Friday, March 15, 2019

America's Dysfunctional Justice System

Can Our System of Justice Be Trusted?

Is Citizenship Dead?

The Future of the U.S. Supreme Court

Public Access to Law Under Threat, with Carl Malamud

Starting a Legal Non-Profit

Trey Goff: A Constitution for a Free Society

'State of Surveillance' with Edward Snowden and Shane Smith

Debtors' Prisons: Life Inside America’s For-Profit Justice System

How Police Departments Use Civil Forfeiture to Collect Billions

History and Human Rights: A Panel Discussion

Around 1948: Human Rights and Global Transformation

Universality in the Human Rights Council

Thursday, March 14, 2019

Simulated Birth Rectification Act - R.A. No.11222


See -
https://newsinfo.inquirer.net/1095589/duterte-signs-law-simplifying-adoption-process?utm_expid=.XqNwTug2W6nwDVUSgFJXed.1


"x x x.

Duterte signs law simplifying adoption process.


By: Nestor Corrales - Reporter / @NCorralesINQ
INQUIRER.net / 10:29 AM March 14, 2019




MANILA, Philippines – President Rodrigo Duterte has signed into law a measure that would simplify the adoption process in the country.

The President signed the Simulated Birth Rectification Act on February 21 but a copy of the law was released only to the media on Thursday.

Under the new law, rectification of simulated births would be allowed through a simpler administrative proceeding.

The law would “grant amnesty and allow the rectification of the simulated birth of a child where the simulation was made for the best interest of the child.

Birth simulation, the law said, “ refers to the tampering of the civil registry to make it appear in the record of birth that a child was born to a person who is not the child’s biological mother.”

According to the law, a “person or persons who, prior to the effectivity of this Act, simulated the birth of a child, and those who cooperated in the execution of such simulation, shall not be criminally liable for such act provided that the simulation of birth was made for the best interest of the child and that the child has been consistently considered and treated by such person or persons his, her, or their own daughter or son.”

The law stated that a person or persons who simulated the birth of a child “may avail of administrative proceedings for the adoption and rectification of the simulated birth record” of a child “provided that the child has been living with the person for at least three years before the effectivity” of the law.

Section 6 of the new law stated that “all petitions, documents, records, and papers relating to adoption and rectification of simulated births” could not be “used as an evidence against those who simulated the birth of a child or who cooperated in the execution of such simulation in any criminal, civil, or administrative proceeding.”

The requirements for administrative adoption include that one just be a Filipino citizen of legal age, possess full civil and legal rights, of good moral character, have not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, and in a position to support and care for the child in keeping with the means of the family.

“In case of adoption by a married couple, where one of the adopters is a foreign national married to a Filipino, the law stated that “the foreign national must have been residing in the Philippines for at least three continuous years prior to the filing of the petition for adoption and application for rectification of simulated birth record”

The further said that the written consent of the adoptee is needed if he or she is 10 years old or over.

The same is also required from the “legitimate and adopted daughters and sons, 10 years old and above, of the adopter and adoptee, if any.”

It also added that written consent is also required from the “illegitimate daughters and son, 10 years old and above, of the adopter if living with said adopter and the latter’s spouse, if any.”

“The petition for adoption with an application for rectification of simulated birth record shall be in the form of n affidavit and shall be subscribed and sworn to by the petitioner or petitioners before any person authorized by the law to administer affirmations and oaths,” the law said.

The law mandated that the petition be supported by a copy of the simulated birth or foundling certificate of the child, affidavit of admission if the simulation of birth was done by a third person, a certification by the village chief attesting that the petitioner or petitioners is a resident or are residents of the barangay and that the child has been living with the petitioner or petitioners for at least three years prior to the effectivity of the law, and the affidavits of at least two disinterested persons residing in the same barangay where the child resides, attesting that the child has been living with the petitioner or petitioners for at least three years prior to the effectivity of the law.

A certificate declaring the child legally available for adoption from the Department of Social Welfare and Development (DSWD) is also required.

Once the requirements are completed, a petition shall be filed with the city or town’s social welfare and development office.

The petition will be reviewed and will pass through the regional director and then the secretary of the DSWD.

The law said that if the adoption petition is granted, “the adoptee shall be considered the legitimate daughter or son of the adopter for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate daughters or sons born to them without discrimination of any kind.”

“Except where a biological parent is the spouse of the adopter, all legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested in the adopter,” the law stated.

An adoptee may file a petition for rescission with the assistance of the DSWD if he or she is a minor or over 18 years old but incapacitated.

The adoption may be rescinded if there is repeated physical or verbal maltreatment to the adopter, an attempt on the life of the adoptee, sexual assault or violence or the abandonment and failure to comply with parental obligations.

If the petition for rescission is granted, “the parental authority of the adoptee’s biological parents shall be restored if the adoptee is still a minor or incapacitated.”

The new law also penalizes the violators with imprisonment ranging from 6 years and 1 day to 12 years, and/or a fine of no less than P200,000 who obtain consent for an adoption through coercion, undue influence, fraud, improper inducement, or other similar acts. /muf

x x x."

