevant extradition treaty provides otherwise, all costs or expenses incurred in any extradition proceeding and in apprehending, securing and transmitting an accused shall be paid by the requesting state or government. The Secretary of Justice shall certify to the Secretary of Foreign Affairs the amounts to be paid by the requesting state or government on account of expenses and costs, and the Secretary of Foreign Affairs shall cause the amounts to be collected and transmitted to the Secretary of Justice for deposit in the National Treasury of the Philippines. (Sec. 18).

Section 20 provides for the procedures for provisional arrest:

(a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force; request for provisional arrest of the accused pending receipt of the request for extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Regional Trial Court of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting of the result of its request.

(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody.

(e) Release from provisional arrest shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently in accordance with the relevant treaty of convention.



Read also:

RP extradition treaty with only 10 states
By Veronica Uy
INQUIRER.net
First Posted 13:57:00 02/04/2010

MANILA, Philippines—As the government tries to proceed with the double-murder case against Senator Panfilo Lacson, INQUIRER.net learned that the country has an extradition treaty with only 10 states.
The United Nations has 192 members.


According to Foreign Affairs spokesman lawyer J. Eduardo Malaya, the Philippines has an extradition treaty with the following: Australia, Canada, China, Hong Kong, Indonesia, Korea, Micronesia, Switzerland, and Thailand.

Malaya, who also heads the Department of Foreign Affairs’ Office of Legal Affairs, said that under the usual extradition process, the requesting Department of Justice would ask the foreign authorities to extradite the subject person through a petition to be filed with the foreign courts.

“A summary hearing on whether or not to allow the extradition follows,” he said.

The subject is usually present in these proceedings, Malaya said, because “before the court assumes jurisdiction of the
case, the subject must be taken into its custody.”

He said these were the same procedures followed in previous extradition cases like that of Charlie “Atong” Ang, a co-accused in the plunder case against deposed president Joseph Estrada who was extradited back from the United States.

Lacson, who is charged with the murder of publicist Salvador “Bubby” Dacer and his driver Emmanuel Corbito, reportedly left the country to elude a warrant of arrest for the crime.

See:
http://globalnation.inquirer.net/news/breakingnews/view/20100204-251252/RP-extradition-treaty-with-only-10-states



RP may use extradition treaty to get Lacson
By Jerome Aning, TJ Burgonio
Philippine Daily Inquirer
First Posted 00:39:00 02/04/2010

MANILA, Philippines—The Philippine government may use “extraordinary measures” to have Sen. Panfilo Lacson brought back to the country should he refuse to face charges for the November 2000 Dacer-Corbito murders.

Justice Secretary Agnes Devanadera Wednesday cited these measures in the course of commenting on Lacson’s statement on Tuesday that he left the country because his indictment for the murders of publicist Salvador “Bubby” Dacer and driver Emmanuel Corbito was part of an “evil conspiracy” between Malacañang and the Department of Justice (DoJ).

As well, she said, the Philippine government could cancel Lacson’s passport so that he would be deported as an undocumented alien.

The opposition senator flew to Hong Kong on Jan. 5 and is purportedly now in Australia.

“He should come home” because “he has a level playing field in the court,” Devanadera told reporters in a press conference.

According to the justice secretary, the Philippine government may form a task force composed of members of the National Bureau of Investigation and Philippine National Police to request a foreign government to be allowed to serve a warrant that may be issued by the Manila Regional Trial Court for Lacson’s arrest.

She said the Philippines and Australia had an extradition treaty and that the Philippine government could invoke this, as well as mutual legal assistance pacts and international conventions.

Manila RTC Branch 18 Judge Myra Garcia Fernandez, who is hearing the double murder case, has yet to decide on Lacson’s earlier motion to defer the issuance of an arrest warrant.

‘Who, me?’

Devanadera bristled at Lacson’s claim that the DoJ was harassing him on Malacañang’s orders.

“Who in the DoJ is he referring to? Is it me? Can I harass him, a senator? What we did in the DoJ is just the regular preliminary investigation [of the case], where he was given all the opportunities to be heard,” she said.

Devanadera said Lacson had “no reason to complain” because he had availed himself of all legal processes, including questioning the authority of the DoJ to conduct the investigation, which the Court of Appeals later affirmed.

She added: “The court is not under the jurisdiction of the DoJ. Any allegation of harassment will not hold water. He has to prove his innocence in court and he is not prevented from availing [himself] of all the opportunities. There’s no arrest warrant yet. He should face his charges before the court, which is the right forum.”

Devanadera also directed a message to Lacson: “You have been elected a senator, a very high position in our government. We hope this matter will not find you somewhere else; we hope that you will face these charges so that your defense can be heard.

“Let’s not resort to ugly ways such as extradition. I believe you are honorable enough to face the charges in court and defend yourself.”

All legal means

At a briefing in Malacañang, Executive Secretary Eduardo Ermita also said the government would exhaust all legal means to have Lacson extradited once the warrant for his arrest is issued.

Ermita said among the “different ways to reach out to the subject of a warrant” was an extradition treaty.

“No. 2, the long arm of the law can be made to reach out to him through our connections, through … the Interpol, and the [Mutual Legal Assistance Treaty] with some countries,” he said.

At the NBI, lawyer Ricardo Diaz, chief of the bureau’s Counter Terrorism Unit and spokesperson, said no one there was pushing the panic button just yet because the court had yet to decide on whether to issue a warrant for Lacson’s arrest.
“I don’t see any problem if he decides to go anywhere else. It should not be a cause for alarm and panic. It’s his right because the court has not yet issued a warrant of arrest,” Diaz said.

“We will wait for the court’s decision first before we act on the situation.”

Diaz said that should the court order Lacson’s arrest, the NBI was ready to bring the senator back to the Philippines by means of extradition or with the help of the Interpol.

No threat

According to Ermita, Lacson “beat” the government by slipping out of the country before he could be put on the Bureau of Immigration watch list.

Ermita also scoffed at the senator’s claim that the administration had hatched a plot to harass and harm him.
“It’s just a suspicion. That’s just how he feels. The government, especially the executive branch, is not that callous as to be open and say, ‘Be careful because you’ve done us some wrong,’” he said.

“Over the nine years of the Arroyo administration, no one has been given such a threat or made to feel like he’s being stalked because he said something about the government. No one is out to do any harm to anybody.”

Ermita said he would not know what to do if he were in Lacson’s shoes.

“In the first place, not everyone has the same wherewithal as a person of the status of the senator. By wherewithal, I mean the resources to be able to do what he had done. An ordinary mortal may not have the resources to be able to anticipate that over the coming months, he can support himself if he’s out of the country.”

Fair treatment

Ermita said Lacson would be assured of tight government security and a fair chance “without any unnecessary interference from the executive branch” if the senator faces the charges.

“[He should come home] to prove that he has nothing to hide or be worried about,” Ermita said. “I can [guarantee] that as far as treatment of the good senator is concerned, he will be treated very fairly. And he knows that his security and safety will be assured, but [that] we can’t dictate on him.”

Even Cezar Mancao II, Lacson’s former police aide who implicated him in the murders, called on him to return.

“As a fellow former police officer, I am appealing to my former superior officer, Sen. Panfilo M. Lacson, to submit to the judicial process in proving his innocence, instead of fleeing the jurisdiction of the Philippine courts,” Mancao said in a statement issued through his lawyer, Ferdinand Topacio.

“The best way to prove his innocence is through the instrumentality of the courts which, under Philippine laws, incorporates numerous safeguards in favor of the accused. Flight has been, universally and since time immemorial, considered an indicator of guilt, even if one tries to justify it with allegations of persecution or harassment,” Mancao
said. With a report from Tina G. Santos

See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100204-251189/RP-may-use-extradition-treaty-to-get-Lacson



Visit: www.lawphil.net - The Lawphil Project - Arellano Law Foundation

Elections: freedom of corporate speech.

As the Philippine general elections loom in the horizon (May 10, 2010), for legal research purposes, perhaps it is useful and relevant to share with the visitors of this blog the recent landmark decision of the US Supreme Court on the topic of the “freedom of corporate speech” of profit and nonprofit US corporations in relation to their political campaign-related donations and expenditures.

Below is a digest of the very fresh case of CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, which was an appeal from the US District Court of Columbia, docketed as No. 08-205 and promulgated by the US Supreme Court on January 21, 2010, as published in the prestigious US law website www.findlaw.com (see: http://laws.findlaw.com/us/000/08-205.html).

The doctrinal pronouncements of the US Court in the aforecited case include the following:

1. Although the First Amendment provides that "Congress shall make no law ... abridging the freedom of speech," prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a Political Action Committee (APC) created by a corporation can still speak, for a PAC is a separate association from the corporation.

2. Because speech is an essential mechanism of democracy--it is the means to hold officials accountable to the people--political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL, 551 U. S., at 464.

3. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers.

4. The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428-4

5. The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech.

6. Political speech is "indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation."

7. First Amendment protections do not depend on the speaker's "financial ability to engage in public discussion."

8. It is irrelevant for First Amendment purposes that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas."

9. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech.

10. This Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

11. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co., 556 U. S. ___.

12. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.


Read below the www.findlaw.com’s verbatim digest of the abovecited case, thus:


As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an "electioneering communication" or for speech that expressly advocates the election or defeat of a candidate. 2 U. S. C. §441b.

An electioneering communication is "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and is made within 30 days of a primary election, §434(f)(3)(A), and that is "publicly distributed," 11 CFR §100.29(a)(2), which in "the case of a candidate for nomination for President ... means" that the communication "[c]an be received by 50,000 or more persons in a State where a primary election ... is being held within 30 days," §100.29(b)(3)(ii).

Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneering communications purposes. 2 U. S. C. §441b(b)(2).

In McConnell v. Federal Election Comm'n, 540 U. S. 93, 203-209, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, 494 U. S. 652, that political speech may be banned based on the speaker's corporate identity.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party's Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief, arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA's disclaimer, disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission (FEC) summary judgment.

Held:

1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin. Pp. 5-20.

(a) Citizen United's narrower arguments--that Hillary is not an "electioneering communication" covered by §441b because it is not "publicly distributed" under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b unconstitutional as applied to speech that was not "express advocacy or its functional equivalent," id., at 481 (opinion of Roberts, C. J.), determining that a communication "is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate," id., at 469-470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b's ban for nonprofit corporate political speech funded overwhelming by individuals--are not sustainable under a fair reading of the statute. Pp. 5-12.

(b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment's meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b's facial validity here because the District Court "passed upon" the issue, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizen United's narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b's facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b's corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government's litigating position; (2) substantial time would be required to clarify §441b's application on the points raised by the Government's position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12-20.

2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b's restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203's extension of §441b's restrictions on independent corporate expenditures is also overruled. Pp. 20-51.

(a) Although the First Amendment provides that "Congress shall make no law ... abridging the freedom of speech," §441b's prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy--it is the means to hold officials accountable to the people--political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20-25.

(b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428-429. Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18 U. S. C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25-26. However, the Court invalidated §608(e)'s expenditure ban, which applied to individuals, corporations, and unions, because it "fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process," id., at 47-48. While Buckley did not consider a separate ban on corporate and union independent expenditures found in §610, had that provision been challenged in Buckley's wake, it could not have been squared with the precedent's reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that §608(e)'s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified §610's corporate and union expenditure ban at 2 U. S. C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker's corporate identity. 435 U.S., at 784-785. Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing "the corrosive and distorting effects of immense aggregations of [corporate] wealth ... that have little or no correlation to the public's support for the corporation's political ideas." 494 U. S., at 660. Pp. 25-32.

(c) This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker's corporate identity and a post-Austin line permitting them. Neither Austin's antidistortion rationale nor the Government's other justifications support §441b's restrictions. Pp. 32-47.

(1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin's antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is "indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation." Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin's rationale, which is meant to prevent corporations from obtaining " 'an unfair advantage in the political marketplace' " by using " 'resources amassed in the economic marketplace.' " 494 U. S., at 659. First Amendment protections do not depend on the speaker's "financial ability to engage in public discussion." Buckley, supra, at 49. These conclusions were reaffirmed when the Court invalidated a BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm'n, 554 U. S. ___, ___. Distinguishing wealthy individuals from corporations based on the latter's special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas." Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views "hav[ing] little or no correlation to the public's support" for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment's original meaning would permit suppressing media corporations' political speech. Austin interferes with the "open marketplace" of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations. Pp. 32-40.

(2) This reasoning also shows the invalidity of the Government's other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale "sufficiently important" to allow contribution limits but refused to extend that reasoning to expenditure limits, 424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at 788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40-45.

(3) The Government's asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder's interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.

(4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation's political process. Pp. 46-47.

(d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability--the precedent's antiquity, the reliance interests at stake, and whether the decision was well reasoned--counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country's culture that speakers find ways around campaign finance laws. Rapid changes in technology--and the creative dynamic inherent in the concept of free expression--counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp. 47-50.

3. BCRA §§201 and 311 are valid as applied to the ads for Hillary and to the movie itself. Pp. 50-57.

(a) Disclaimer and disclosure requirements may burden the ability to speak, but they "impose no ceiling on campaign-related activities," Buckley, 424 U. S., at 64, or " ' "prevent anyone from speaking," ' " McConnell, supra, at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing "the electorate with information" about election-related spending sources. The McConnell Court applied this interest in rejecting facial challenges to §§201 and 311. 540 U. S., at 196. However, the Court acknowledged that as-applied challenges would be available if a group could show a " 'reasonable probability' " that disclosing its contributors' names would " 'subject them to threats, harassment, or reprisals from either Government officials or private parties.' " Id., at 198. Pp. 50-52.

(b) The disclaimer and disclosure requirements are valid as applied to Citizens United's ads. They fall within BCRA's "electioneering communication" definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and "insure that the voters are fully informed" about who is speaking, Buckley, supra, at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United's arguments that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group's speech were rejected in McConnell. This Court also rejects their contention that §201's disclosure requirements must be confined to speech that is the functional equivalent of express advocacy under WRTL's test for restrictions on independent expenditures, 551 U. S., at 469-476 (opinion of Roberts, C.J.). Disclosure is the less-restrictive alternative to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United's argument that no informational interest justifies applying §201 to its ads is similar to the argument this Court rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements can chill donations by exposing donors to retaliation, but offers no evidence that its members face the type of threats, harassment, or reprisals that might make §201 unconstitutional as applied. Pp. 52-55.

(c) For these same reasons, this Court affirms the application of the §§201 and 311 disclaimer and disclosure requirements to Hillary. Pp. 55-56.
Reversed in part, affirmed in part, and remanded.

Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia and Alito, JJ., joined, in which Thomas, J., joined as to all but Part IV, and in which Stevens, Ginsburg, Breyer, and Sotomayor, JJ., joined as to Part IV. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed a concurring opinion, in which Alito, J., joined, and in which Thomas, J., joined in part. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part.

Tax incentive for pro bono lawyers

In my previous blogs last year, I reported on the status of the senate bill sponsored by Sen. Lito Lapid (the action star-senator known to many Filipinos for his absenteeism and silence in the deliberations of the Senate) granting a 10% tax incentive to private law firms that provide free legal aid to poor litigants.

The bicameral committee of the Philippine Congress has approved it and it is now awaiting the approval of the President.

Below is a news item on the matter.

