Philippine Laws and Cases - Atty. Manuel J. Laserna Jr.
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The Integrated Bar of the Philippines is a useless organization. Originally intended to instill ethical values and promote professionalism among the ranks of lawyers in this country, it has prostituted itself in the service of mafia-type syndicates.
For one thing, it has always been controlled by an elite group of lawyers who parlay their positions of influence into gainful courtroom opportunities. For another, these are the same practitioners most sought after by crooks in government to hide ill-gotten wealth in layers upon layers of “corporate veils.” Being experts in the “arcana and complexity of the law,” they have set up legal shields to protect their clients from criminal prosecution.
Abogados de campanilla daw ang mga iyan! Their signatures are all over the paper trail in most cases involving ill-gotten wealth. Dummy corporations, on top of and/or alongside other dummy or shell corporations formed by them, have themselves listed as incorporators, or are under the names of persons who don’t exist, or have addresses that are nowhere to be found or that are in vacant lots, empty houses, abandoned warehouses, etc. The most brazen of all, these amorphous dummies are even said to be “residing” in their law offices and can be reached only through them—as if to serve notice to the curious that they would have to get past them to be anywhere near their thieving clients’ bank accounts!
And what has the IBP done to rid itself of the ill repute that such sleazy shysters have brought upon the entire organization? What has it done to remind lawyers that more than the need to satisfy their greed, the nobility of the profession should be zealously upheld? Have there been disciplinary actions for malpractice against such scumbags?
None—because the IBP is run by the same cabal of scheming schmucks! Chief Justice Maria Lourdes Sereno spoke not only for herself but also for the nation when she said: “It is the duty of this court to promote honesty and integrity in public service” (“SC scolds Binay lawyers for ‘wrong doctrine’,” Front Page, 4/22/15), when she dressed down lawyers who allow themselves to be used by crooks as instruments of corruption and all kinds of skullduggery!
But personally, we prefer to paraphrase Shakespeare’s character in Henry VI: The first thing we do to make an honest nation out of us, let’s kill all the lawyers! Hallelujah!
The man who helped draft the Freedom Constitution of the revolutionary government of President Corazon Aquino in February 1986 has agreed to become the face of charter change, if only for the people, especially the lawmakers, “ to see the value of rewriting the constitution.”
Puno will lead a soft launching of a new movement named “Bagong Sistema, Bagong Pagasa: An Advocacy for System Change” in the next few weeks, where he would call on the President to form a constitutional convention to study changes in the Constitution simultaneous with the 2016 elections. A formal launch is set on or before President Benigno Aquino III delivers his last State of the Nation Address in July.
Why convention? “Because we can't trust Congress to do it well enough for they are for (the preservation of) the status quo.”
The timing of the convention, he said, will dispel suspicions that the constitutional amendments were meant to grant the President an extension of his term. “With the term issue set aside, then we would know what we want to change,” he said, adding that he would seek neither an elective office, nor a seat in the proposed convention come 2016. “If asked, I would be willing to serve as a consultant to help guide the body,” he said.
The justice department has expressed “grave concern” on the House version of the anti-trust bill, which seeks to rein in monopolistic practices in the business sector.
In a letter to House Speaker Feliciano R. Belmonte Jr. last April 28, Justice Secretary Leila M. de Lima said the present House version of the anti-trust bill may fail its stated objectives of protecting small businesses from being disadvantaged by bigger companies.
“After a diligent comparative review rooted in global best practices and informed by the enforcement experience by the Department, we sincerely believe that the present House Bill is designed to fail in its stated objectives,” De Lima said in her letter.
“[It] will instead crystallize the existing monopolistic and oligopolistic practices in the economy today,” she added.
Earlier, the House of Representatives approved on second reading its version of the anti-trust bill, which was subsequently passed on third and final reading last week.
The anti-trust bill, now approved by both House and Senate, aims to check monopolistic practices in the business sector.
De Lima likewise took to task the House leadership for drastically altering the Malacañang version it sent to the Lower House, pursuant to a directive of President Aquino under Executive Order (EO) 45, which also created the Office of Competition (OFC).
She said changes to the Malacañang draft was “unilaterally made without the requisite study and consultations”, thus undermining “the current competition regime under the OFC.”
“The bill is also littered with terms and concepts that are not consistent with law and jurisprudence or not in accord with the tenets of competition policy and law,” she stressed.
Minority congressmen led by Representative Jonathan de La Cruz earlier said the “good faith” provision in the proposed Fair Competition Act of 2015 provides an “escape clause” for big companies should they abuse their dominant position.