Read more: https://newsinfo.inquirer.net/1095589/duterte-signs-law-simplifying-adoption-process#ixzz5i8jZnFLz

“Motorcycle Crime Prevention Act” or Republic Act No. 11235



See - https://news.abs-cbn.com/news/03/14/19/duterte-signs-law-requiring-bigger-color-coded-plates-for-motorcycles




"x x x.

Duterte signs law requiring bigger, color-coded plates for motorcyclesABS-CBN News
Posted at Mar 14 2019 01:57 PM | Updated as of Mar 14 2019 03:18 PM



MANILA - President Rodrigo Duterte has signed into law a measure requiring motorcycles to have bigger, readable, and color-coded number plates.

“Motorcycle Crime Prevention Act” or Republic Act No. 11235 aims to prevent crimes by making number plates more readable from a distance. The plates will be also color-coded based on the country’s regions.

Duterte signed the law last March 8. Malacanang released a copy Thursday.

Under the new law, a motorcycle owner must register his motorcycle within 5 days after purchase, and failure to do so would result in imprisonment or a fine of not less than P25,000.

Driving without a number plate can result in imprisonment and a fine of P50,000 to P100,000. Enforcers will also confiscate the motorcycle and it will only be released upon proof of ownership and “payment of the costs of seizure, and compliance with a number plate or readable number plate.”

Law enforcers may also face jail time if they are unable to report or surrender a seized motorcycle within 24 hours.

The use of stolen plates will also have a fine of P50,000 to P100,000.

If proven that a motorcycle was used for a crime of grave felony or escape from the scene of a crime, its owner, driver and passenger will face 12 to 40 years in prison.

An impounding center will also be set up and a digital data of seized motorcycles will be shared real-time with the Philippine National Police (PNP) and the Land Transportation Office (LTO).

The Joint LTO and PNP Operations and Control Center will have a hotline to address concerns relating to crimes committed with the use of motorcycles.

Motorcycle owners will have to renew their registration and apply for the new number plates before June 30 this year. The LTO will have to produce and release the plates by December 31, 2019. By next year, the penal provisions of the new law will take effect.

x x x."

The Lord's Prayer Explained

PhP 400,000 is new jurisdictional amount for small claims in MetTCs effective April 1, 2019


See - http://sc.judiciary.gov.ph/pio/news/2019/02/02-27-19.php

"x x x.

SMALL CLAIMS NOW UP TO 400K IN METROPOLITAN TRIAL COURTS

February 27, 2019
http://sc.judiciary.gov.ph


The Supreme Court increased the limit of small claims cases filed before the Metropolitan Trial Courts from P300,000.00 to P400,000.00, beginning 1 April 2019.
 

Upon the recommendation of the Office of the Court Administrator to Associate Justice Diosdado M. Peralta, Chairperson of the Special Committee on Small Claims Cases, who took it up with the Court en banc, the initiative was to streamline and harmonize the rules of procedure for money claims filed before all first level courts.

Before the concept of small claims was introduced in our court system, the Revised Rule on Summary Procedure applied to money claims not exceeding P100,000.00 in first level courts outside Metro Manila, while P200,000.00 in first level courts within Metro Manila, otherwise known as the Metropolitan Trial Courts. 

These amounts were later increased to P300,000.00 and P400,000.00, respectively, under Republic Act No. 7691. 

In 2010, the Court authorized the implementation of the Rule of Procedure for Small Claims Cases to all first level courts nationwide for money claims of not more than P100,000.00. 

In 2015, the Supreme Court increased this to P200,000.00 and in 2018, to P300,000.00.
As a consequence, money claims filed before the first level courts outside Metro Manila were all covered by the Revised Rules of Procedure for Small Claims Cases, whereas those filed before the Metropolitan Trial Courts were considered either as small claims cases for claims of up to P300,000.00, or proceeded under the Revised Rule on Summary Procedure, for claims above P300,000.00 to P400,000.00.

According to Justice Peralta, this move by the Court “will result in the speedier and more efficient resolution of money claims cases, as well as help increase the country’s score in the World Bank’s Ease of Doing Business Report.” 

In the World Bank’s 2019 Report, the Philippines ranked 124th out of 190 countries, dropping from its 2018 ranking of 113. 

This score is based on a number of indicators, one of which involves measuring the time and cost of resolving commercial disputes before the Metropolitan Trial Court in Quezon City for claims amounting to 200% of the Philippine’s income per capita, or P337,331.00. 

Under the Revised Rules of Procedure for Small Claims Cases, courts are mandated to resolve a case within thirty (30) days from the day the statement of claim was filed. 

Justice Peralta “believes that applying the Revised Rules of Procedure for Small Claims Cases in all money claims filed before the Metropolitan Trial Courts will increase the country’s score in next year’s report.” 

He added that “the increase is in accord with the four-point agenda of Chief Justice Lucas P. Bersamin for the Judiciary, to make our rules more efficient, effective and responsive to the needs of the court users.”

In a message relayed to the Court, Department of Trade and Industry (DTI) Secretary Ramon M. Lopez also expressed optimism that “the move initiated by the Supreme Court will benefit small entrepreneurs using the court system and result in an increase in the country’s ranking in the World Bank Doing Business Survey.” 