It will be noted that under Bar Matter No. 2010, the Supreme Court requires Filipino lawyers to render mandatory free legal services equivalent to 60 hours per annum, a violation of which may lead to the suspension of the licenses of the disobedient lawyers concerned.

The said rule was suspended last year by the Court per request of the national board of governors of the Integrated Bar of the Philippines (IBP) because the latter had not yet prepared the implementing rules and regulations thereof which the Court must approve en banc.




30/1 11:33PM
Finally, a law from Senator Lito Lapid: Legal assistance

MANILA, Philippines - Congress has ratified the bill granting legal assistance to the poor and giving lawyers tax credits for legal services rendered to poor clients.

Sen. Manuel “Lito” Lapid, main author of Senate Bill 2361 or the Legal Assistance to the Poor Act of 2010, said once signed into law by President Arroyo, the measure would encourage more lawyers and law firms to render pro bono services to poor clients who could not afford legal services by giving them tax credits in exchange for free assistance.

The bill grants an allowable tax deduction of up to 10 percent of the gross income of lawyers or law firms accredited by the Supreme Court and the Department of Justice to render service to the poor in exchange for tax deductions.

SB 2361, ratified by the Senate last Wednesday, was co-authored by Sen. Francis Escudero.

Lapid thanked his colleagues for recognizing the need to encourage more private lawyers to do pro bono work for the poor so they could help unburden the Public Attorney’s Office.

The senators said the new law would also preclude the wrongful conviction of suspects just because they were poor and could not afford the services of lawyers.

Under the bill, indigent litigants will have the opportunity to acquire the services of distinguished law firms and legal practitioners of the country for free.

The PAO, the DOJ or the accredited legal aid clinic shall issue a certification that services were rendered by the lawyer or professional partnership under this act. The certification shall include the cost of the actual services given.

The lawyer or professional partnership shall present the certificate/s to the Bureau of Internal Revenue (BIR) which shall deduct from the annual taxable income of the lawyer or professional partnership, the total cost of the actual services rendered as appearing in the certificate/s or 10 percent of the annual gross income derived from the actual practice of the profession, whichever is lower.

The actual free legal services in the proposed law shall be exclusive of the 60 hours mandatory legal aid service required under BAR Matter No. 2010 issued by the Supreme Court.

By Aurea Calica
The Philippine Star
Updated January 30, 2010 12:00 AM

See:
http://ph.politicalarena.com/news/content/finally-a-law-from-senator-lito-lapid-legal-assistance/page:6

The Bar speaks

At last, after some silence, the lntegrated Bar of the Philippines (IBP) has adopted the position that “it is unconstitutional for President Arroyo to appoint a successor to Supreme Court Chief Justice Reynato Puno”.

As the mandatory national bar association in the country, the IBP should have been more prompt and pro-active in reacting to the raging and controversial constitutional issue.

Below is a recent news item on the matter. It states that former lBP national president Joel Cadiz has reported that the association had adopted the stand during the recently concluded session of the IBP House of Delegates.

I wonder why the incumbent president did not make the official announcement on the matter and why the full text of the approved resolution has not been published in the Philippine dailies as of today for the information of the entire Philippine Bar and the general public.

I will try to secure a copy of the said resolution to discuss the legal logic behind it.


GMA can't appoint next Supreme Court chief - IBP
By Aurea Calica and Delon Porcalla
(The Philippine Star)
Updated January 31, 2010 12:00 AM


MANILA, Philippines - The Integrated Bar of the Philippines (IBP) said it is unconstitutional for President Arroyo to appoint a successor to Supreme Court (SC) Chief Justice Reynato Puno.

Former IBP national president Joel Cadiz said the group’s House of Delegates came up with the stand – upon motion of IBP governor for Eastern Visayas Rolando Inting – during the annual convention of its officials and members in Puerto Princesa, Palawan.

The motion drew no objections.

Cadiz said the Constitution is explicit against presidential appointments two months before the May 10 elections.

“It is hoped the JBC (Judicial and Bar Council) will listen to all the positions including that of the IBP as regards to the constitutionality of the appointment after Chief Justice Puno’s retirement,” Cadiz said in a phone interview.

“If the JBC determines that it is unconstitutional (for the President to make the appointment), it need not send a list to the President. We hope the JBC will consider all arguments and make that determination that if they don’t submit a list to the President, it agrees on the (unconstitutionality of her appointment),” Cadiz added.

Puno retires on May 17 and an appointment can only be made when there is already a vacancy, according to those opposing Malacañang’s pronouncement that Mrs. Arroyo may appoint a chief justice-in-waiting.

According to Palace critics, May 17 is covered by the two-month election ban on appointments by the President.

SC Senior Associate Justices Antonio Carpio and Conchita Carpio-Morales have applied for the job of Puno but said they would only accept the appointment if it is made by the next president.

Bargaining power

An organization of progressive lawyers believes Mrs. Arroyo wants to appoint the next chief justice so she can have “leverage and bargaining power” in the SC after the end of her term on June 30.

“If she makes the appointment of the next chief justice, all members of the Court will have been her appointees. And that is a huge leverage and bargaining power for political maneuvers and power play,” the National Union of People’s Lawyers (NUPL) said in a statement.

Mrs. Arroyo is expected to face criminal charges for her administration’s alleged abuses.

The NUPL called Mrs. Arroyo’s trying to rush the appointment of Puno’s successor as a “sinister design to perpetuate herself in power, cloak herself with immunity and dangle impunity, debase the post of the Chief Justice and of the SC itself.”

The NUPL, through its acting secretary-general Edre Olalia, said Mrs. Arroyo would certainly face legal problems for “lingering charges of unbridled graft and corruption, rampant human rights violations, and midnight contracts.”

“The teaching of history and experience is that the chief justice is key and crucial in the positions and opinions of the Court notwithstanding the professional origins and political orientation of some or all of its other members,” the NUPL said.

“The Court, especially the chief justice, must not be tainted with any suspicion of partiality or bias. And it would be unfair for the chief justice appointed to be placed in such a situation,” it added.

“A Damocles’ sword is thus left hanging over the heads of whoever will be nominated or wish to be nominated,” it said.

“The NUPL believes that the outgoing President is quivering in her knees and is so desperate that naming and appointing a new chief justice that she expects - rightly or wrongly - to steer the SC to take her side and rescue is an offer she cannot simply refuse.”

Carpio hit

Quezon Rep. Danilo Suarez twitted Carpio for setting a condition for his nomination, saying he knew from the start he would not get Mrs. Arroyo’s appointment.

“He knows the President will proceed in naming the next chief justice and it would probably not be him but Justice (Renato) Corona or somebody else, especially after he gave such an unsavory statement,” Suarez said.

Carpio, the most senior justice after Puno, informed the JBC - the screening committee of the judiciary headed by the SC chief - that he welcomes the nomination, but on the condition that he gets his appointment from the next president and not from Mrs. Arroyo.

Mrs. Arroyo and Carpio had a falling out in 2006 when then Defense Secretary Avelino “Nonong” Cruz resigned from the Cabinet.

Cruz is a senior associate of Carpio’s law firm, along with former Ombudsman Simeon Marcelo.

Sources disclosed that the President does not want to appoint the 60-year-old Carpio, who will outlive the six-year term of the next president. He will reach the mandatory retirement age of 70 on Oct. 26, 2020. It is an open secret that Carpio dislikes the First Family.

Corona, who retires on Oct. 15, 2019, is known to be friendly to Mrs. Arroyo and her family.

The next president will serve for six years or until June 2016.

By tradition, the president appoints the most senior associate justice to be chief justice. But Mrs. Arroyo deviated from this when she appointed Chief Justice Artemio Panganiban, even when Puno was the most senior. Puno nevertheless succeeded Panganiban.

Meantime, Suarez, chairman of the House committee on oversight, said it would be up to the JBC to decide to whom it would submit its shortlist of nominees for the post of chief justice.

“I don’t think the JBC will proceed with the selection process if it does not think President Arroyo has the authority to appoint Puno’s successor,” he said.
“The mere action by the JBC to start preparing the shortlist and eventually submit the same to the President are an indication that she may not be violating any law,” he added.

See:
http://www.philstar.com/Article.aspx?articleId=545394&publicationSubCategoryId=63

State of Philippine education

Citing data from world agencies, the Philippine Daily Inquirer describes the state of Philippine education, thus:

1. “Out of 100 Filipino kids who enter school, only 65 get to finish primary. Back in 1998, 70 got to finish; while only 42 finish high school compared to 54 who did in 1998. Add to that the fact that public expenditure per high school student (as a percentage of GDP per capita) fell from 10.7 percent in 1999 to 9.2 percent in 2004. While the education department has been getting a bigger allocation from the government (from P90 billion in 1999 to P149 billion in 2008), there’s been no significant increase in real terms—P90 billion vs. P92.5 billion for example. The total Education budget’s share to National Government budget has been declining (19 percent in 1999 to a little over 11 percent in 2008).”

2. “Our country’s Education budget is only between 2 percent and 2.5 percent of the country’s GDP, lower than the 4 percent to 5 percent recommended by Unesco; Major East Asian economies allot 5 percent to 6 percent. The country spends the least on educating its kids ($318 per child vs. Thailand’s $1,048).”

3. “The Philippines has the largest student-teacher ratio at elementary level in Southeast Asia, next to Cambodia.”

4. “Estimates peg losses due to overpriced materials at P22 billion: “The amount could have been used to build 4,500 classrooms or procure 11 million desks or 440,000 computers. Or pay teachers a decent wage.”

5. “Together with Indonesia, the Philippines has the worst secondary school enrollment rate among the Asian countries.”

6. “Pres. Gloria Arroyo herself famously solved the shortage of classrooms by decreeing double, even triple shifts, and after so doing, claimed there was no longer a classroom shortage.”

7. “The Presidential Task Force for Education has pointed out that a span of 15 to 16 years must cover education from Grade 1 to the undergraduate level. But the Philippines stands out as having the shortest education cycle in the world: only 14 (10 for basic and four for undergraduate).”

8. “The effect of the Bologna Accord will be to close off many job opportunities to Filipinos. Once adopted by the European Union, we can foresee the United States taking a similar, critical (actually, dismissive) attitude toward Philippine education credentials. We cannot emphasize enough the devastating effect this would have on the employment prospects of Filipinos abroad.


Comment:

My prediction is that, and as repeatedly proved by previous bar examinations data, the quality of legal education in the Philippines would continue to deteriorate to such a degree that the command of the English language and the reasoning power of bar examinees could best be described as embarrassing, at the very least. The net effect thereof would be to produce a poor-quality administration of (in)justice in the country, unless, of course, the leaders of the Philippines exercise the political will to emulate the model and paradigm of Asian countries with reputable educational systems, such as Singapore and Hongkong, and unless Filipino leaders (especially those sitting in top positions in the Executive and the Legislative) stop prostituting and corrupting the budgets for education and social services of the country.


When the educational foundation of a law student (elementary to high school, at least) is poor, you may expect that person to acquire an equally poor collegiate and graduate education precisely because his foundation in basic logic, language, and other learning skills from childhood to adolescence (age 7 to 17) is deficient.


Read the full text of the editorial:


Editorial
Time bomb
Philippine Daily Inquirer
First Posted 22:22:00 01/30/2010


MANILA, Philippines — President Gloria Macapagal-Arroyo has gone on a self-proclaimed “charm offensive,” engaging sectors she’s been generally hostile to if not patently dismissive of. Last week she had an impromptu dinner with members of the Foreign Correspondents Association of the Philippines (Focap). More recently, she embarked on a campus tour to tout her “legacy.” There is something ironic about this campus tour when her legacy in education has been to try to drown out a ticking time bomb by trumpeting propaganda.

Peter Wallace, a business observer, recently released a report titled “Uncertain Times,” summarizing damning findings. Quoting UN Secretary General Ban Ki-moon, he points out that the Philippines is a “striking example of under performance.”

“Today,” Wallace reports, “out of 100 Filipino kids who enter school, only 65 get to finish primary. Back in 1998, 70 got to finish; while only 42 finish high school compared to 54 who did in 1998. Add to that the fact that public expenditure per high school student (as a percentage of GDP per capita) fell from 10.7 percent in 1999 to 9.2 percent in 2004. While the education department has been getting a bigger allocation from the government (from P90 billion in 1999 to P149 billion in 2008), there’s been no significant increase in real terms—P90 billion vs P92.5 billion for example. The total Education budget’s share to National Government budget has been declining (19 percent in 1999 to a little over 11 percent in 2008).”

He also puts forward four damning sets of data:

Our country’s “Education budget is only between 2 percent and 2.5 percent of the country’s GDP, lower than the 4 percent to 5 percent recommended by Unesco; Major East Asian economies allot 5 percent to 6 percent. The country spends the least on educating its kids ($318 per child vs. Thailand’s $1,048).”

The Philippines “has the largest student-teacher ratio at elementary level in Southeast Asia, next to Cambodia.”

Estimates peg losses due to overpriced materials at P22 billion: “The amount could have been used to build 4,500 classrooms or procure 11 million desks or 440,000 computers. Or pay teachers a decent wage.”

And an “IMD report noted that, together with Indonesia, the Philippines has the worst secondary school enrollment rate among the Asian countries.”

These discouraging statistics point to a government treading water instead of actively navigating the challenges of an increasingly complex world. Ms Arroyo herself famously solved the shortage of classrooms by decreeing double, even triple shifts, and after so doing, claimed there was no longer a classroom shortage.

As it is, even as public debates focus on the costs of education, policymakers’ warnings about taking a more strategic approach—and convincing parents and students of the required, tough reforms if Filipinos are to remain competitive domestically and internationally—are being ignored. The President herself seems to be blind and deaf to the findings of the Presidential Task Force for Education, which pointed out that a span of 15 to 16 years must cover education from Grade 1 to the undergraduate level. But the Philippines stands out as having the shortest education cycle in the world: only 14 (10 for basic and four for undergraduate).

We have to keep our kids in school longer just to meet minimum equivalencies around the world.

Take the Bologna Accord. According to educator Isagani Cruz, it comes into effect this year in the European Union. It would essentially not recognize Philippine diplomas because our graduates would have gone through an insufficient number of years in school. The effect of the Bologna Accord will be to close off many job opportunities to Filipinos. Once adopted by the European Union, we can foresee the United States taking a similar, critical (actually, dismissive) attitude toward Philippine education credentials. We cannot emphasize enough the devastating effect this would have on the employment prospects of Filipinos abroad.
But the President has been silent on this score, and her charm offensive in the campuses seems focused on her political objectives for 2010 rather than on improving the quality of Philippine education.

See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20100130-250394/Time-bomb

Transformational vs. transactional leadership

Philippine Supreme Court Chief Justice Reynato Puno spoke on leadership (transformational leadership versus transactional leadership) during a seminar held at the Asian Institute of Management (AIM), Makati City, Philippines. Thus:


“A transformational leader focuses first in transforming self to become selfless, to look out for each other, to promote unity and harmony and to give more importance to the interest of the whole more than its parts.” (citing the late American civil rights leader Martin Luther King Jr. as an example of a transformational leader).

“Transactional leaders motivate followers by appealing to their self-interest. They approach followers on a quid pro quo basis with an eye to exchanging one thing for another, such as jobs for votes or subsidies for campaign contributions. Leadership to them is more of a transaction, more of business where you get your goal through the bargaining of interests.”