Both the House and the Senate versions provide that individuals and companies may resort to undercutting their competition as long as it was done “in good faith.”
The House version also contains a new section not found in the Senate version called “Forbearance,” which allows any individual or company to apply for suspension of the application of the law to dodge, among others, possible prosecution.
The Competition Commission, acting as the regulator, was also given expanded powers under the House version exposing its members to corruption and bribery.
De la Cruz has stressed that the good faith provision “has no place in an anti-competition act, just like what we are discussing right now.”
In the aftermath of the bill hurdling third and final reading, De La Cruz further said: “By ignoring the clear need to level the playing field and open up competition and fair play, the House has thrown away the opportunity to establish a culture of excellence innovation and entrepreneurship.”
He also said: “We are back to the corrosive monopolistic tendencies abetted by undue reliance on good faith.”
Bicameral conference members from both the Lower House and the Senate are expected to sit down this week to reconcile the conflicting provisions of the two versions
x x x."
Read more at http://www.mb.com.ph/doj-expresses-grave-concern-on-house-version-of-anti-trust-bill/#I8RdciBk34YvcQkD.99
MANILA, Philippines - Malacañang on Tuesday reminded public officials to uphold the rule of law after Davao City Mayor Rodrigo Duterte admitted that he was behind the infamous death squad that supposedly executed criminals in his turf.
In a press briefing, Communications Secretary Herminio Coloma Jr. disagreed with observations that the public supports Duterte's brand of crime busting because of weak law enforcement in the country.
"Ang ating paniwala ay rule of law o batas ang umiiral sa ating bansa at tungkulin ng pangulo bilang chief executive na ipatupad ang lahat ng mga batas at ang pinaniniwalaan nating prinsipyo ay ito na ang mga lingkod-bayan ay dapat na pinaiiral din 'yung batas," Coloma said.
In an interview with local television show Gikan sa Masa Para sa Masa, Duterte admitted that he was behind the notorious Davao Death Squad, which supposedly targeted criminals in his city.
Duterte even dared the international group Human Rights Watch to file a case against him after the watchdog called on the Philippine government to investigate the mayor.
MANILA – The Philippine government on Tuesday reminded overseas Filipino workers (OFWs) in Saudi Arabia that they have the right to keep and hold on to their Philippine passports while working there.
In announcement posted on the Official Gazette, the Department of Foreign Affairs said, “The Philippine Embassy in Riyadh reiterates to all Filipino workers in Saudi Arabia that, under Saudi and Philippine law, they have the right to keep and hold on to their Philippine passports while working in Saudi Arabia.”
The announcement said the Philippine passport is considered property of the Republic of the Philippines and only the bearer has the right to keep it.
“The Embassy firmly reminds companies and employers in Saudi Arabia who continue to keep their foreign workers’ passports, as a matter of practice and against the workers’ will, that they are violating Saudi law.”
Specifically, they may be violating Council of Ministers Resolution No. 166 dated 12/04/1421H (14 July 2000) which clearly states that “every employee has the right to keep his passport in his custody.”
The Saudi Ministry of Foreign Affairs also reiterated that the rule is still in effect, and that OFWs whose passports have been kept by their employers may complain to the Ministry of Labor or the police.
See - http://digitaledition.philstar.com/articles/2015-05-27/opinion/unique-offense-and-offenders/105115 "x x x.
"But the Supreme Court affirmed the lower court’s ruling. The SC said that on the question of credence between the conflicting versions of the prosecution and the defense, the findings and conclusions of the lower court must be accorded the greatest respect because it had the opportunity to see, hear and observe the witnesses testify.
The SC also found the narration of Eva believable as it was characterized by simplicity and veracity. It yields the impression of a witness revealing the grim ordeal to which she was subjected and finding it difficult but quite necessary to face her tormentors. The emotional stress she was laboring under was quite evident. It cannot be doubted that if she were not thus sexually assaulted, she would not have been bold and brazen enough to accuse not only the man but also the wife as it could have aroused misgivings on the truth of what was narrated by her which was made clear by the couple’s trade of supplying girls to a house of prostitution and by Val’s practice of sampling the “merchandise” even without their consent. It is unbelievable that she could have entertained the thought of imputing to them such a heinous offense if there were no basis for it, considering that they were her compadre and comadre. Besides her testimony was also corroborated by her seven year old son Benjie and by another neighbor who explicitly affirmed that Val and Lisa were the ones who came out from Eva house as he saw them through the light of a lamp."
(People vs. Villamala, G.R. L-41312, July 29, 1977, 78 SCRA 145).
All the requisites of the crime of libel are obtaining in this case.
A libel is defined as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.1“For an imputation to be libelous, the following requisites must concur: a) it must be defamatory; b) it must be malicious; c) it must be given publicity; and d) the victim must be identifiable.”2
The Court finds the four aforementioned requisites to be present in this case.
As to the first requisite, we find the subject memorandum defamatory. An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt or which tends to blacken the memory of one who is dead. “In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.”3
In the present case, the subject memorandum dealt more on the supposedly abnormal behavior of the private respondent which to an ordinary reader automatically means a judgment of mental deficiency. As the Sandiganbayan correctly ruled:
xxx To stress, the words used could not be interpreted to mean other than what they intend to say – that Martinez has psychiatric problems and needs psychological and/or psychiatric treatment: otherwise her mental and emotional stability would further deteriorate. As the law does not make, any distinction whether the imputed defect/condition is real or imaginary, no other conclusion can be reached, except that accused Lagaya. in issuing the Memorandum. ascribes unto Martinez a vice, defect, condition, or circumstance which tends to dishonor, discredit, or put her in ridicule, xxx4
The element of malice was also established. “Malice, which is the doing of an act conceived in the spirit of mischief or criminal indifference to the rights of others or which must partake of a criminal or wanton nature, is presumed from any defamatory imputation, particularly when it injures the reputation of the person defamed.”5 As early on, the Court had perused the second paragraph contained in the subject memorandum and since the same, on its face, shows the injurious nature of the imputations to the private respondent, there is then a presumption that petitioner acted with malice. Under Article 354 of the RPC, every defamatory imputation is presumed to be malicious, even if it be tme, if no good intention and justifiable motive for making it is shown.
To buttress his defense of lack of malice, petitioner claimed that when he issued the memorandum, he was motivated by good intention to help private respondent and improve PITAHC. Such goodness, however, is not sufficient justification considering the details of the entire contents of the memorandum. Thus, in United States v. Prautch,6 it was held that “[t]he existence of justifiable motives is a question which has to be decided by taking into consideration not only the intention of the author of the publication but all the other circumstances of each particular case.”7 Certainly, the second paragraph in the memorandum was not encompassed by the subject indicated therein (Disclosure and Misuse of Confidential and Classified Information) and likewise was riot even germane to the privatization of PITAHC. At this juncture, the observation of the Court of Appeals (CA) in CA-G.R. SP No. 83622, an Administrative Case filed against herein petitioner based on the same set of facts and circumstances, is worth noting, viz:
x x x If. indeed, petitioner was merely disseminating information to the Manager and Staff of HPP’s under the administration of PITAHC, as he claims, he could have just stated in plain terms the current status of HPP’s to counter the alleged misinformation such as what plans, recommendations and steps are being considered by the PITAHC about the HPP’s, any developments regarding the decision-making process with the assurance that the concerns of those employees involved or will be affected by a possible abolition or reorganization are properly addressed, and similar matters and just stopped there. Casting aspersion on the mental state of private respondent who herself may just be needing plain and simple clarification from a superior like petitioner who is no less the Director of the PITAHC. is totally uncalled for and done in poor taste.
x x x Far from discharging his public duties “in good faith” petitioner succeeded only in ruining beyond repair the reputation of private respondent and attack her very person — the condition of her mental faculties and emotional being — not only by circulating the memo in their offices nationwide but even personally distributed and made sure that the Manager and Staff of the HPP in Tuguegarao where private respondent works, have all read the memo in his presence. It is unbelievable that a public official would stoop so low and diminish his stature by such unethical, inconsiderate, and unfair act against a co-worker in the public service.