“A transactional leader is obsessed with the completion of an objective with little regard to its moral and ethical hazards on his followers.”


See:

SC chief blasts RP leaders
By Dona Pazzibugan, Daxim Lucas
Philippine Daily Inquirer
First Posted 01:25:00 01/30/2010
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100130-250242/SC-chief-blasts-RP-leaders

Sen. Manuel Villar's woes

I am reproducing below in full the recent Philippine Daily Inquirer column of economics professor Solita Monsod in re: presidential candidate and Senator Manuel Villar’s role in alleged expropriation and road construction anomalies which reportedly benefitted his private real estate businesses located in his political turfs in Paranaque City and Las Pinas City amounting to a least Six Billion Pesos.

This raging issue is a politically hot potato that has besieged the normally peaceful and courteous halls of the Philippine Senate for the past days, rendering it virtually paralyzed, immobilized and humiliated in terms of institutional productivity, effectiveness, and public-relations image.

Sen. Villar opted to boycott the senate ad hoc ethics committee of the whole and refused to participate in its proceedings. The committee resolved to sanction (admonish) him and to require him to return to the government the huge amount of the road project that allegedly benefited his businesses.

The Filipino people will decide during the presidential election on May 20, 2010 whether or not they believe the findings and conclusions of the Senate and whether or not they have forgiven Villar.



Get Real
Manny Villar blameless?
By Solita Collas-Monsod
Philippine Daily Inquirer
First Posted 01:06:00 01/30/2010


WHILE the Senate is declaring a moratorium on the discussion of the ethics case against Sen. Manny Villar, here are some incontrovertible facts, presented in Q & A form. The source of the information is also given.

Question: What roadway projects are the subject matter of the Villar ethics controversy? Answer: 1. The Manila Cavite Toll Expressway Project (MCTEP), the original C-5 south extension project, linking SLEX with the Coastal Road; 2. the DPWH C-5 Extension project (CX-5), which together with 3. the Las Piñas-Parañaque Link Project (LPPLP), also links SLEX with the Coastal Road. Source: Senate Report (SR) 780.

Q: Is the CX-5/LPPLP project realignment, as Sen. Jamby Madrigal describes it, or has there been no realignment, as Senator Villar’s allies insist? A: Technically there has been no realignment, because these are two separate roads linking C-5 from SLEX to the Coastal Road. But they are very close together and, in some areas, overlap, as can be ascertained from a site map. Source: interactive map available at www.gmanews.tv

Q: Are there any differences between the MCTEP and the CX-5/LPPLP? A: Yes. 1. The MCTEP is a joint-venture project between the government and a private Malaysian partner, with the government’s financial exposure limited to P2.68 billion for the purchase of the road right-of-way; the private partner is responsible for the construction of the project, for which tolls will be charged. The CX-5/LPPLP is a toll-free, wholly-financed government project costing P6.96 billion; 2. The CX-5/LPPLP is longer than the MCTEP, its extra length essentially covering the LPPLP portion; 3. The CX-5/LPPLP passes through more Villar properties than the MCTEP. Source: DPWH project documents cited as Exhibits A, B and TTTT in SR 780; site map from www.gmanews.tv.

Q: How large are the Villar company landholdings in the immediate vicinity of the questioned road projects? A: At least 50-52 hectares: 40 hectares in the vicinity of the LPPLP; 10-12 hectares in the area between Sucat Road and Multinational Avenue. Source: testimony of Anastacio Adriano Jr., senior vice president and general manager, chief operating officer of Adelfa Properties Inc. and other Villar-owned companies up to 2008; self-styled consultant and political officer of Senator Villar since August 2008. Nota bene: Senate employment records do not include his name. Nota bene: it is not clear whether the 50-52 hectares mentioned above include properties cited in SR 780—roughly 10 hectares in area—to be developed by Villar companies in joint venture with their owners.

Q: What is the involvement of Villar in CX-5 and LPPLP? A: 1. The Project Feasibility Study of the DPWH for CX-5 states: “The conceptualization of and the initial release of funds for the CX-5 Project was initiated by Sen. Manuel Villar whose same efforts also paved the way for the funding of the Las Piñas-Parañaque Link Road [LPPLP]”; 2. Various insertions and amendments (Priority Development Assistance Fund, read pork barrel) in the national government budget over the years 2002-2008 for CX-5 and LPPLP; 3. Adriano (cited above), in the office of and presence of Villar, dictating to the director general of the Senate’s Legislative Budget Research and Monitoring Office (LBRMO) Villar’s proposed amendments to the 2008 budget, including a P400-million appropriation for the CX-5. Source: documents submitted by DPWH, lawyer Yolanda Doblon of the LBRMO, testimony of both Doblon and Adriano, cited in SR 780.

Q: Were the Villar properties bought for road right-of-way overpriced? A: SR 780 argues for the affirmative; PSR 1472 (the resolution signed by Villar and his allies exonerating him from all charges) argues for the negative. This calls for a conclusion of the reader. And to help that along, I have—based on the documented prices and acreage of the lands purchased in connection with the LPPLP—computed the weighted average prices that were paid for the Villar and related properties, and those paid for the non-Villar properties. The results: The Villar/related properties, comprising 23,455 square meters, were bought for P168.1 million. The non-Villar properties, comprising 11,685 square meters, were bought for P22 million. That comes to a weighted average of P7,168 per square meter for Villar’s properties, and P1,880 per square meter for the non-Villar properties. That has to be a statistically significant difference.

Given the above facts—which no one can contest, since they are based on official documents, and not on a he-says-she-says set of assertions—it has to be reasonable to conclude:

1. Since there was already an ongoing project (the MCTEP) linking C-5 to the Coastal Road, it was totally unnecessary to build a second one.

2. Which means that there was a waste of scarce resources. Instead of using only P2.6 billion of government funds for the first project, the government had to spend an additional P6.9 billion for the second, which practically duplicated the first, except for the additional length which happily for Senator Villar, traversed his properties.

3. This unnecessary, wasteful project was certainly Villar’s idea. It is specious to argue that it is a DPWH project. As the DPWH feasibility study states (in black and white), both the CX-5 and the LPPLP were conceived and initially funded by Villar.

4. Villar benefited tremendously from the second project. Certainly, his companies were paid significantly more per square meter for the road right of way (which were mostly bought from him). But that pales into insignificance compared with the tremendous increase in the values of his real estate holdings in the area—at least 50-52 hectares.

Is he blameless? Is the Pope protestant?


See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100130-250236/Manny-Villar-blameless


Addendum:

Was Manny Villar really ever poor?
AS I WRECK THIS CHAIR By William M. Esposo (The Philippine Star) Updated February 07, 2010 12:00 AM


“Nakaligo ka na ba sa dagat ng basura? (Have you bathed in a sea of garbage?)” is the opening line of the jingle of Nacionalista Party presidential candidate Manny Villar which is featured in a television commercial that attempts to project him as having been one of the poorest of the poor. But was Manny Villar really one of the poorest of the poor as what his advertising has been projecting?

A Chair Wrecker reader from Tondo who claimed to know the Villar family when they still resided there debunked that notion of Villar ever having been poor. This information was relayed to yours truly via our response email address.

The former Villar family Tondo neighbor cited reference points to support his assertion that Manny Villar was never really poor — including the claim that Villar’s father used to have a “nikaladong (stainless steel clad)” private Jeep. During the 1950s, a nikaladong private Jeep is a status symbol in Tondo, definitely not the hallmark of a poor household.

Considering how Manny Villar has been dodging the serious issues pertaining to his use of public office in order to add immense benefits and profits to his businesses, your Chair Wrecker decided to do some investigating. Guess what Manny Villar’s online bio revealed:

“Manuel Villar Jr. was born on December 13, 1949 in Tondo, a densely populated district of Manila. He was the second of nine children of Manuel Villar Sr., a government employee, and Curita Bamba, a seafood dealer. As a young boy, he helped his mother sell fish, crabs, and shrimp in Divisoria to help earn money to pay for his education.

Villar finished his education at Holy Child Catholic School in 1962, and finished his high school education at Mapua Institute of Technology in 1966. He attended the University of the Philippines-Diliman and earned his bachelor’s degree in business administration in 1970. He returned to the same school to earn his master’s degree in business administration in 1973.”

In the early 1950s, the rich lived in the big compounds in Ermita and Pasay and what was called New Manila in Quezon City. In Tondo, you found the middle class and the poor as well.

Former president Joseph Estrada also claims roots in Tondo but his family was never poor. Based on his online bio, Villar cannot really justify calling himself poor.

The Villar Tondo home, as shown on his 2009 TV commercials, was made of sturdy materials. It has lasted to this day. His father was employed while his mother operated a fish, crab and shrimp dealership in lucrative Divisoria Market. It may not be Class AB household income but it is definitely not Class E.

Proof that the Villar children were never really wanting is the fact that Manny Villar studied in private schools. The indigent kids went to public school. Enrolling one’s child in a private school is a middle class value and option. The indigent kids who do manage to finish high school would tend to immediately learn a craft in order to be able to earn money right away. Aspiring for a business administration master’s degree is not the usual post high school move of indigent kids.

Villar narrated on his 2009 TV commercial, with Boy Abunda interviewing him, that as a young kid he thought that corned beef was soupy because that was how they used to prepare it at home. This, he claimed, was their way to ensure that everybody had a share.

But the fact is that there are really two ways to cook canned corned beef. One is the dry sautéed type while the other is the soupy type where you can add potatoes and cabbage. Both the rich and the middle class enjoy corned beef both ways.

Also, poor folks, especially a family of eleven, CANNOT AFFORD to eat canned corned beef. For a family of 11 to be eating corned beef confirms that the Villar family is anything but poor. That was the case then and more so now when the poor go hungry or manage to eat only one meal a day. Up to the 1980s, people from the provinces consider it a status symbol to be eating corned beef. That is why canned foodstuffs, especially corned beef, are being displayed in the sala by many households in the provinces for these to be seen by visitors.

For Manny Villar to don this facade of being “poor” once upon a time just to gain political advantage should make every Filipino voter ponder as to what else he would be willing to do just to attain his objective.

See:

http://www.philstar.com/Article.aspx?articleId=547396&publicationSubCategoryId=64

OFWs: hopelessness and solitude.

For legal research purposes of the visitors of this blog, I am quoting the salient parts of two feature articles recently published in the Philippine Daily Inquirer on the topic of social justice for the Overseas Filipino Workers (OFW), the new economic heroes of the Philippines who, for many decades now, continue to live in extreme suffering and solitude in foreign lands due to the gross negligence of the entire Philippine government.

Meanwhile, the empty motherhood statements and promises of corrupt, lazy, and incompetent Filipino politicians and bureaucrats continue unabated for publicity purposes, especially in time for delivery of the annual state of the nation address of the President and in the press releases on the window-dressed performance reports of the Department of Labor and Employment, the Overseas Workers Welfare Administration, the Philippine Overseas Employment Administration, the Department of Foreign Affairs, and other concerned agencies.

Please note that ten percent of the Philippine population live and work abroad in more than 230 countries and that almost one million Filipinos leave the Philippine per annum as foreign contract workers. They remit more than 15 billion US Dollars yearly to their families in the Philippines, thus saving the sagging and depressed Philippine economy from total collapse.

Pres. Gloria Arroyo and her cabinet members accredit to themselves the huge remittances being made by the poor and sufferings OFWs.

As the lonely and hapless OFWs eke out their humble living in God-forsaken foreign lands every day of their hopeless and solitary lives, corrupt Filipino politicians, led by Pres. Gloria Arroyo, enjoy their multi-billion junket foreign trips, pork barrels, kickbacks from government contracts, and comfortable vacations in expensive foreign resorts and spas.


PHILIPPINE DAILY INQUIRER
Sunday, January 17, 2010
Page A19

9 years under GMA: What was then temporary, now an official policy
By Rhodora Alcantara Abano
Center for Migrant Advocacy


1. President Macapagal Arroyo’s Administrative Order No. 247 issued in December 2008 tells the Philippine Overseas Employment Administration (POEA) to “execute a paradigm shift by refocusing its functions from regulation to full blast market development efforts, the exploration of frontier, fertile job markets for Filipino expatriate workers, in the heat of the global economic meltdown when hundreds of Overseas Filipino workers were being laid off elsewhere.

2. This order and the government’s one-million OFW’s per year target for the whole of her term are quite contrary to the intent and spirit of Republic Act N0. 9422, which strengthens the regulatory functions of the POEA.

3. In the administrative order, she went on record on her export policy on OFW’s that presidents since Ferdinand Marcos called temporary.

4. Thus, by 2006, more than a million Filipino workers had been forced to migrate every year. Around half are women. As of December 2007, the government estimated the number of OFWs at 8.7 million, around 10 percent of the country’s population. In 2008, 1,236,013 more followed. Sixty percent of OFW’s leaving for land based jobs renew their work contracts several times, working for as long as 25 years, instead of coming home for good.

5. RA 8042, or the Migrant Workers and Overseas Filipinos Act of 1995, commits in Sec. 2 (b) thus: “The state shall afford full protection to labor, local and overseas, organized and unorganized…Towards this end, the state shall provide adequate and timely social, economic and legal services to Filipino migrant workers.” Further in Sec. 27: “The protection of the Filipino migrant workers and the promotion of their welfare…shall be the highest priority concerns of the secretary of Foreign Affairs and the Philippine foreign service posts.

6. This is not surprising. OFWs are in 238 foreign countries and territories worldwide. But the Philippines has only 89 diplomatic posts, broken down as follows: 63 embassies, 24 consulates and 2 permanent missions, excluding the three offices of the Manila Economic and Cultural Office in Taiwan, around the world.

7. In 20 posts with OFWs numbering up to 540,000 and up to 13, 048 cases to attend to, according to the 2005-2006 COA report, only two to six POLO/Overseas Workers Welfare Administration personnel were assigned. OFWs and POLO/OWWA personnel had a ratio, ranging from 1:5,712 to 1:100,000. The ratio of POLO/OWWA personnel to cases was anywhere from 1:84 to 1:6,524.

8. Disparity in personnel at the posts may have contributed to the delayed resolution of OFW cases.

9. The embassy in Riyadh, Saudi Arabia also covers the OFWs in Yemen. Two posts are in charge of almost half a million OFWs in UAE.

10. The post in Lebanon where there were around 25,000, mostly domestic workers, was also in charge of OFWs in Syria, until the Philippine government opened a post in Syria in 2008.

11. The Abuja post in Nigeria covers 19 countries in Africa, the one in Nairobi in Kenya, 16 countries; Tripoli in Libya, 10; and that in Pretoria, South Africa, nine. Even the embassy in Washington D.C. covers 18 countries and territories in the Americas. The embassy in Mexico, eight.

12. There is this post that retreated from Baghdad during the Iraq War, to Amman, Jordan, leaving behind OFWs who were not supposed to be there in the first place because of the deployment ban.

13. Or the post is overstretched to attend to so many OFWs of so many other countries and/or territories. Or the post is situated far from where the OFWs are, as in the case of embassy in Kuala Lumpur that is miles away from some 100,000 Filipinos in Sabah. So how could you expect a maid in the country side to see a Philippine labor attaché in a faraway city?

14. First, OFW organizations and migrant NGOs have been calling on the government to seriously attend to a national development plan that would generate sufficient jobs with decent wages and benefits for its fast growing workers.