x x x x
We fully concur with the Ombudsman’s declaration that short of using the word “‘insane,” the statements- in the memo unmistakably imply that the alleged unauthorized disclosure by private respondent of supposedly classified information regarding the fate of the HPP’s is simply an external manifestation of her deteriorating mental and emotional condition. Petitioner thereby announced to all the employees of the agency that such alleged infraction by private respondent only confirms the findings of their consultant that private respondent is suffering from mental and emotional imbalance, even instructing them to report any information related to private respondent’s “psychiatric behavior.”8
This CA ruling in the Administrative Case which had already attained its finality on November 30, 2004″9 has effectively and decisively determined the issue of malice in the present petition. We see no cogent reason why this Court should not be bound by it. In Constantino v. Sandiganbayan (First Division)10 the Court ruled:
Although the instant case involves a criminal charge whereas Constantino involved an administrative charge, still the findings in the latter case are binding herein because the same set of facts are the subject of both cases. What is decisive is that the issues already litigated in a final and executory judgment preclude — by the principle of bar by prior judgment, an aspect of the doctrine of res judicata. and even under the doctrine of “law of the case,” — the re-litigation of the same issue in another action. It is well established that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, so long as it remains unreversed. it should be conclusive upon the parties and those in privity with them. The dictum therein laid down became the law of the case and what was once irrevocably established as the controlling legal rule or decision continues to be binding between the same parties as long as the facts on which the decision was predicated continue to be the facts of the case before the court. Hence, the binding effect and enforceability of that dictum can no longer be resurrected anew since such issue had already been resolved and finally laid to rest, if not by the principle of res judicata. at least by conclusiveness of judgment. (Citations omitted.)
The element of publication was also proven. “Publication, in the law of libel, means the making of the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.”11 On the basis of the evidence on record and as found by the Sandiganbayan, there is no dispute that copies of the memorandum containing the defamatory remarks were circulated to all the regional offices of the HPP. Evidence also shows that petitioner allowed the distribution of the subject memorandum and even read the contents thereof before a gathering at a meeting attended by more or less 24 participants thereat.
Anent the last element, that is, the identity of the offended party, there is no doubt that the private respondent was the person referred to by the defamatory remarks as she was in fact, particularly named therein.
Privileged Communication Rule is not applicable in this case.
Petitioner tenaciously argues that the disputed memorandum is not libelous since it is covered by the privileged communication rule. He avers that memorandum is an official act done in good faith, an honest innocent statement arising from a moral and legal obligation.
Petitioner’s invocation of the rule on privileged communication is misplaced.
Article 354 of the RPC provides:
Article 354; Requirement for publicity— Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
Before a statement would come within the ambit of a privileged communication under paragraph No, 1 of the abovequoted Article 354, it must be established that: “1) the person who made the communication had a legal, moral or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; 2) the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought: and 3) the statements in the communication are made in good faith and without malice.”12 All these requisites must concur.
In the instant case, petitioner addressed the memorandum not only to the Plant Manager but also to the staff of HPP. Undoubtedly, the staff of HPP were not petitioner’s superiors vested’ with the power of supervision over the private respondent. Neither were they the parties to whom die information should be given for they have no authority to inquire into the veracity of the charges. As aptly observed by theSandiganbayan, the memorandum is not simply addressed to an officer, a board or a superior. Rather, the communication was addressed to all the staff of PITAHC who obviously do not have the power to furnish the protection sought.13 Substantially, the Court finds no error in the foregoing findings. The irresponsible act of furnishing the staff a copy of the memorandum is enough circumstance which militates against the petitioner’s pretension of good faith and performance of a moral and social duty. As further held in Brillante,14 the law requires that for a defamatory imputation made out of a legal, moral or social duty to be privileged, such statement must be communicated only to the person or persons who have some interest or duty in the matter alleged and who have the power to furnish the protection sought by the author, of the statement. It may not be amiss to note at this point too that petitioner very well knows that the recommendation of PITAHC’s consultant, McGimpers, is a sensitive matter that should be treated with strictest confidentiality.15
Neither does the defamatory statement in the memorandum covered by paragraph No. 2 of the Article 354. Though private respondent is a public officer, certainly, the defamatory remarks are not related or relevant to the discharge of her official duties but was purely an attack on her mental condition which adversely reflect on her reputation and dignity.
Imposition of the penalty of fine instead of imprisonment.
Notwithstanding the guilt of the petitioner, still the Court finds favorable consideration on his argument that instead of imprisonment a fine should be imposed on him.
Following precedents16 and considering that the records do not show that petitioner has previously violated any provision of the penal laws, the Court, in the exercise of its judicious discretion, imposes upon him a penalty of fine instead of imprisonment.
WHEREFORE, premises considered, the petition is PARTLY GRANTED. The Decision of theSandiganbayan finding petitioner Alfonso Lagaya y Tamondong guilty beyond reasonable doubt of the crime of libel is AFFIRMED in all respects except that in lieu of imprisonment, petitioner is sentenced to pay a fine of P6,000.00 with subsidiary imprisonment in case of insolvency.
x x x."
G.R. No. 176251, July 25, 2012, ALFONSO LAGAYA Y TAMONDONG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND DR. MARILYN MARTINEZ, RESPONDENTS.