15. Second, a culture of public service should be deeply inculcated in the minds and hearts of all DFA personnel so that embassies and consulates abroad are genuine “centers of care” for Filipinos, where they can trustfully seek assistance from public servants instead of feel like second-class citizens begging for crumbs.

16. Finally, embassies and consulate officials and personnel should be adequately oriented on the particularities and peculiarities of migrant issues, including the laws of the host countries.


PHILIPPINE DAILY INQUIRER
Sunday, January 24, 2010
Page A19

PRICE TO PAY: ABANDONED WIVES, ORPHANED CHILDREN
By Roy V. Seneres



1. Of the eight million OFWs, there are one million professionals such as doctors, engineers, architects, nurses, seafarers and others; skilled like master mechanics, electricians, carpenters—two million; semi-skilled like hotel workers, restaurant waiters and others—three million; domestic helpers, caregivers and others—two million.

2. The two million domestic helpers are females. They are the ones who, by the very environment of their jobs, are highly vulnerable to all sorts of abuses, from non-payment or under payment of salaries, to physical and verbal abuse, acts of lasciviousness, and worse, rapes. The abusers, criminals as they are, do not discriminate whether the victims of their bestial instincts are virgin or not; married or unmarried; teeners or in their 40’s; Christians or Muslims or neither.

3. After solving the problems of some of them, others would take their place. At present, the population of Filipino domestic helpers in UAE has sextupled to 100,000 out of total population of 300,000. The total number of domestic helpers world wide in 1989 was only half a million as compared to today’s total of two million.

4. This government, wittingly or unwittingly, has been playing the role of providers of the insatiable sexual appetites of rapists and perverts all over the world.

5. The law is clear. Section 27 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipino Act, says: “The protection of the Filipino migrant workers and the promotion of their welfare, in particular, and the protection of dignity and fundamental rights and freedoms of the Filipino citizens abroad, in general, shall be the highest priority concerns of the secretary of foreign affairs and the Philippine foreign service posts.” The other two concerns of the department of Foreign Affairs are: economic diplomacy and furtherance of national security.

6. Notwithstanding the clear mandate of our DFA, we have foreign secretary in person of Alberto Romulo who is apparently clueless about his role as the vicar of Philippine foreign policy. It is of public knowledge that it is Vice President Noli de Castro who is playing out Romulo’s role insofar as the OFW’s are concerned.

7. We fervently wish this government shed itself off its affliction and issue forthwith several directives in line with Section 27 of Republic Act 8042: One, to issue an executive order requiring ambassadors to exercise the extra ordinary diligence to a good father of a family in over seeing the welfare and protection of OFWs in their host countries. Their job performance should be measured on how true and dedicated they and their subordinates are in discharging their roles as surrogate fathers and substitute families of the OFWs; two, the government must like wise put more teeth to the citizen’s arrest law by requiring the police to swiftly come to the assistance of victims of illegal recruitment who decide to arrest on the spot their illegal recruiters; three, the government should authorize ambassadors and consuls to withhold approval or cancel the passports of irresponsible OFW husbands and fathers until they resume their support to their dependents.

8. Four, using its profound power and influence upon every sector in society, the government should prod big businesses, especially those who have tremendously benefited from OFW remittances like Henry Sy’s SM, Lucio Tan’s airlines, the Ayalas and the Villars, Gotianum’s real estate conglomerates, many Pangilinan’s and the Indonesians’ PLDT, Globe’s and the Lhuilliers’ remittance companies and other banks owned by Tan’s, Sys, Yuchengcos, to contribute to a private fund that will underwrite the education of children who have been orphaned y the death of their fathers or mothers overseas.

9. Five, the government must acknowledge in more concrete terms the major OFW contributions to the economy by placing them under the coverage of the Social Security system to enable them to avail a loan, and most especially, its retirement benefits. The government must play the role of being their surrogate employer by paying the counterpart amount that employers in the Philippines are normally required to pay; six, government must regulate the rates of remittance fees; seven, government must augment the present budget of embassies, consulates and overseas labor offices. What they have there now, to use a metaphor, are tricycles, when what they need are buses to ferry out of danger thousands of distressed OFWs; eight, local governments must establish special desks fro the spouses and children of absent OFWs who have lost a pillar, permanently or temporarily, due to overseas employment.

HB No. 6822: proposed expanded powers of CHR

Apropos to my previous entry on the Commission on Human Rights (CHR), I am quoting hereinbelow the salient parts of the proposed “Commission on Human Rights Act of 2009” docketed as House Bill No. 6822 (Committee Report No. 2387) of the House of Representatives of the Philippine Congress.

I wish to focus only on the expanded powers of the CHR which may be relevant to Filipino trial lawyers and jurists and for legal research purposes of the visitors of this blog.

The Senate has yet to act on the bill to complete the entire legislative process on the matter.

As I stated in a previous entry, I doubt if the Senate would be able to finish its job, considering the intense political jealousies and hatred that now permeate its haunted and disgraceful halls in the midst of the fast approaching May 2010 national elections.

The new and expanded powers granted by the proposed act to the CH are impressive. They seem to be patterned after the nature of the powers of the Ombudsman under existing laws and the spirit of the provisions of the Supreme Court resolutions on the Writ of Amparo and the Writ of Habeas Data. For instance:

1. The Commission may deputize government prosecutors or private lawyers, who shall be under the direct control and supervision of the Commission, for the prosecution of human rights cases under Section 26 hereof;

2. Any investigation being conducted by any other body shall not be a bar to the investigation of the Commission;

3. It may compel the attendance of witnesses and the production of evidence, to place the witnesses under oath or affirmation, issue subpoenas and take testimony in any investigation or inquiry;

4. It may cite and punish for direct or indirect contempt any person for violations of the Commission’s lawful orders. The Rules of Court shall apply suppletorily to the Rules of the Commission.

5. The Commission may issue:

(a) Injunction orders directing any member of the government’s military or police forces, as well as public officials or employees, or any person acting under their control and supervision, to desist from hiding, transferring or torturing a detainee and to allow access to said detainee by the Commission, his/her counsel, physician and
relatives;

(b) Orders directing the government official or employee, or any person in control of the premises of any government agency or office, specifically police and military detention facilities, secret detention places, stations, installations, camps, bases and training
schools, as well as private land and property, to permit the inspection of said premises;

(c) Orders to transfer persons deprived of their liberty and in danger of reprisal due to the filing of a complaint in connection with his/her detention, in order to secure safety of his/her person;

(d) Restraining orders restricting respondent, his/her unit or command from entering the immediate vicinity of the affected area or residence and from searching the victim or his/her belongings; and

(e) General writs of injunction ordering the respondent to refrain from committing any and all acts that would tend to cause irreparable harm and have the immediate effect of rendering the investigation of the Commission moot and academic.

6. The Commission may also issue:

(a) Mandatory protection orders directing government security forces, other appropriate government agencies or private institutions to provide specific protection to victims of human rights violations;

(b) Orders to deputize government offices and private institutions for the purpose of providing protection; and

(c) Orders to deputize government and private lawyers as counsels de officio to ensure that the human rights of the victim are not further violated.

7. The Commission may grant immunity from prosecution to any person whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding under such terms and conditions as it may determine, taking into account pertinent provisions of the Rules of Court and its own rules. The immunity granted shall be revoked on account of evidence presented to be true but which is, in fact, false and spurious, and without which the Commission would not have granted immunity.

8. With the exception of Members of Congress, those of the Judiciary and impeachable officials, the Commission may preventively suspend any officer or employee, after summary hearing/s, pending an investigation, if in its judgment: (a) the evidence of guilt is strong; (b) the charges would warrant removal from the service; and (c) the respondent’s continued stay in office may prejudice the case filed against him/her.

9. The Commission shall exercise concurrent prosecutorial powers.

In the event of the failure of the prosecution agency of the government to initiate a preliminary investigation within ninety (90) working days from its receipt of the case recommended for prosecution by the Commission, the latter shall conduct the preliminary investigation and, upon a finding of probable cause, refer the same to the appropriate prosecution agency for the filing of the information and prosecution of the case.

In case of failure of the prosecution agency to file the information within thirty (30) calendar days upon receipt of the resolution of the Commission finding probable cause, the latter shall exercise concurrent prosecutorial powers by filing the information in court on its own and prosecuting the case. For this purpose, the Commission shall have the power to deputize government prosecutors or private lawyers who shall be under its
direct control and supervision.

(Comment: I feat that this provision will be rendered practically useless if the in-house preliminary investigations of the Department of Justice are delayed for good or corrupt reasons or are subjected to dilatory internal and external appeals. The Commission should be given exclusive original jurisdiction to conduct preliminary investigations of human rights violations that are criminal in nature. – Atty. M. J. Laserna Jr.).

10. The Commission shall implement and manage a witness protection program, including the provision of security, shelter, relocation and livelihood assistance to witnesses and their families. It shall strengthen its financial assistance program to victims of human rights violations and their families.


11. The Commission may recommend the creation of ad hoc Truth Commissions on matters of transcendental importance, such as widespread and systematic human rights violations occurring over prolonged periods of time, or under extraordinarily repressive conditions, or attended by a culture of impunity that is instigated, inspired or orchestrated by public officials, in conspiracy with government security forces or State-sponsored armed groups.


Please note that orders, decisions or findings of the Commission, including determination of probable cause, shall be appealed to the Court of Appeals on both questions of fact and law (Rule 43), or on certiorari to the Supreme Court on pure questions of law (Rule 45).

No writ of injunction against the Commission in the performance of its functions shall be issued other than those emanating from the Court of Appeals or the Supreme Court only.

Also, the investigation of human rights violations shall not be subject to any statute of limitations or prescriptive period.


Quoted verbatim below are the most important sections of HB No. 6822, thus:


1. SEC. 3. Definition of Terms. – For purposes of this Act, “human rights”
shall include those found in Article III of the Constitution and those affirmed
and recognized by the State in the following international covenants: the
Universal Declaration of Human Rights (1948); the International Covenant on
Civil and Political Rights (1976); and the International Covenant on Economic,
Social and Cultural Rights (1976), and all other international instruments on
human rights to which the Philippines is a signatory.

2. SEC. 13. The Commission as an Independent Office. – The
Commission is an independent constitutional office. It shall not be subject to
instructions or orders from the President of the Philippines, Congress or the
Judiciary, except in cases provided in the Constitution with regard to the
appointment of its Chairperson and Members, legislation affecting the exercise
of its powers and functions, and judicial review of the legality of its acts,
orders, resolutions or decisions.

3. SEC. 15. Fiscal Autonomy. – The Commission shall enjoy full fiscal
autonomy. The approved annual appropriations of the Commission shall be
automatically and regularly released.

4. SEC. 16. General Powers and Functions of the Commission. – The
Commission shall have the following general powers and functions:

(a) Investigate, on its own or on complaint by any party, all forms of
human rights violations;

(b) Adopt its operational guidelines and rules of procedure and cite for
direct and indirect contempt those in violation thereof or of its
lawful orders in accordance with the Rules of Court;

(c) Provide appropriate legal and preventive measures for the
protection of human rights of all persons within the Philippines, as
well as Filipinos residing abroad;

(d) Provide legal aid services to the underprivileged whose human
rights have been violated or need protection;

(e) Exercise unhampered and unrestrained visitorial powers over jails,
prisons or detention facilities;

(f) Establish a continuing program of research, education and
information to enhance respect for the primacy of human rights;

(g) Recommend to Congress effective measures to promote human
rights and to provide for compensation to victims of violations of
human rights or their families;

(h) Monitor the Philippine government’s compliance with international
treaty obligations on human rights;

(i) Grant immunity from prosecution to any person whose testimony or
possession of documents or other evidence is necessary or
convenient to determine the truth in any investigation conducted by
it or under its authority;

(j) Request the assistance of any department, bureau, office or agency
in the performance of its functions;

(k) Deputize government prosecutors or private lawyers, who shall be
under the direct control and supervision of the Commission, for the
prosecution of human rights cases under Section 26 hereof;

(l) Accredit national nongovernment and peoples’ organizations
involved in human rights promotion, protection and advocacy,
including for purposes of visiting persons arrested, detained or
under custodial investigation;

(m) Ensure that the status, rights and interests of children are upheld in
accordance with the Constitution, laws and international
instruments on human rights;

(n) Appoint its officers and employees in accordance with law; and

(o) Perform such other duties and functions as may be provided by law.

5. SEC. 17. Investigative Powers and Functions. – The Commission shall
exercise primary and original jurisdiction to investigate, on complaint or motu
proprio, cases of human rights violations to include civil, political, economic,
social and cultural rights. In the exercise of its investigative function, the
Commission shall have the following powers:

(a) Act promptly on complaints filed in any form or manner by any
person, whether directly affected or not, and on a finding of human rights
violation, recommend the filing of appropriate administrative, civil and/or
criminal action. Any investigation being conducted by any other body shall
not be a bar to the investigation of the Commission;

(b) Compel the attendance of witnesses and the production of evidence,
to place the witnesses under oath or affirmation, issue subpoenas and take
testimony in any investigation or inquiry;

(c) Issue orders and directives constituting preventive and legal
measures as provided for under Sections 19 and 20, respectively;

(d) Provide protection and financial assistance to witnesses to ensure
their attendance in investigations and production of evidence;

(e) Delegate to its deputies, investigators or representatives such
authority or duty as shall ensure the effective exercise or performance of its
investigative function;

(f) Require the assistance of any officer or employee of any
department, bureau or office, subdivision, agency or instrumentality of the
government, including government-owned or -controlled corporations and
local governments;

(g) Deputize lawyers or legal aid groups, medical organizations, as well
as government agencies and offices, to provide assistance in the exercise of its
investigative functions;

(h) Make the results and findings of its investigations available and
accessible to the public; and

(i) Cite and punish for direct or indirect contempt any person for
violations of the Commission’s lawful orders. The Rules of Court shall apply
suppletorily to the Rules of the Commission.

6. SEC. 18. Imprescriptibility of Human Rights Violations. – The
investigation of human rights violations shall not be subject to any statute of
limitations or prescriptive period.

7. SEC. 19. Scope of Preventive Measures. – The preventive measures
under Article XIII, Section 18(3) of the Constitution that may be issued by the
Commission in the investigation of cases involving all forms of human rights
violations shall include the following:

(a) Injunction orders directing any member of the government’s
military or police forces, as well as public officials or employees, or
any person acting under their control and supervision, to desist
from hiding, transferring or torturing a detainee and to allow access
to said detainee by the Commission, his/her counsel, physician and
relatives;

(b) Orders directing the government official or employee, or any
person in control of the premises of any government agency or
office, specifically police and military detention facilities, secret
detention places, stations, installations, camps, bases and training
schools, as well as private land and property, to permit the
inspection of said premises;

(c) Orders to transfer persons deprived of their liberty and in danger of
reprisal due to the filing of a complaint in connection with his/her
detention, in order to secure safety of his/her person;

(d) Restraining orders restricting respondent, his/her unit or command
from entering the immediate vicinity of the affected area or
residence and from searching the victim or his/her belongings; and

(e) General writs of injunction ordering the respondent to refrain from
committing any and all acts that would tend to cause irreparable
harm and have the immediate effect of rendering the investigation
of the Commission moot and academic.

8. SEC. 20. Scope of Legal Measures. – The legal measures under Article
XIII, Section 18(3) of the Constitution that may be provided by the
Commission shall include the following:

(a) Mandatory protection orders directing government security forces,
other appropriate government agencies or private institutions to
provide specific protection to victims of human rights violations;

(b) Orders to deputize government offices and private institutions for
the purpose of providing protection; and

(c) Orders to deputize government and private lawyers as counsels de
officio to ensure that the human rights of the victim are not further violated.

9. SEC. 21. Grant of Immunity. – The Commission may grant immunity
from prosecution to any person whose possession and production of documents
or other evidence may be necessary to determine the truth in any hearing,
inquiry or proceeding under such terms and conditions as it may determine,
taking into account pertinent provisions of the Rules of Court and its own
rules. The immunity granted shall be revoked on account of evidence presented
to be true but which is, in fact, false and spurious, and without which the
Commission would not have granted immunity.

10. SEC. 22. Preventive Suspension. – With the exception of Members of
Congress, those of the Judiciary and impeachable officials, the Commission
may preventively suspend any officer or employee, after summary hearing/s,
pending an investigation, if in its judgment: (a) the evidence of guilt is strong;
(b) the charges would warrant removal from the service; and (c) the
respondent’s continued stay in office may prejudice the case filed against
him/her.

In the case of suspended elective official/s, upon expiration of his/her
preventive suspension, he/she shall be deemed reinstated in office without
prejudice to the continuation of the proceedings against him/her which shall be
terminated within one hundred twenty (120) days from the time he/she was
formally notified of the case against him/her.

The preventive suspension shall be immediately executory, unless
restrained by the Court of Appeals or the Supreme Court, and shall continue
until the case is terminated by the Commission: Provided, That said suspension
shall not be more than three (3) months without pay, except when the delay in
the disposition of the case by the Commission is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.

Any abuse of the exercise of the power of preventive suspension shall
be penalized as abuse of authority.

The respondent official preventively suspended from office shall receive
no salary or compensation during such suspension; but upon subsequent
exoneration and reinstatement, he/she shall be paid full salary or compensation
including such emoluments accruing during such suspension.

The respondent shall be accorded full opportunity to appear and defend
himself/herself in person or by counsel, to confront and cross-examine the
witnesses against him/her, and to require the attendance of witnesses and the
production of documentary evidence in his/her favor through the compulsory
process of subpoena or subpoena duces tecum.

11. SEC. 23. Referral to Disciplining Authority. – The Commission may
direct the disciplining authority to take appropriate action against a public
officer or employee found guilty of committing violations of human rights and
recommend his/her removal, suspension, demotion, censure, imposition of fine
or prosecution and to ensure compliance by requiring the officer concerned to
report on his/her action within thirty (30) days from receipt of the
recommendation of the Commission. Failure to act or comply with said
recommendation shall be actionable by mandamus.

For this purpose, every case on which the Commission has rendered a
resolution or recommendation adverse to a public official shall be transmitted
to the head of the department, agency or instrumentality, or of the province,
city or municipality concerned for immediate action, as may be necessary.

12. SEC. 26. Concurrent Prosecutorial Powers and Functions. – The
Commission shall exercise concurrent prosecutorial powers and, functions as
herein provided.

In the event of the failure of the prosecution agency of the government
to initiate a preliminary investigation within ninety (90) working days from its
receipt of the case recommended for prosecution by the Commission, the latter
shall conduct the preliminary investigation and, upon a finding of probable
cause, refer the same to the appropriate prosecution agency for the filing of the
information and prosecution of the case.

In case of failure of the prosecution agency to file the information
within thirty (30) calendar days upon receipt of the resolution of the
Commission finding probable cause, the latter shall exercise concurrent
prosecutorial powers by filing the information in court on its own and
prosecuting the case. For this purpose, the Commission shall have the power to
deputize government prosecutors or private lawyers who shall be under its
direct control and supervision.

This section shall apply in cases where the offender is a public officer as
defined under Article 203 of Republic Act No. 3815, otherwise known as the
Revised Penal Code, as amended, and acting in his/her capacity as such, or any
person acting on behalf or under the immediate control of the State and its
agents and where the human rights violation constitutes a criminal offense
under the Revised Penal Code, as amended, and special laws, as follows:

(a) Use of physical, psychological and degrading punishment, torture,
force, violence, threats and intimidation;

(b) Extrajudicial killings, summary executions and “massacres” or
mass killings;

(c) Violations of right to be secure from unreasonable searches and
seizures, including involuntary or enforced disappearances;

(d) Violations of the rights of persons arrested, detained or under
custodial investigation, including deprivation of the rights of
political detainees;

(e) Violations of the right to a speedy, impartial and public trial or
disposition of cases;

(f) Hamletting, forced evacuation or eviction, illegal demolition,
development aggression and other violations of the right to travel
and to freely choose one’s abode and change the same;

(g) Violations of the right to peaceably assemble, free association and
to petition the government for redress of grievances;

(h) Violations of the right to worship and the free exercise of a religion;

(i) Violations of the right to privacy;

(j) Violations of civil and political rights of persons suspected of,
accused of, or detained for the crime of terrorism or conspiracy to
commit terrorism;

(k) Political, religious, racial, ethnic, social or sexual persecution,
oppression or harassment committed with acts constituting offenses
punished under the Revised Penal Code, as amended, and special
laws; and

(l) In general, any crime penalized under the Revised Penal Code, as
amended, or special laws when committed within the context of or
resulting to human rights violations.

13. SEC. 27. When Committed by Non-State Actors. – The preceding
section shall also apply when the violation is committed by non-state actors.
Non-state actors are persons, other than public officers, belonging to and
acting on behalf or under the immediate control of a juridical or non-juridical
person, whether legitimate or illegitimate including, but not limited to, the
following:

(a) Armed groups, warlords and private armies;
(b) Criminal organizations and groups; and
(c) Multinational, foreign and domestic corporations, and other
business entities.

14. SEC. 28. When Committed Against Vulnerable Persons. – The
concurrent prosecutorial powers of the Commission shall likewise apply in the
investigation and prosecution of the following offenses as penalized under the
Revised Penal Code, as amended, and special laws when committed by any
person against any member or group of vulnerable persons, as defined herein:

(a) Involuntary servitude constituting Crimes Against Personal Liberty
and Security;

(b) Crimes penalized under Republic Act No. 7610, or the “Special
Protection of Children Against Abuse, Exploitation and Discrimination Act”;

(c ) Crimes penalized under Republic Act No. 9262, or the
“Anti-Violence Against Women and Their Children Act of 2004”; and

(d) Crimes penalized under Republic Act No. 8371, or “The
Indigenous Peoples Rights Act of 1997”.

Vulnerable persons shall include those identified as such in international
human rights treaties, specifically children, women, elderly, persons with
disabilities, migrant workers, indigenous peoples and ethnic and religious
minorities.

15. SEC. 36. Witness Protection Program. – In the conduct of its
investigations, the Commission shall implement and manage a witness
protection program, including the provision of security, shelter, relocation and
livelihood assistance to witnesses and their families.

16. SEC. 37. Financial Assistance Program. – The Commission shall
strengthen its financial assistance program to victims of human rights
violations and their families.

The funds necessary for the initial implementation of the Witness
Protection and Financial Assistance Program shall be taken from the current
year’s appropriation of the Commission. Thereafter, the funding requirement
shall be included in the annual General Appropriations Act.

The Commission shall adopt operational guidelines on the
implementation and management of these programs which shall be included in
its implementing rules and regulations.

17. SEC. 38. Legal Assistance Program. – The Commission shall
implement a legal assistance program to benefit victims of human rights
violations consisting of the provision of legal services in coordination with
human rights organizations and lawyers’ groups, the Integrated Bar of the
Philippines and Philippine law schools with legal aid programs.

Upon its discretion, the Commission may also provide allowances and
incentives to private lawyers or lawyers’ groups who would render their
professional services on behalf of the Commission in any court proceeding
involving the litigation of human rights cases, subject to auditing rules and
regulations.

18. SEC. 39. Protection of Filipinos Abroad. – The Commission shall
undertake measures for the protection and promotion of human rights of
Filipinos living abroad. It may assign organic personnel to act as Human
Rights Attachés in Philippine embassies or consulates or deputize Philippine
Embassy or Consulate officers, resident private individuals of known probity
and active involvement in human rights work, or foreign-based human rights
and migrant workers’ nongovernment organizations in countries where the
incidence of human rights violations of Filipinos is widespread and
commonplace, including traditional host countries of overseas Filipino
workers.

The assigned personnel acting as Human Rights Attachés or deputized
individuals of the Commission shall monitor the status of human rights of
Filipinos living abroad and establish networks among Filipinos for purposes of
monitoring and reporting cases of human rights violations, as well as for
providing counseling and financial assistance to victims. They shall
immediately notify the concerned Embassy officials of incidents of human
right violations of Filipinos and provide immediate assistance to victims.

19. SEC. 40. Creation of Ad Hoc Truth Commissions. – The Commission
may recommend the creation of ad hoc Truth Commissions on matters of
transcendental importance, such as widespread and systematic human rights
violations occurring over prolonged periods of time, or under extraordinarily repressive
conditions, or attended by a culture of impunity that is instigated,
inspired or orchestrated by public officials, in conspiracy with government
security forces or State-sponsored armed groups.

20. SEC. 41. Issuance of Certifications. – The Commission shall issue
certifications to members of the military, police and other law enforcement
agencies prior to their promotion or assumption to office. The Commission
shall clearly indicate in its certification if the applicant has a pending case with
them and shall state the nature and status of the case/s filed.

The Commission shall also make its own recommendations to the
Commission on Appointments prior to the confirmation of other officials other
than those mentioned in the preceding paragraph, who are being considered for
promotion or appointment.

This provision shall also apply to other government officers with Salary
Grade Twenty-seven (27) or its equivalent and higher.

It may also issue certifications for purposes of trainings, local or foreign
study grants and education purposes, upon proper request made by the
applicant.

21. SEC. 42. Appeals; Prohibition Against Injunction. – Orders, decisions
or findings of the Commission, including determination of probable cause,
shall be appealed to the Court of Appeals on both questions of fact and law, or
on certiorari to the Supreme Court on pure questions of law. No writ of
injunction against the Commission in the performance of its functions shall be
issued other than those emanating from the Court of Appeals or the Supreme
Court.

22. SEC. 43. Protection from Harassment Suits; Dismissal. – The
Chairperson, Members, officers and employees of the Commission shall be
free from any administrative, civil or criminal liability in the regular
performance of their functions. Personal legal actions brought against them
shall be dismissed where it appears that the same was filed for acts committed
in the regular performance of said functions.

R.A. No. 9851: international humanitarian law.

For legal research purposes of the visitors of this blog, the salient provisions of the newly approved REPUBLIC ACT NO. 9851, known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity", are digested hereinbelow.

Section 2 (policy statement) of the act declares that:

(a) The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to a policy of peace, equality, justice, freedom, cooperation and amity with all nations.

(b) The state values the dignity of every human person and guarantees full respect for human rights, including the rights of indigenous cultural communities and other vulnerable groups, such as women and children;

(c) It shall be the responsibility of the State and all other sectors concerned to resolved armed conflict in order to promote the goal of "Children as Zones of Peace";

(d) The state adopts the generally accepted principles of international law, including the Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and international humanitarian law, as part of the law our nation;

(e) The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes;

(f) The State shall guarantee persons suspected or accused of having committed grave crimes under international law all rights necessary to ensure that their trial will be fair and prompt in strict accordance with national and international law and standards for fair trial, It shall also protect victims, witnesses and their families, and provide appropriate redress to victims and their families, It shall ensure that the legal systems in place provide accessible and gender-sensitive avenues of redress for victims of armed conflict, and

(g)The State recognizes that the application of the provisions of this Act shall not affect the legal status of the parties to a conflict, nor give an implied recognition of the status of belligerency

Under Section 4, "war crimes" or "crimes against International Human Humanitarian Law" means:

In case of an international armed conflict , grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under provisions of the relevant Geneva Convention:

(1) Willful killing;
(2) Torture or inhuman treatment, including biological experiments;
(3) Willfully causing great suffering, or serious injury to body or health;
(4) Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;
(5) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(6) Arbitrary deportation or forcible transfer of population or unlawful confinement;
(7) Taking of hostages;
(8) Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power; and
(9) Unjustifiable delay in the repatriation of prisoners of war or other protected persons.

In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely , any of the following acts committed against persons taking no active part in the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause;

(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;
(2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;
(3) Taking of hostages; and
(4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely:

(1) Internationally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(2) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(3) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with intentional law;

(4) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(5) Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated;

(6) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and causing death or serious injury to body or health .

(7) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making non-defended localities or demilitarized zones the object of attack;

(8) Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at discretion;

(9) Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs under International Humanitarian Law, resulting in death, serious personal injury or capture;

(10) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether such building or place has been used to make an effective contribution to military action, it shall be presumed not to be so used;

(11) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons;

(12) Killing, wounding or capturing an adversary by resort to perfidy;
(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemy's property unless such destruction or seizure is imperatively demanded by the necessities of war;

(15) Pillaging a town or place, even when taken by assault;

(16) Ordering the displacements of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(17) Transferring, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(18) Committing outrages upon personal dignity, in particular, humiliating and degrading treatments;

(19) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Conventions;

(20) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(21) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions and their Additional Protocols;

(22) In an international armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;

(23) In an international armed conflict, declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(24) Committing any of the following acts:

(i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces;
(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces; and
(iii) Using children under the age of eighteen (18) years to participate actively in hostilities; and

(25) Employing means of warfare which are prohibited under international law, such as:

(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(iii) Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions; and
(iv) Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict.

Under Section 5 , "genocide" means any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such:

(1) Killing members of the group;
(2) Causing serious bodily or mental harm to members of the group;
(3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(4) Imposing measures intended to prevent births within the group; and
(5) Forcibly transferring children of the group to another group.

It shall be unlawful for any person to directly and publicly incite others to commit genocide.

Under Section 6, "other crimes against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this Act;

(i) Enforced or involuntary disappearance of persons;
(j) Apartheid; and
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Under Section 7, any person found guilty of committing any of the acts provided under Sections 4, 5 and 6 of the act shall suffer the penalty of reclusion temporal in its medium to maximum period and a fine ranging from One hundred thousand pesos (Php 100,000.00) to Five hundred thousand pesos (Php 500,000.00).

When justified by the extreme gravity of the crime, especially where the commission of any of the crimes specified herein results in death or serious physical injury, or constitutes rape, and considering the individual circumstances of the accused, the penalty of reclusion perpetua and a fine ranging from Five hundred thousand pesos (Php 500,000.00) to One million pesos (Php 1,000,000.00) shall be imposed.

Any person found guilty of inciting others to commit genocide referred to in Section 5(b) of this Act shall suffer the penalty of prision mayor in its minimum period and a fine ranging from Ten thousand pesos (Php 10,000.00) to Twenty thousand pesos (Php 20,000.00).

In addition, the court shall order the forfeiture of proceeds, property and assets derived, directly or indirectly, from that crime, without prejudice to the rights of bona fide third (3rd) parties. The court shall also impose the corresponding accessory penalties under the Revised Penal Code, especially where the offender is a public officer.