LONDON - A Filipina maid in Hong Kong has published stark photographs of burned and beaten domestic workers to highlight the "modern slavery" she says has long been the city's shameful secret.
"Hong Kong is a very modern, successful city but people treat their helpers like slaves," said Xyza Cruz Bacani, whose black and white portraits won her a scholarship from the Magnum Foundation to start studying at New York University this month.
"The abuse happens behind doors. It's common but no one talks about it, so I want to tell their stories, I want to tell people it's not OK to treat your domestic workers that way."
Bacani is one of the 330,000 domestic workers in the former British colony, most of them from the Philippines and Indonesia.
She told how maids are frequently forced to sleep on toilets, kitchen floors, cabinet tops or even baby-changing tables because they are not given beds.
Many work up to 19-hour days. Some are underpaid or not paid at all. Others are denied food or beaten, she said.
"It was a big shock to me when I listened to their stories and they told me they slept on toilets, that their boss slapped them or their boss didn't even feed them," Bacani, a self-taught photographer, told the Thomson Reuters Foundation by telephone.
"It shocked me how people could treat other people like that. It's very barbaric. When I talk about it I feel angry."
More from: http://www.gmanetwork.com/news/story/493070/pinoyabroad/news/filipina-maid-photographs-modern-slavery-in-hong-kong
In a statement, Royal Institution said the congress, which has as its theme, “ASEAN Integration: Impact on Business & Industries, Education & Public Administration, will be held on June 6 at the Century Park Hotel.
Guest speakers include Australian Skills Institute director for international relations Natasha Oickle, who will discuss ASEAN Integration and Educational Reform toward Outcomes Based Learning: Supporting Better Employment Outcomes and Sustainable Economic Growth, as well as Emilio Aguinaldo College vice president for academic affairs Dr. Valentino G. Baac, who will tackle ASEAN Integration and its Impact on Public Administration.
This year’s research paper presenters include Dr. Carmencita L. Castolo (director of the Polytechnic University of the Philippines - Open University), Dr. Lovell M. Abello, (assistant professor in College of Business and Accountancy of Angeles University Foundation), Ma. Christina G. Aquino, (executive director in Planning and Development of Lyceum of the Philippines University), Dr. Jordan T. Salvador (director of Total Quality Management in Male College of Nursing of University of Dammam in Saudi Arabia), and Atty. Irene D. Valones (court attorney IV of the Supreme Court of the Philippines).
Dr. Castolo will present her and co-author Prof. Diana Lee Tracy Chan’s paper titled “Implementation of ASEAN Qualification Assurance for Higher Education (AQAFHE),” while Dr. Abello, together with her co-authors Dr. Chere’ C. Yturralde and Dr. Manuelita G. Valencia, will tackle their paper titled “Factors Affecting Employability Throughout the ASEAN Integration: A Survey for BS in Accountancy Graduates of a Certain University.”
Ms. Aquino will discuss her paper titled “Undertaking a Curriculum Mapping of an ASEAN, CHED and TESDA Tourism Curricula for Philippine HEIs,” while Dr. Salvador will present his paper titled “Nurses in the Midst of a Shadow: A Phenomenological Study of Regsitered Nurses in Non-Nursing Profession.”
Atty. Valones will discus the paper titled “The Impact of ASEAN Integration in Public Administration & the Role of the Rule of Law: A Postmodernist Thought.”
The highlight of the event is the conferment of Dr. Ruperto P. Somera, former regional director of the Bureau of Internal Revenue, the national board director of the Association of Certified Public Accountants in Education, the vice president of the Philippine Academy of Accountants for Business Research and the chairman of RPS Tax Consultancy, as an honorary fellow of the Royal Institution, Singapore, which is the highest and the most prestigious award and recognition given by the institution.
The Court has upheld in several cases the superiority of police power over the non-impairment clause. The constitutional guaranty of non-impairment of contracts is limited by the exercise of the police power of the State, in the interest of public health, safety, morals and general welfare
In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co., the Court held that contractual restrictions on the use of property could not prevail over the reasonable exercise of police power through zoning regulations. The Court held:
With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-appellee–referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendant-appellee–it should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., “the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people.” Invariably described as “the most essential, insistent, and illimitable of powers” and “in a sense, the greatest and most powerful attribute of government,” the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengzon in Philippine Long Distance Company v. City of Davao, et al., police power “is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life.” We were even more emphatic in Vda. De Genuino v. The Court of Agrarian Relations, et al., when We declared: “We do not see why the public welfare when clashing with the individual right to property should not be made to prevail through the state’s exercise of its police power.”
x x x."