Section 8 provides that in addition to existing provisions in Philippine law on principles of criminal responsibility, a person shall be criminally liable as principal for a crime defined and penalized in the act if he/she:

(1) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(2) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(3) In any other way contributes to the commission or attempted commission of such a crime by a group of person acting with a common purpose. Such contribution shall be intentional and shall either:

(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime defined in this Act; or
(ii) be made in the knowledge of the intention of the group to commit the crime.

A person shall be criminally liable as accomplice for facilitating the commission of a crime defined and penalized in the act if he/she aids, abets or otherwise assists in its commission or attempted commission, including providing the means for its commission.

A person shall be criminally liable for a crime defined and penalized in the act if he/she attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intention. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Act for the attempt to commit the same if he/she completely and voluntarily gave up the criminal purpose.

Section 9 states that the act shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under the act, nor shall it, in and of itself, constitute a ground for reduction of sentence. However:

(a) Immunities or special procedural rules that may be attached to the official capacity of a person under Philippine law other than the established constitutional immunity from suit of the Philippine President during his/her tenure, shall not bar the court from exercising jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a person under international law may limit the application of the act, but only within the bounds established under international law.

Section 10 provides that in addition to other grounds of criminal responsibility for crimes defined and penalized under the act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;
(b) That superior failed to take all necessary and reasonable measures within his/her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Section 11 provides that the crimes defined and penalized under the act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription.

Section 12 provides that the fact that a crime defined and penalized under the act has been committed by a person pursuant to an order of a government or a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless all of the following elements occur:

(a) The person was under a legal obligation to obey orders of the government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.

For the purposes of this section, orders to commit genocide or other crimes against humanity are manifestly unlawful.

Section 13 provides that in addition to existing provisions in Philippine law for the protection of victims and witnesses, the following measures shall be undertaken:

(a) The Philippine court shall take appropriate measures to protect the safety, physical and physiological well-being, dignity and privacy of victims and witnesses. In so doing, the court shall have regard of all relevant factors, including age, gender and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial;

(b) As an exception to the general principle of public hearings, the court may, to protect the victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of the victim of sexual violence or a child who is a victim or is a witness, unless otherwise ordered by the court, having regard to all the circumstances, particularly the views of the victim or witness;

(c) Where the personal interests of the victims are affected, the court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the court in manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the court considers it appropriate in accordance with the established rules of procedure and evidence; and

(d) Where the disclosure of evidence or information pursuant to the act may lead to the grave endangerment of the security of a witness for his/her family, the prosecution may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial.

Section 14 provides that in addition to existing provisions in Philippine law and procedural rules for reparations to victims, the following measures shall be undertaken:

(a) The court shall follow the principles relating to the reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision, the court may, wither upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and state the principles on which it is acting;

(b) The court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation; and

(c) Before making an order under this section, the court may invite and shall take account of representations from or on behalf of the convicted person, victims or other interested persons.

Nothing in this section shall be interpreted as prejudicing the rights of victims under national or international law.

Section 15 provides that in the application and interpretation of the act, Philippine courts shall be guided by the following sources:

(a) The 1948 Genocide Convention;
(b) The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II and their 2005 Additional Protocol III;
(c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, its First Protocol and its 1999 Second Protocol;
(d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict;
(e) The rules and principles of customary international law;
(f) The judicial decisions of international courts and tribunals;
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and
(i) Teachings of the most highly qualified publicists and authoritative commentaries on the foregoing sources as subsidiary means for the determination of rules of international law.

The provisions of the Revised Penal Code and other general or special laws shall have a suppletory application to the provisions of the act (Sec. 16).
Section 17 provides that the State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and penalized in the act, regardless of where the crime is committed, provided, any one of the following conditions is met:

(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship or residence, is present in the Philippines; or
(c) The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under the act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.

No criminal proceedings shall be initiated against foreign nationals suspected or accused of having committed the crimes defined and penalized in the act if they have been tried by a competent court outside the Philippines in respect of the same offense and acquitted, or having been convicted, already served their sentence.
Section 18 states that the Regional Trial Court of the Philippines shall have original and exclusive jurisdiction over the crimes punishable under the act. Their judgments may be appealed or elevated to the Court of Appeals and to the Supreme Court as provided by law.

The Supreme Court shall designate special courts to try cases involving crimes punishable under the act. For these cases, the Commission on Human Rights, the Department of Justice, the Philippine National Police or other concerned law enforcement agencies shall designate prosecutors or investigators as the case may be.
The State shall ensure that judges, prosecutors and investigators, especially those designated for purposes of the act, receive effective training in human rights, International Humanitarian Law and International Criminal Law.

Commission on Human Rights

In relation to my previous entry about the pendency in the Philippine Congress of a bill intended to enlarge and strengthen the powers of the constitutionally created Commission on Human Rights (CHR) of the Philippines, and for legal research purposes of the visitors of this blog, perhaps it is useful to digest hereinbelow the 2004 case entitled COMMISSION ON HUMAN RIGHTS EMPLOYEES’ ASSOCIATION (CHREA) vs. COMMISSION ON HUMAN RIGHTS, G.R. No. 155336, November 25, 2004, which expressly held that the CHR is “not a constitutional commission”, although it was constitutionally created by virtue of the relevant provisions in the 1987 Constitution creating the CHR.

Below are the salient doctrinal pronouncements of the Philippine Supreme Court in the aforecited case, thus:

1. The Court of Appeals incorrectly relied on the pronouncement of the CSC-Central Office that the CHR is a constitutional commission, and as such enjoys fiscal autonomy.

Palpably, the Court of Appeals’ Decision was based on the mistaken premise that the CHR belongs to the species of constitutional commissions. But, Article IX of the Constitution states in no uncertain terms that only the CSC, the Commission on Elections, and the Commission on Audit shall be tagged as Constitutional Commissions with the appurtenant right to fiscal autonomy. Thus:

Sec. 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.



2. Along the same vein, the Administrative Code, in Chapter 5, Sections 24 and 26 of Book II on Distribution of Powers of Government, the constitutional commissions shall include only the Civil Service Commission, the Commission on Elections, and the Commission on Audit, which are granted independence and fiscal autonomy. In contrast, Chapter 5, Section 29 thereof, is silent on the grant of similar powers to the other bodies including the CHR. Thus:
SEC. 24. Constitutional Commissions. – The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.

SEC. 26. Fiscal Autonomy. – The Constitutional Commissions shall enjoy fiscal autonomy. The approved annual appropriations shall be automatically and regularly released.

SEC. 29. Other Bodies. – There shall be in accordance with the Constitution, an Office of the Ombudsman, a Commission on Human Rights, and independent central monetary authority, and a national police commission. Likewise, as provided in the Constitution, Congress may establish an independent economic and planning agency. (Emphasis ours.)



3. From the 1987 Constitution and the Administrative Code, it is abundantly clear that the CHR is not among the class of Constitutional Commissions. As expressed in the oft-repeated maxim expressio unius est exclusio alterius, the express mention of one person, thing, act or consequence excludes all others. Stated otherwise, expressium facit cessare tacitum – what is expressed puts an end to what is implied.[21]

4. Nor is there any legal basis to support the contention that the CHR enjoys fiscal autonomy. In essence, fiscal autonomy entails freedom from outside control and limitations, other than those provided by law. It is the freedom to allocate and utilize funds granted by law, in accordance with law, and pursuant to the wisdom and dispatch its needs may require from time to time. In Blaquera v. Alcala and Bengzon v. Drilon, it is understood that it is only the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman, which enjoy fiscal autonomy. Thus, in Bengzon, we explained:

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions.

. . .

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, [the] Constitutional Commissions, and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision. (Emphasis supplied.)




5. All told, the CHR, although admittedly a constitutional creation is, nonetheless, not included in the genus of offices accorded fiscal autonomy by constitutional or legislative fiat.

Even assuming en arguendo that the CHR enjoys fiscal autonomy, we share the stance of the DBM that the grant of fiscal autonomy notwithstanding, all government offices must, all the same, kowtow to the Salary Standardization Law. We are of the same mind with the DBM on its standpoint, thus-

Being a member of the fiscal autonomy group does not vest the agency with the authority to reclassify, upgrade, and create positions without approval of the DBM. While the members of the Group are authorized to formulate and implement the organizational structures of their respective offices and determine the compensation of their personnel, such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and Compensation System established under RA 6758 more popularly known as the Compensation Standardization Law. (Emphasis supplied.)


________________________________________

See:

Cruz, Philippine Political Law 243 (1996 ed.), citing Ex Parte Lewitt, 303 U.S. 633.
EASCO v. LTFRB, G.R. No. 149717, 07 October 2003, 413 SCRA 75.
Philippine Law Dictionary 21 (2nd ed.), citing Caw v. Benedicto, 63 OG 3393; 8 C.A.R. (2s) 814.
G.R. No. 143784, 05 February 2003, 397 SCRA 27, 35.G.R. No. 119155, 30 January 1996, 252 SCRA599.
G.R. No. 131529, 30 April 1999, 306 SCRA 593, 609.
Rep. Act No. 7354 (1992).
Canet v. Decena, G.R. No. 155344, 20 January 2004, 420 SCRA 388.
Blaquera v. Alcala, G.R. Nos. 109406, 110642, 111494, 112056 and 119597, 11 September 1998, 295 SCRA 366.
Article XXXIII, Rep. Act No. 8522, Special Provisions Applicable to all Constitutional Offices Enjoying Fiscal Autonomy.
Cruz, Philippine Political Law, p. 243 (1996 Ed).
G.R. No. 113079, 20 April 2001, 357 SCRA 30, citing Nestle v. Court of Appeals, G.R. No. 86738, 13 November 1991, 203 SCRA 504.

European paranoia: the burqa debate.

Fresh reports from Paris state that a French parliament report has called for a ban on the full Islamic veil, saying Muslim women who wear the burqa were posing an "unacceptable" challenge to French values.

The panel of 32 French lawmakers recommended a ban on the face-covering veil in all schools, hospitals, public transport and government offices. It was deemed as the broadest move yet to restrict Muslim dress in France.

The commission however stopped short of proposing broad legislation to outlaw the burqa in the streets, in shopping centers and other public venues after raising doubts about the constitutionality of such a move.

The parliamentarians seem to connect the wearing of the burqa "as a symbol of the exportation of a radical brand of fundamentalism and sectarianism to France".

They feel that the all-encompassing veil was "contrary to the values of the republic".

The effect of such position, once converted in French law, would be "that women who turn up at the post office or any government building wearing the full veil would be denied services such as a work visa, residency papers or French citizenship".

The opposition Socialists refuse to endorse the final report to protest the government's launching of “a debate on national identity”, which has exposed French fears about Islam.

Critics of the "burqa debate" have warned that it risks stigmatizing France's six million Muslims and describe the wearing of the garment as a marginal phenomenon affecting few women.

To the credit of French President Nicolas Sarkozy, he reassures France's estimated six million Muslims, saying that freedom to practice religion was enshrined in the constitution.

"Our country, which has known not only wars of religion but also fratricidal battles due to state anti-clericalism, cannot let French Muslim citizens be stigmatized," he said at Notre Dame de Lorette cemetery in northern France yesterday.

This is the same Sarkozy who had set the tone for the debate in June last year when he declared the burqa was "not welcome" in France and described it as a symbol of women's "subservience" that cannot be tolerated in a country that considers itself a human rights leader.

According to French statistics, despite a large Muslim presence, the sight of fully-veiled women is not common in France. Only 1,900 women wear the burqa, according to the interior ministry. Half of them live in the Paris region and 90 percent are under 40.

It is not known to many but France is home to Europe's biggest Muslim minority,

It will be recalled that three months ago Swiss voters had approved a ban on minarets.

French support for a law banning the full veil is strong: a poll last week showed 57 percent are in favor.

It will be recalled that in 2004, France passed a law banning headscarves and any other "conspicuous" religious symbols in state schools after a long-running debate on how far it was willing to go to accommodate Islam in its strictly secular society.

It was also reported that Denmark, the Netherlands and Austria were studying measures to ban the full veil.




See:
http://newsinfo.inquirer.net/breakingnews/world/view/20100127-249719/French-parliament-report-calls-for-burqa-ban

New Philippine laws (2009)

In his 2009 yearend report, Hon. Prospero Nograles, Speaker of the House of Representatives of the Philippines Congress, inter alia, listed the new laws that the Philippine Congress had passed, thus:

1. Among the vital measures, enacted into law during the 40 actual session days of the 3rd regular session, include the following:

• RA 9829 - Establishing the Pre-Need Code of the Philippines authored by Reps. Jaime Lopez and Juan Edgardo Angara and sponsored by the Committee on Banks and Financial intermediaries chaired by Rep. Lopez;

• RA 9828 - Creating the Military Service Board and providing funds therefore, authored by Herminia Roman, sponsored by the Committee on Veterans Affairs and Welfare chaired by Rep. Antonio Diaz;

• RA 9803 - Encouraging the donation of food for charitable purposes, authored by Rep. Eduardo Zialcita, sponsored by the Committee on social Services headed by Rep. Faysah RPM Dumarpa;

• RA 9775 - Defining the crime of child pornography/ priscribing penalties therefore and for other purposes, authored by Reps. Antonino, Custodio, Velarde, Arroyo and Narciso Santiago, jointly approved and sponsored by the Committees Justice, Welfare of Children and Appropriations chaired respectively by Reps. Matias Defensor, Monica Louise Prieto-Teodoro, and Junie Cua;

• RA 9745 - Penalizing the commission of acts of torture and other cruel, inhuman and degrading treatment or punishment, authored by Reps. Ana Theresia Hontiveros-Baraquel, Satur Ocampo, Teodoro Casino, (the late) Crispin Beltran, Liza Maza, Luzviminda Ilagan and Salvador Escudero III, sponsored by the Committees on Justice, Human Rights and Appropriations, chaired respectively by Reps. Defensor, Lorenzo Tanada III, and Cua;

• RA 9729 - Establishing the framework program for Climate Change, creating the Climate Change Commission for this purpose, authored by Rep. Roilo Golez, sponsored by the Committees on Government Reorganization, Ecology and Appropriations, chaired respectively by Reps. Erico Basilio Fabian, Belma Cabilao and Cua;

• RA 9711 - Strengthening the regulatory capacity of the Bureau of Food and Drugs (BFAD) by establishing adequate testing laboratories and field office, upgrading its equipment, augmenting its human resource complement, giving authority to retain its income and renaming it as the Food and Drugs Administration (FDA), authored by Reps. Arthur Pingoy, Jr., and Edcel Lagman, sponsored by the Committees on Health and Appropriations chaired respectively by Reps. Pingoy, Jr., and Cua;

• RA 9710 - Providing for the Magna Carta of Women, authored by Reps. Nanette Castelo-Daza, Ma. Isabelle Climaco and Juan Edgardo Angara, sponsored by the Committee on Women and Gender Equality chaired by Rep. Castelo-Daza;

• RA 9709 - Establishing programs regarding early detection, diagnosis and interview for newborns and infants (Early hearing loss detection, diagnosis and intervention Act) authored by Rep. Narciso Santiago, sponsored by the Committee on Health and Appropriations;

• RA 9708 - Adjusting the requirements on education and for promotion in the Philippine National Police, amending for the purpose RA 8551, otherwise known as the PNP Reform and Reorganization Act of 1998, authored by Rep. Rodolfo Antonino, sponsored by the Committee on Public Order chaired by Rep. Antonino himself; and

• RA 9700 - Sustaining the implementation of the CARP, extending the acquisition & distribution of all agricultural lands, instituting necessary reforms, authored by Reps. Lagman, Cua, Abraham Khalil Mitra, Elias Bulut, Jr., Reno Lim and Hontiveros, sponsored by the Committees on Agrarian Reform and Appropriations.