G.R. No. 141010, February 7, 2007, UNITED BF HOMEOWNERS’ ASSOCIATIONS, INC., ROMEO T. VILLAMEJOR, RAUL S. LANUEVO, ROBERTO ARNALDO, FLORENTINO CONCEPCION, BF NORTHWEST HOMEOWNERS’ ASSOCIATION, INC., KK HOMEOWNERS’ ASSOCIATION, INC., and BF (CRAB) HOMEOWNERS’ ASSOCIATION, INC., Petitioners, vs. THE (MUNICIPAL) CITY MAYOR, THE (MUNICIPAL) CITY PLANNING AND DEVELOPMENT COORDINATING OFFICER OR ZONING ADMINISTRATOR, THE (MUNICIPAL) CITY ENGINEER AND/OR BUILDING OFFICIAL, THE CHIEF OF THE PERMITS AND LICENSES DIVISION, THE SANGGUNIANG (BAYAN) PANGLUNGSOD, and BARANGAY BF HOMES, ALL OF PARAÑAQUE CITY, METRO MANILA, Respondents, EL GRANDE AGUIRRE COMMERCE AND TRADE ASSOCIATION (EL ACTO), Respondent-Intervenor.
Even as these countries' leaders refused to let boatloads of an estimated 8,000 stricken migrants land, actually going so far as to tow boats of increasingly desperate people back out to sea, local fishermen and their families – many of whom live in serious poverty – stepped in to help around 1,300 “boat people” ashore. Many applauded them, but not everyone was pleased.
Indonesian military spokesman Fuad Basya said that fishermen could deliver food, fuel and water to the boats or help with repairs to see them on their way, but that bringing the migrants to shore would amount to facilitating an “illegal entry” into Indonesia.
Horrifying reports of starvation and of violence on what the UN has referred to as “floating coffins” were dismissed by the Indonesian, Malaysian and Thai governments in the name of protecting national borders from those deemed “illegal”.
So who or what has jurisdiction for the deadly crisis at this point? And are the migrants actually “illegal”?
Indonesia and Malaysia have made it clear that their rescue agreement is a one-time-only offer, and that it guarantees no future landings of migrants arriving by boat. Crucially, they are not offering asylum, but merely temporary refuge for migrants pending “resettlement and repatriation”, which they expect to be conducted by the “international community” within a year.
While they have apparently taken responsibility for the immediate crisis, it turns out that Indonesia and Malaysia have agreed merely to allow UNHCR to “process” these people and send them either back to Myanmar or to other countries – if any willing to host them can be found.
At the time of writing, the Thai government remains resolute, bolstered by the Malaysian demand to stop further irregular migration across the Thai border into Malaysia, a well-established route for migrants seeking employment. On May 17, Major General Sansern Kaewkamnerd of the military-backed Thai government argued that “Under Thai law, all illegal immigrants must be repatriated or sent to a third country”.
The letter of the law
Despite the Indonesian, Malaysian and Thai protestations that the Rohingya are illegal migrants fleeing poverty, all three countries have nonetheless acknowledged at least some legal responsibility to assist them.
It is widely acknowledged that the Rohingya are fleeing persecution at the hands of the Myanmarese state, which denies them access to citizenship and does not protect them from violence.
This places them squarely within the terms of the 1951 UN Convention Relating to the Status of Refugees, which defines a refugee as someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
Signatories agree to the fundamental principle of non-refoulement – meaning that no one shall expel or return (in French, refouler) a refugee against her or his will, in any manner whatsoever, to a territory where she or he fears threats to life or freedom
It should come as no surprise that Indonesia, Malaysia and Thailand have never ratified this Convention – but even so, they should not be able to hide behind this to abdicate their responsibilities, since all three operate a de facto situation of recognising the right to asylum.
While neither Malaysian nor Thai immigration law explicitly recognises the right to asylum or humanitarian protection, UNHCR – whose mandate is implementation of the 1951 Convention – has long worked in both of these countries, offering assistance to refugees including Rohingya.
In 2014, approximately 100,000 Burmese refugees, including Rohingya, were registered in Malaysia. A further 80,000 were registered in UNHCR camps in Thailand along the border with Myanmar, and were processed for resettlement in third countries.