2. As of December 26, 2009 under review by the President were the following conference committee reports ratified by the House:

HB 6767 - 2010 GAA
HB5618/SB3429 - Authorizing the issuance of Free Patent Title for Residential land
HB 5649/SB 3286 - Improving the standards of protection and assistance for migrant workers
HB 6076/SB 1598 - Expanding the promotion of breastfeeding
HB 4253/SB 3482 - Creating a National Commission on Muslim Filipinos, defining its powers, functions and responsibilities & appropriating funds therefore
HB 6733/SB 3014 - Providing for the protection and conservation of the National Cultural Heritage, strengthening the national cultural agencies
HB 6899/SB 3220 - Amending Sections 6..etc….of the National Internal Revenue Code of 1997, as amended, allowing the exchange of information by the BIR on tax matters pursuant to the internationally agreed Tax Standards and for other purposes
HB 5210/SB 3392 - Exempting certain transactions from the Value-added tax
HB 6095/SB 3431 - Providing for an Agricultural & Agrarian Reform Credit & Financing System through Banking Institutions
HB 6017 - Grating tax relief to the Life Insurance Industry by abolishing the Documentary Stamp Tax and Premium Tax on Life Insurance
HB 515/SB 3389 - Transferring the Phil. Coast Guard to the Dept. of Transportation & Communications as an attached agency and redefining it organization & personnel administration
HB 6517/SB 2357 - Anti- Photo and Video Voyerism Act of 2009
HB 6820/SB 1620 - Granting additional retirement, survivorship, and other benefits to member of the Judiciary
HB 6633/SB 2669 - Philippine Act on Crimes against International Humanitarian Law, Genocide, and other crimes against humanity
HB 6112/SB 1980 - creating three additional branches of the Regional Trial Court in South Cotabato
HB 5922/SB 2454 - Granting the SSS a one time authority to condone penalties on unremitted or delinquent contributions by employers
HB 6516/SB 3288 - Declaring Arnis as the Philippine National Sport
HB 5279/SB 3111 - Providing for the legitimation of children born to parents below marrying age, amending for the purpose the Family Code of the Philippines, as amended
HB 50/SB 3106 - Providing for the Magna Cart for Homeowners Associations
HB 6400/SB 3283 - Declaring the 10th Day of Zhul Hijja, the 12th Month of the Hijrah Calendar a National Holiday for the observance of Eid’l Adha
HB 6379/SB 2639 - Providing the Legal Framework for Real Estate Investments Trusts

3. Since July 23, 2007 to December 18, 2009 (1st, 2nd and 3rd Regular Session of the 14th Congress), there were a total of 7,093 bills filed, 1,634 Resolutions filed for a grand total of 8,727 measures filed, from which 2,571 Committee Reports were produced by the different standing and special committees.

4. From 2007 until Dec. 18, 2009 some 342 measures were enacted into law, 65 of which of national scope, 272 of local application and five (5) were HJRs. Some 1,122 were approved on 3rd reading (186, national; 930, local; 1 HCR) and are pending in the Senate. Some 1,069 Resolutions were adopted, excluding three reports on privilege speeches, for a grand total of 4,449 measures processed.

5. Until December 18, some 20 measures are now under the Unfinished Business, and 24 other measures fall under the classification Business for the Day which the Committee on Rules chaired by Majority Leader Defensor said are up for plenary consideration until the last day of session of the 14th Congress before the May 2010 campaign period.


COMMENT:

Considering the multi-billions in pork barrels, salaries, fringe benefits, and junket foreign trips of Filipino legislators (and their bureaucratic sycophants in the Executive Branch) which shamelessly drain the almost-empty treasury of the Philippine government and ruthlessly suck the anemic and malnourished blood of Filipino taxpayers, the passage of the aforecited eleven (11) new laws should not impress the Filipinos as great accomplishments of the Philippine Congress.

The per capita expense viz. each new law passed is not cost-effective(in fact, the cost-benefit ratio is grossly embarrassing).

Neither should the filing by the legislators of hundreds of bills impress the Filipinos because a great majority thereof are merely refiled and rehashed bills or insignificant and routine bills of local application, e.g., re-naming a public street or school and the like.


See:
http://www.congress.gov.ph/press/details.php?pressid=4003

Freedom of information

Yesterday it was reported in the Philippine dailies that the bicameral conference committee of the Senate and the House of Representatives of the Philippine Congress had approved the Freedom of Information Act aimed at promoting transparency and accountability in government by strengthening the people’s right of access to information.

Sen. Alan Peter Cayetano, chairman of the Senate committee on public information, said the bill would be tackled at the plenary this week to allow the two chambers to reconcile their versions.

The bill, once passed, hopes to empower each Filipino in becoming graft busters, he claims. Or at least, that is the ambition.

Under the bill, all government agencies are required to make available to the public for scrutiny, copying and reproduction all information pertaining to official acts, transactions or decisions, as well as government research data used as basis for policy development, regardless of their physical form or format in which they are contained and by whom they were made, Cayetano said. (See report by Aurea Calica in The Philippine Star on January 24, 2010).

In my past blogs on the matter, I had argued that openness, transparency and full disclosure are essential to the effective operation of democratic institutions, especially the justice system.

This, of course, is subject to the sincerity and political will of the people and their leaders to fully implement, enforce, and assert the law.

Otherwise, it will just become another dead file in the legal archives of Congress, as what usually happens with many idealistic and well-intentioned laws in the Philippines since time immemorial.

I am reproducing the salient parts of the Committee Report No. 534 of the Senate committee on public the information on the proposed Freedom of Information Act (based on its version, docketed as Senate Bill No. 3308), for legal research purposes of the visitors of this blog. Thus:

1. The State recognizes the right of the people to information on matters of public concern, and adopts and implements a policy of full public disclosure of all its transactions involving public interest, subject to the procedures and limitations provided by the Act. This right is indispensable to the exercise of the right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making.

2. The Act shall cover all government agencies.

3. “Information” shall mean any knowledge, record, document, paper, report, letters, contract, minutes and transcripts of official meetings, maps, books, photographs, data, research material, film, sound and video recordings, magnetic or other tapes, electronic data, computer stored data, or any other like or similar data or material recorded, stored or archived in whatever form or format, which are made, received or kept in or under the control and custody of my government agency pursuant to law, executive order, rules and regulations, ordinance or in connection with the performance or transaction of official business by any government agency.

4. “Government agency” shall include the executive, legislative and judicial branches as well as the constitutional bodies of the Republic of the Philippines including, but not limited to, the national government and all its agencies, departments, bureaus, offices and instrumentalities, constitutional commissions and constitutionally mandated bodies, local governments and all their agencies, regulatory agencies, chartered institutions, government-owned or controlled corporations, including wholly-owned or controlled subsidiaries, government financial institutions, state universities and colleges, the Armed Forces of the Philippines, the Philippine National Police, all offices in the Congress or the Philippines including the offices of Senators and Representatives, the Supreme Court and all lower courts established by law.

5. “Official records” shall refer to information produced or received by a public officer or employee, or by a government agency in an official capacity or pursuant to a public function or duty, and is not meant to be a stage or status of the information.

6. “Public records” shall include information required by law, executive orders, rules, or regulations to be entered, kept and made publicly available by a government agency.

7. There shall be a legal presumption in favor of access to information. Accordingly, government agencies shall have the burden of proof of showing by clear and convincing evidence that the information requested is exempted from disclosure by this Act.

8. Government agencies shall make available to the public for scrutiny, copying and reproduction in the manner provided by the Act, all information pertaining to official acts, transactions or decisions, as well as government research data used as basis for policy development, regardless of their physical form or format in which they are contained and by whom they were made.

9. Subject to the qualifications set forth in the Act, access to information may be denied when:


(a) The revelation of the information requested will create a clear and present danger of war, invasion or any external threat to the State as determined by the Office of the President and/or the Secretary of the Department of National Defense;

(b) The information requested pertains to the foreign affairs of the Republic of the
Philippines, when its revelation would unduly weaken the negotiating position of
the government in an ongoing bilateral or multilateral negotiation or seriously
jeopardize the diplomatic relations of the Philippines wit11 one or more states with
which it intends to keep friendly relations;

(c) The information requested pertains to internal and external defense and law
enforcement, when the revelation thereof would render a legitimate military
operation ineffective, unduly compromise the prevention, detection or suppression
of a criminal activity, or endanger the life or physical safety of confidential or
protected sources or witnesses, law enforcement and military personnel or their
immediate families. Information relating to the details of the administration,
budget and expenditure, and management of the defense and law enforcement
agencies shall always be accessible to the public;

(d) The information requested pertains to the personal information of a natural person other than the requesting party, and its disclosure would constitute a clearly
unwarranted invasion of his or her personal privacy, unless it forms part of a
public record, or the person is or was an official of a government agency and the
information requested relates to his or her public function, or the person has
consented to the disclosure of the requested information;

(e) The information requested pertains to trade, industrial, financial or commercial
secrets of a natural or juridical person other than the requesting party, obtained in
confidence by, and/or filed with a government agency, whenever the revelation
thereof would seriously prejudice the interests of such natural or juridical person
in trade, industrial, financial or commercial competition, unless such natural or
juridical person has consented to the disclosure of the requested information;
(f) The information requested is privileged from production in legal proceedings by law or by the Rules or Court, unless the person entitled to the privilege has
waived it;

(g) The information requested is exempted by law, in addition to those provided in
this Section;

(h) The information requested is obtained by any committee of either House of
Congress in executive session, whenever such information falls under any of the
foregoing exceptions; and

(i) The information requested consists of drafts of decisions by any executive,
administrative, judicial or quasi-judicial body in the exercise of their adjudicatory
functions whenever the revelation thereof would reasonably tend to impair the
impartiality of verdicts, or otherwise obstruct the administration of justice.

10. Even if the information requested falls under the exceptions set forth in the preceding section, access to information shall not be denied if:

(a) The information requested may be reasonably severed from the body of the
information which would be subject to the exceptions;

(b) The public interest in the disclosure outweighs the harm to the interest sought to
be protected by the exceptions; or

(c) The requesting party is either House of Congress, or any of its Committees, unless the disclosure will constitute a violation of the Constitution.

11. Any person who wishes to obtain information shall submit a request to the government agency concerned personally, by mail, or through electronic means. The request shall state the name and preferred contact information of the requesting party, and reasonably describe the information required, the reason for the request of the information and the preferred means by which the government agency shall communicate such requested information to the requesting party: Provided, that the staled reason, or the failure to state the reason for the request of the information, shall not be used as a ground to deny the request or to refuse the acceptance of the request, unless such reason is contrary to law. If the request is submitted personally, the requesting party shall show his current identification card issued by any government agency, or government or private employer or school, or a community tax certificate. If the request is submitted by mail or through electronic means, the requesting party may submit a photostatic or electronically scanned copy of the identification, or other convenient means as determined by the agency.

The request shall be stamped by the government agency, indicating the date
and time of receipt and the name, rank, title and position of the receiving public officer or employee with the corresponding signature, and a copy thereof furnished to the requesting party. In case the request is submitted by electronic means, the government agency shall provide for an equivalent means by which the requirements of this paragraph shall be met.

The request may indicate the following preferred means of communication:

(1) A true copy of the information requested in permanent or other form;
(2) An opportunity to inspect the requested information, using equipment
normally available to the government agency when necessary;
(3) An opportunity to copy the requested information using personal
equipment;
(4) A written transcript of the information requested contained in an audio or
visual form;
(5) A transcript of the content of the information requested, in print, sound or
visual form, where such transcript is capable of being produced using
equipment normally available to the government agency;
(6) A transcript of the requested information from shorthand or codified form;
or
(7) Other reasonable means or format.
(d) A government agency may communicate the information requested in a form
other than the preferred means whenever such preferred means would unreasonably interfere with the effective operation of the agency, or be detrimental to the preservation of the record.

(e) The government agency shall comply with such request within seven (7)
calendar days from the receipt thereof.

(f) The time limits prescribed in this Section for the production of the requested
information may be extended whenever there is a need for any of the following:

(1) To search for and collect the requested information from field facilities or
other establishments that are separate from the office processing the
request;
(2) To search for, collect and appropriately examine a voluminous amount of
separate and distinct information which are demanded in a single request;
(3) Consultation, which shall be conducted in all practicable speed, with
another government agency or among two (2) or more components of the
government agency having substantial interest in the determination of the
request; and
(4) To consider fortuitous events or other events due to force majeure or other
analogous cases.
(g) The government agency shall, in writing or through electronic means, notify
the person making the request of the extension, setting forth the reasons for such
extension and the date when the information requested shall be made available: Provided, that no such notice shall specify a date that would result in an extension of more than fifteen (15) calendar days from the original deadline.

12. Government agencies may charge a reasonable fee to reimburse the actual cost of reproduction, copying or transcription and the communication of the information requested.

13. If the government agency decides to deny the request, in whole or in part, it shall, within seven (7) calendar days-from the receipt of the request, notify the person making the request of such denial iii writing or through electronic means. The notice shall clearly indicate the name, rank, title or position of the person malting the denial, and the grounds for the denial. In case the denial is by reason of a claimed exception, the denial shall also state clearly the legitimate aim or interest sought to be protected in the confidentiality, and the facts and circumstances invoked showing the substantial harm to, or frustration of, the legitimate aim or interest that will result in the disclosure of the information requested. Failure to notify the person making the request of the denial, or of the extension, shall be deemed a denial of the request for access to information.

14. For the effective implementation of the Act, every government agency shall prepare a Freedom of Information Manual, which shall include the following information:

(1) The location and contact information of the head, regional, provincial and
field offices, and other' established places where the public can obtain
information or submit requests;
(2) The types of information it generates, produces, holds and/or publishes;
(3) A description of its record-keeping system;
(4) The person or office responsible for receiving requests for information;
(5) The procedure for the filing of requests personally, by mail. or through the
identified electronic means;
(6) The standard forms for the submission of request and for the proper
acknowledgement of the request;

(7) The process for the disposition of the request, including the routing of the
request to the person or office with the duty to act on the request, the
decision-malting, and the grant or denial of access and its implementation;

(8) The procedure for the administrative appeal of any denial [or access to
information;

(9) The schedule of fees;

(10) The process and procedure for the mandatory disclosure of information
under Section 14 of this Act;

(1 1) Should the agency lack the capacity to comply with Section 14 (a) of
this Act, a brief description of its plan to facilitate compliance within three
(3) years from the approval of this Act; and

(12) Such other information, taking into consideration the unique
characteristics of an agency, that will help facilitate the effective
implementation of this Act.

The foregoing information shall also be posted in its website and bulletin
boards, and shall be regularly updated;

In n0 case shall the absence of the aforementioned guidelines be a reason for
the denial of any request for information made in accordance with this Act.

15. In all government agencies other than the judicial branch every denial of any request for access to information may be appealed to the person or office next higher in authority, following the procedure mentioned in Section 12 (8) of this Act: Provided, [hat the appeal must be filed within fifteen (15) calendar days from the notice of denial and must be, decided within fifteen (15) calendar days from filing. Failure of the government agency to decide within the aforestated period shall constitute a denial of the appeal.