Even leaving aside their de facto recognition of the right to asylum, Malaysia and Thailand continue to profit from the labour of the hundreds of thousands of these migrants, including Rohingya. The so-called “smuggling or trafficking routes”, have long served the electronics, plantation and fishing industries in these two countries. Ironically, it was reportedly a renewed Thai effort to disrupt these routes that led to the current acute crisis.
Indonesia, on the other hand, explicitly recognised the right to asylum in a 1998 government decree, so even without ratifying the 1951 convention, the country’s implied legal responsibilities are clear. And the country has long acted as an island bulwark against the thousands of migrants heading in rickety boats for Australia, itself an infamous pioneer of naval “push-backs”.
While 8,000 migrants may now have had their lives saved from drowning, starvation or violence at sea, the crisis sparked by Thailand’s action against so-called “traffickers” is far from over. Given the current stances of the EU and the US on migrants arriving on their shores, the UNHCR is likely to struggle to find anyone in the “international community” willing to resettle the Rohingya.
In practice, that will leave these individuals languishing in camps and detention centres in which rights abuses are endemic. Migrants in Malaysia and Thailand who find themselves outside these camps and centres will be at constant risk of arrest, detention and deportation.
This has been the unsatisfactory status quo for too long. For decades now, the UNHCR has merely “processed” refugees for resettlement in third countries – and once again, in the face of one of the most serious migrant crises in the region for decades, that’s all it seems able to offer. Its support is to be warmly welcomed, but all those concerned need to take a stronger line.
It must be supported not only by other states, but by the multitude of other international organisations in the region which have a mandate to support migrants, including the International Labour Organisation and UN Women. While it doesn’t have a human rights mandate, the International Organisation for Migration also has traction with many governments in this region.
But ultimately, as things stand, too many states are being let off the hook. It is time for Indonesia, Malaysia and Thailand to ratify the 1951 Convention and come up with properly resourced national asylum systems. If they don’t, there is little hope for a real change – or for the thousands of people who remain stranded at sea. – The Conversation, May 23, 2015.
* Katharine Jones is senior research fellow, Centre for Trust, Peace and Social Relations at Coventry University.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.
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“Article 694 of the Civil Code defines “nuisance” as any act, omission, establishment, business, condition or property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) hinders or impairs the use of property.
In establishing a no build zone through local legislation, the LGU effectively made a determination that constructions therein, without first securing exemptions from the local council, qualify as nuisances for they pose a threat to public safety. No build zones are intended for the protection of the public because the stability of the ground’s foundation is adversely affected by the nearby body of water. The ever present threat of high rising storm surges also justifies the ban on permanent constructions near the shoreline. Indeed, the area’s exposure to potential geo-hazards cannot be ignored and ample protection to the residents of Malay, Aklan should be afforded.
Challenging the validity of the public respondents’ actuations, petitioner posits that the hotel cannot summarily be abated because it is not a nuisance per se, given the hundred million peso-worth of capital infused in the venture. Citing Asilo, Jr. v. People, petitioner also argues that respondents should have first secured a court order before proceeding with the demolition.
Preliminarily, We agree with petitioner’s posture that the property involved cannot be classified as a nuisance per se, but not for the reason he so offers. Property valuation, after all, is not the litmus test for such a determination. More controlling is the property’s nature and conditions, which should be evaluated to see if it qualifies as a nuisance as defined under the law.
As jurisprudence elucidates, nuisances are of two kinds: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance.
In the case at bar, the hotel, in itself, cannot be considered as a nuisance per se since this type of nuisance is generally defined as an act, occupation, or structure, which is a nuisance at all times and under any circumstances, regardless of location or surrounding. Here, it is merely the hotel’s particular incident––its location––and not its inherent qualities that rendered it a nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay West Cove could have secured the necessary permits without issue. As such, petitioner is correct that the hotel is not a nuisance per se, but to Our mind, it is still a nuisance per accidens.
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“Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is a nuisance per se. So it was held in AC Enterprises v. Frabelle Properties Corp:
We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such. Those things must be determined and resolved in the ordinary courts of law. If a thing, be in fact, a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the Sangguniang Bayan. (emphasis supplied)
Despite the hotel’s classification as a nuisance per accidens, however, We still find in this case that the LGU may nevertheless properly order the hotel’s demolition. This is because, in the exercise of police power and the general welfare clause, property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the government. Otherwise stated, the government may enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to promote the general welfare.