Instead of appealing or after the denial of the appeal, the person denied access to information may file a verified complaint with the Office of the Ombudsman, praying that the government agency concerned be directed to immediately afford access to the information being requested. Such complaint shall be resolved by the Office of the Ombudsman within sixty (60) calendar days from filing, or earlier when time is of the essence taking into account such factors as the nature of the information requested, context of the request, public interest and danger that the information requested will become moot. The Office of the Ombudsman shall promulgate its special rules of procedure for the immediate disposition of complaints filed pursuant to this Section. Unless restrained or enjoined, the decisions of the Office of the Ombudsman shall be immediately executory, without prejudice to review in accordance with the Rules of Court.

Instead of filing a complaint with the Office of the Ombudsman, whenever a request for information is denied originally or on administrative appeal, the requesting party may file a verified petition for mandamus in the proper court, alleging the facts with certainty and praying that judgment be rendered ordering the respondent, immediately or at some other time to be specified by the court, to disclose the information requested and to pay the damages sustained by the requesting party by reason of the denial. The procedure for such petition shall be summary in nature.

In the Judicial Branch - The Supreme Court shall promulgate the remedies that would govern offices under its jurisdiction.

The abovestated remedies under this section are without prejudice to any other administrative, civil or criminal action that may arise from the same act.

The remedies available under this Act shall be exempt from the rules on nonexhaustion of administrative remedies and the application of the provisions of Republic Act No. 9285, otherwise known as the Alternative Dispute Resolution Act of 2004.

In case the requesting party has limited or no financial capacity, the Public Attorney’s Office shall be mandated to provide legal assistance to the requesting party in availing of the remedies provided under this Act.

16. Subject to Sections 7 and 8 of this Act, all government agencies shall upload on their websites, which shall be regularly updated every fifteen (15) days, all the steps, negotiations and key government positions pertaining to definite propositions of the government, as well as the contents of the contract, agreement or treaty in the following transactions involving public interest:

(1) Compromise agreements entered into by a government agency with any
person or entity involving any waiver or its rights or claims;
(2) Private sector participation agreements or contracts in infrastructure and
development projects under Republic Act No. 6957, as amended by
Republic Act No. 771 8, authorizing the financing, construction, operation
and maintenance of infrastructure projects;
(3) Procurement contracts entered into by a government agency;
(4) Construction or concession agreements or contracts entered into by a
government agency with any domestic or foreign person or entity;
( 5 ) Loans, grants, development assistance, technical assistance and programs
entered into by a government agency with official bilateral or multilateral
agencies, as well as with private aid agencies or institutions;
(6) Loans from domestic and foreign financial institutions;
(7) Guarantees given by any government agency to government-owned or -
controlled corporations and to private corporations, persons or entities;
(8) Public funding extended to any private entity;
(9) Bilateral or unilateral agreements and treaties in defense, trade,
economic partnership, investments, cooperation and similar binding
commitments; or
(10) Licenses, permits or agreements given by any government agency to any
person or entity for the extraction and/or utilization of natural resources.

A summary list of the foregoing information uploaded in the website shall be
posted in the bulletin boards of the concerned government agency.

17. Government agencies shall regularly publish, print and disseminate at no cost to the public and in an accessible form, in conjunction with R.A. 9485, 'or the Anti-Red Tape Act of 2007, and through their website, timely, true, accurate and updated key information including, but not limited to:

(1) A description of its mandate, structure, powers, functions, duties and
decision-making processes;
(2) A description of the frontline services it delivers and the procedure and
length of time by which they may be availed of;
(3) The names of its key officials, their powers, functions and responsibilities,
and their profiles and curriculum vitae;
(4) Work programs, development plans, investment plans, projects,
performance targets and accomplishments, and budgets, revenue
allotments and expenditures;
(5) Important rules and regulations, orders or decisions;: Provided, that they
be published within fifteen (15) calendar days from promulgation;
(6) Current and important database and statistics that it generates;
(7) Bidding processes and requirements; and
(8) Mechanisms or procedures by which the public may participate in or
otherwise influence the formulation of policy or the exercise of its powers.
(b) Keeping of Records - Government agencies shall maintain and preserve their
records in a manner that facilitates easy identification, retrieval and communication to the public. They shall establish Management Information Systems (MIS) to strengthen their capability to store, manage and retrieve records, and to facilitate access to public records.

The following shall not be destroyed:

(1) Records pertaining to loans obtained or guaranteed by the government;
(2) Records of government contracts;
(3) The declaration under oath of the assets, liabilities and net worth of public
officers and employees, as required by law;
(4) Records of official investigations on graft and corrupt practices of public
officers; and
(5) Other records where there is a significant public interest in their
preservation or where there is likely to be such interest in the future.
(c) Accessibility of Language and Form - Every government agency shall
endeavor to translate key information into major Filipino languages and present them in popular form and means.
(d) Improving Capability - Every government agency shall ensure the provision
of adequate training for its officials to improve awareness of the right to information and the provisions of this Act, and to keep updated of best practices in relation to information disclosure, records maintenance and archiving.

18. The penalty of imprisonment of not less than one (I) month but not more than six (6) months shall be imposed upon:

(a) Any public officer or employee receiving the request under Section 9 of this
Act who shall fail to promptly forward the request to the public officer within
the same office or agency responsible for officially acting on the request when
such is the direct cause of the failure to disclose the information requested
within the periods required by this Act;

(b) Any public officer or employee responsible for officially acting on the
request, who shall:

(1) Fail, to act on the request within the periods required by the Act;
(2) Knowingly deny the existence of existing requested information;
(3) Destroy information being requested for the purpose of frustrating
the requesting party’s access thereto;
(4) Claim an exception under the Act, or under the Constitution, when the claim is manifestly devoid of [actual basis; or
(5) Refuse to comply with the decision of his immediate supervisor,
the Ombudsman or the court ordering the release of the
information requested that is not restrained or enjoined by a court;
(c) The head of office of the government agency directly and principally
responsible for the negotiation and perfection of any of the transactions
enumerated in Section 13 (a) of this Act, who shall knowingly refuse, to direct
the mandatory posting or uploading of such transaction despite the agency
capacity to implement such directive. The same penalty shall be imposed upon
the public officer or employee who, despite a directive from the head of
office, shall fail, to post or upload any of the transactions enumerated in
the Act;

(d) Any public officer or employee who shall destroy, or cause to destroy, records
of information covered by Section 15 (b) of this Act;
(e) Any public officer who formulates policies, rules and regulations manifestly
contrary to the provisions of the Act, and which policies, rules and
regulations are the direct cause of the denial of a request for information; or
(f) Any public or private individual who knowingly induced or caused the
commission of the foregoing acts under this section.

The foregoing shall be without prejudice to any administrative liability of the
offender under existing laws and regulations.

Empowering the CHR

Today a news item came out in the Philippine national dailies in re: the proposed Commission on Human Rights (CHR) Charter which is pending consideration and approval by the Philippine Congress.

The intent of the pending bill/s is to strengthen the CHR, pursuant to its mandate under the 1987 Philippine Constitution.

My reading, however, of the news item seems to indicate that the proposed charter does not contain a provision empowering the CHR to conduct preliminary investigations to indict human rights violators in the criminal courts.

The power to conduct preliminary investigations and to indict respondents in criminal violations of human rights laws, as far as I am concerned, is the most important power that the CHR must possess to give flesh to its constitutional mandate, considering that the Department of Justice (DOJ) has almost totally lost its credibility due to the partisanship, laziness, incompetence, or corruption of its trial and investigating prosecutors and due to overwhelming political dictation and influence from equally corrupt elements in the Executive and Legislature when it comes to highly controversial and extremely politicized criminal cases.

At any rate, I shall try to analyze next week the pending House Bill No. 6822 or “An Act Strengthening the Commission on Human Rights and for Other Purposes” which the Lower House approved last September 16, 2009.

The Senate version of the bill is hibernating in that highly divided chamber where aggressive politicking is the rule of the day in light of the May 10, 2010 national elections.

That is the trouble when you have a Senate composed of prestige-seeking members whose ambitions in life are to be president of the republic, maintain their 200 million-peso annual pork barrel, protect their vested economic interests, and secure their elitist status in life.

And yet, when these senators, many of whom were elected on the basis of their popularity as movie actors and television anchorpersons and on the basis of the economic and political influence, network and wealth of their well-entrenched family dynasties and business conglomerates, conduct investigations "in aid of re-election" with full and glaring media coverage, they hypocritically behave as if they are the idealistic epitome and zenith of selflessness, patriotism and morality.

I doubt if Congress will have the time until May 2010 to act on the final CHR bill.

All Filipino politicians, from top to bottom, are now nervously preoccupied with their re-election campaigns and electoral fund-raising activities (both legal and illegal).

Below is the news item that appeared to day in the national dailies in the Philippines. Thus:



CHR wants more power vs. human rights violators
By Abigail Kwok
INQUIRER.net
First Posted 15:42:00 01/25/2010

MANILA, Philippines – The Commission on Human Rights (CHR) on Monday urged the Senate to pass the CHR Charter that would “pave the way for a stronger CHR that will be better resourced to respond to persisting human rights violations,” chairperson Leila de Lima said.

“There is no better time than now to pass the charter as it has covered much ground in convincing legislators that the Commission must exercise its constitutional powers to the full extent of laws without being stymied by many interpretations of unspecified or unelaborated concepts such as legal and protective measures,” de Lima added.

The House of Representatives has already passed the CHR Charter under House Bill 6822 or “An Act Strengthening the Commission on Human Rights, and for Other Purposes” last September 16, 2009.

However, de Lima said the Senate Committee on Human Rights and Justice has yet to pass its version at the Committee Level.

Among the salient features of the CHR charter includes elaborated mandates and a restructured functional organization.

For example, Section 19 of the proposed charter includes ordering any member of the government’s police forces to “desist from hiding, transferring or torturing a detainee and to allow access to said detainee by the Commission, his/her counsel, physician, and relatives.”

Also under the proposed charter is the authority of the CHR is to “transfer persons deprived of their liberty and in danger of reprisal due to the filing of a complaint in connection with his/her detention, in order to secure safety of his/her person.”
The proposed charter also allows the CHR to file for restraining orders that would restrict any person accused of violating the human rights of an individual to approach the residence or other areas where the victim resides.

Meanwhile, under Section 20 of the proposed charter, the CHR would have the authority to direct government security agencies to protect any victim of human rights violations as well as to deputize concerned government agencies to provide the necessary protection to human rights victims.

Other salient features of the proposed CHR Charter are: (a) staggered term for the CHR Chair and Commissioners (as opposed to the current 7-year fixed term for all Commissioners); (b) a Nominations Committee (akin to JBC for the selection of the Chair and Commissioners); (c) full fiscal autonomy; (d) deputization of government prosecutors or private lawyers (to prosecute) and of lawyers, legal groups, medical organizations and government agencies and offices (to assist in the investigative function); (e) accreditation of NGOs and people’s organizations; (f) preventive suspension; (g) witness protection program (separate from the DOJ-administered WPP); and (h) designation of human rights attaches for the protection of Filipinos abroad.

See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20100125-249391/CHR-wants-more-power-vs-human-rights-violators

Phlippines fails economic freedom index

May I reproduce below the portion of the 2010 world economic freedom report of the conservative Heritage Foundation referring to the Philippine situation, for the information of the visitors of this blog.

Among other things, the report states one obvious and demoralizing fact that all Filipinos already know: “Corruption is perceived as pervasive in the Philippines. The Philippines ranks 141st out of 179 countries in Transparency International’s Corruption Perceptions Index for 2008, a decline from 2007. A culture of corruption is long-standing, and enforcement of anti-corruption laws is inconsistent.”

The overall negative judgment of the Foundation on the Philippine situation is quoted below:

“The Philippines has an economic freedom score of 56.3, making its economy the 109th freest in the 2010 Index. Its score is 0.4 point lower than last year, reflecting small reductions in monetary freedom and freedom from corruption. The Philippines ranks 20th out of 41 countries in the Asia–Pacific region, and its overall score is slightly below the world and regional averages.”

As to the state of the justice system in the country, here is what the report painfully concludes: “The judicial system remains weak and vulnerable to political influence.”

Here is the full text of the report on the Philippine situation:


The Philippines has an economic freedom score of 56.3, making its economy the 109th freest in the 2010 Index. Its score is 0.4 point lower than last year, reflecting small reductions in monetary freedom and freedom from corruption. The Philippines ranks 20th out of 41 countries in the Asia–Pacific region, and its overall score is slightly below the world and regional averages.

The Philippines scores above the world average in half of the 10 economic freedoms. The government has pursued a series of structural reforms to improve the entrepreneurial environment and develop a stronger private sector that generates more dynamic job growth. Overall progress has been mixed, but some fiscal reforms have been accomplished. The top corporate tax rate has been reduced, and progress in privatization and fiscal prudence has helped to reduce the public debt. Improving tax administration remains a priority.

The Philippines is weak in business freedom, investment freedom, property rights, and freedom from corruption. The government imposes formal and non-formal barriers to foreign investment. Reflecting a lack of domestic economic dynamism, the Philippines still relies heavily on remittances from abroad. The judicial system remains weak and vulnerable to political influence.
________________________________________

Background

The Philippines’ diverse population, which speaks more than 80 languages and dialects, is spread over 7,000 islands in the Western Pacific Ocean. The country returned to democracy in 1986 after two decades of autocratic rule. President Gloria Arroyo took office in 2001 and since then has weathered multiple impeachment attempts. The government’s failure to do anything substantial to liberalize the economy has set back efforts to attract much-needed foreign investment in basic industries and infrastructure, and the Philippines continues a long slide from being one of Asia’s richest economies to being one of its poorest. The economy relies heavily on emigrants’ remittances equivalent to about 10 percent of GDP.
________________________________________

Business Freedom 48.1

The overall freedom to start, operate, and close a business is limited under the Philippines’ regulatory environment. Starting a business takes an average of 52 days, compared to the world average of 35 days. Obtaining a business license takes less than the world average of 218 days. Closing a business can be a difficult and lengthy process.
________________________________________

Trade Freedom 77.8

The Philippines’ weighted average tariff rate was 3.6 percent in 2007. Some high tariffs, import and export restrictions, quotas and tariff rate quotas, services market access barriers, import and export taxes, import licensing requirements, restrictive and non-transparent standards, labeling and other regulations, domestic bias in government procurement, inconsistent and non-transparent customs valuation and administration, export subsidies, widespread corruption, and weak protection of intellectual property rights add to the cost of trade. Fifteen points were deducted from the Philippines’ trade freedom score to account for non-tariff barriers.
________________________________________

Fiscal Freedom 78.8

The Philippines has relatively high tax rates. The top income tax rate is 32 percent. The top corporate tax rate is 30 percent, down from 35 percent as of January 1, 2009. Other taxes include a value-added tax (VAT), a real property tax, and an inheritance tax. In the most recent year, overall tax revenue as a percentage of GDP was 14.0 percent. Despite domestic political pressure, authorities did not repeal the VAT on petroleum products during the financial crisis.
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Government Spending 91.2

Total government expenditures, including consumption and transfer payments, are low. In the most recent year, government spending equaled 17.1 percent of GDP. Privatization of the power sector continues, with two more generating plants privatized in