One such piece of legislation is the LGC, which authorizes city and municipal governments, acting through their local chief executives, to issue demolition orders. Under existing laws, the office of the mayor is given powers not only relative to its function as the executive official of the town; it has also been endowed with authority to hear issues involving property rights of individuals and to come out with an effective order or resolution thereon. Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to order the closure and removal of illegally constructed establishments for failing to secure the necessary permits, to wit:
Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. –
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(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall: x x x x
(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall: x x x x
(vi) Require owners of illegally constructed houses, buildings or other structures to obtain the necessary permit, subject to such fines and penalties as may be imposed by law or ordinance, or to make necessary changes in the construction of the same when said construction violates any law or ordinance, or to order the demolition or removal of said house, building or structure within the period prescribed by law or ordinance. (emphasis supplied)”
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“In the case at bar, petitioner admittedly failed to secure the necessary permits, clearances, and exemptions before the construction, expansion, and operation of Boracay Wet Cove’s hotel in Malay, Aklan. To recall, petitioner declared that the application for zoning compliance was still pending with the office of the mayor even though construction and operation were already ongoing at the same time. As such, it could no longer be denied that petitioner openly violated Municipal Ordinance 2000-131, which provides:
Petitioner cannot justify his position by passing the blame onto the respondent mayor and the latter’s failure to act on his appeal for this does not, in any way, imply that petitioner can proceed with his infrastructure projects. On the contrary, this only means that the decision of the zoning administrator denying the application still stands and that petitioner acquired no right to construct on the no build zone. The illegality of the construction cannot be cured by merely tendering payment for the necessary fees and permits since the LGU’s refusal rests on valid grounds.
Instead of taking the law into his own hands, petitioner could have filed, as an alternative, a petition for mandamus to compel the respondent mayor to exercise discretion and resolve the controversy pending before his office. There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those matters, when refused. Whether or not the decision would be for or against petitioner would be for the respondent mayor to decide, for while mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in a particular way. What would have been important was for the respondent mayor to immediately resolve the case for petitioner to be able to go through the motions that the zoning clearance application process entailed.”
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“In the case at bench, the due process requirement is deemed to have been sufficiently complied with. First, basic is the rule that public officers enjoy the presumption of regularity in the performance of their duties. The burden is on the petitioner herein to prove that Boracay West Cove was deprived of the opportunity to be heard before EO 10 was issued. Regrettably, copies of the Cease and Desist Order issued by the LGU and of the assailed EO 10 itself were never attached to the petition before this Court, which documents could have readily shed light on whether or not petitioner has been accorded the 10-day grace period provided in Section 10 of the Ordinance. In view of this fact, the presumption of regularity must be sustained. Second, as quoted by petitioner in his petition before the CA, the assailed EO 10 states that petitioner received notices from the municipality government on March 7 and 28, 2011, requiring Boracay West Cove to comply with the zoning ordinance and yet it failed to do so. If such was the case, the grace period can be deemed observed and the establishment was already ripe for closure and demolition by the time EO 10 was issued in June. Third, the observance of the 10-day allowance for the owner to demolish the hotel was never questioned by petitioner so there is no need to discuss the same. Verily, the only grounds invoked by petitioner in crying due process violation are (1) the absence of a court order prior to demolition and (2) the municipal government’s exercise of jurisdiction over the controversy instead of the DENR. Therefore, it can no longer be belatedly argued that the 10-day grace period was not observed because to entertain the same would result in the violation of the respondents’ own due process rights.
Given the presence of the requirements under Sec. 444 (b)(3)(vi) of the LGC, whether the building constituted a nuisance per se or a nuisance per accidens becomes immaterial. The hotel was demolished not exactly because it is a nuisance but because it failed to comply with the legal requirements prior to construction. It just so happened that, in the case at bar, the hotel’s incident that qualified it as a nuisance per accidens––its being constructed within the no build zone––further resulted in the non-issuance of the necessary permits and clearances, which is a ground for demolition under the LGC. Under the premises, a court order that is required under normal circumstances is hereby dispensed with.”
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G.R. No. 211356, September 29, 2014, CRISOSTOMO B. AQUINO, PETITIONER, VS. MUNICIPALITY OF MALAY, AKLAN, REPRESENTED BY HON. MAYOR JOHN P. YAP, SANGGUNIANG BAYAN OF MALAY, AKLAN, REPRESENTED BY HON. EZEL FLORES, DANTE PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, JUPITER GALLENERO, OFFICE OF THE MUNICIPAL ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP CHIEF, BORACAY FOUNDATION, INC., REPRESENTED BY NENETTE GRAF, MUNICIPAL AUXILIARY POLICE, AND JOHN AND JANE DOES, RESPONDENTS.