He “thanked the Supreme Court for it strong support to Ease of Doing Business reforms. The SC’s swift action to increase the threshold for small claims in the Metropolitan Trial Courts in Metro Manila will significantly reduce the number of days for trial and judgment under the DB Enforcing Contracts indicator.”

The reform also decreases cost on the part of the claimant by approximately 20%, since attorney’s fees are no longer necessary given that lawyers are not allowed to represent a party in small claims cases.

“This reform,” Secretary Lopez explains, “is one of the initiatives of the government to promote Ease of Doing Business. The DTI is optimistic that the strong partnership between the Executive and the Judicial branches of government will bring positive results. We look forward to working with the Supreme Court to improve the quality of judicial processes index, particularly in the area of court automation and case management.”

x x x."

Dissent in the Boracay temporary closure case


See - https://www.rappler.com/nation/224513-dissenting-opinions-supreme-court-decision-boracay-closure




"x x x.


Dissenters slam SC on Duterte’s Boracay win: ‘Realization of a tyrant’

Justices Leonen and Caguioa write strong dissenting opinions that allude to Duterte as a tyrant and dictator



By Lian Buan
@lianbuan
Published 5:51 PM, February 27, 2019
Updated 5:51 PM, February 27, 2019




MANILA, Philippines – Supreme Court Justices Marvic Leonen and Benjamin Caguioa slammed the Supreme Court majority decision that upheld President Rodrigo Duterte’s 6-month closure of Boracay Island, saying that the ruling “leads to the realization” of tyranny.

Leonen and Caguioa were the only two dissenters in the 11-2 en banc decision that validated the legality of Duterte’s Proclamation No. 475 that placed areas in Boracay under a state of calamity to prepare it for closure and rehabilitation.

The ruling was penned by Associate Justice Mariano del Castillo, who said that “Proclamation No. 475 is a valid police power measure.”

“This ponencia, which prioritizes swiftness of action over the rule of law, leads to the realization of the very evil against which the Constitution had been crafted to guard against –tyranny, in its most dangerous form,” said Caguioa in his strongly-worded dissenting opinion.
Caguioa also has this to say of his colleagues’ decision: “To say that we believe in our Constitution, and yet discard it so easily because of expediency, is to champion hypocrisy to the detriment of our national soul.”

Leonen said in his dissent that “upholding the framework contained in Proclamation No. 475 invites a regime that is borderline authoritarian.”
Police power

The petition filed by Boracay workers said Duterte cannot invoke police power as it is the authority of the legislative branch and not the executive.Del Castillo’s ponencia said that it will be “insignificant” to discuss whether Duterte used a power that belongs to the legislative. The ruling said the proclamation did not impair people’s right to travel and therefore did not alter “the relationship between the State and the people.”

“The proclamation is therefore not a law and conversely, the President did not usurp the law-making power of the legislature,” said the ruling.
Caguioa called this a “constitutional shortcut.”

“It finds absolutely no basis in law, and unduly permits the consequent impairment of the rights to travel and due process by executive fiat,” Caguioa said.

Disaster law

Duterte’s proclamation cited the Disaster Risk Reduction and Management Act.

Leonen and Caguioa both pointed out that the disaster law empowered mainly local government actors in thedeclaration of a state of calamity.

“The President cannot take over what has been statutorily granted to local government units,” said Leonen.

Leonen noted further that Duterte’s proclamation lacked the justification of empowering the President to lift the state of calamity whenever he wants, and lacked the standard used for closing the island for 6 months.

The closure of the island in itself, the two justices said, lacked legal basis.

“There can be no serious doubt that the six-month closure of Boracay, as ordered by Proclamation 475, cannot be anchored on RA 10121. To conclude as such requires an Olympic leap in logic which is totally unwarranted,” said Caguioa.

Social justice

The ponencia said that the workers have no legal standing to file the case, as they can always find livelihood outside the island.

Leonen said that ambulant vendors such as the petitioners cannot be asked to simply just find jobs elsewhere.

“Not all informal workers are mobile simply because not all of them have financial resources to move from one (1) place to another. Not all of them have multiple skills that would allow them the flexibility to be employed in another line of work immediately when their current consistent source of income stops,” said Leonen.

Leonen also said the majority justices should follow the wisdom of the Constitution, which “calls attention to sensitivity to social justice.”

Overreach

Caguioa said Duterte’s allies in Congress could have initiated a bill to respond to Boracay's problems, which the President could have prioritized.

That way, Congress could have passed an enabling law, said Caguioa.

The majority decision said that the right to travel was not impaired since it was only temporary and consequential.

Caguioa noted that the Constitution set high standards for when the government can impair the right to travel, such as “in the interest of national security, public safety or public health.”

Caguioa said that invoking one of those standards also has to be “on the basis of a law explicitly providing for the impairment.”

Without such law, there can be no impairment, said Caguioa, as he recalled the recent decision of the Supreme Court that declared unconstitutional former justice secretary’s Leila de Lima’s Watchlist Order against Gloria Arroyo, otherwise known as the Genuino case.

“The Court did not hesitate to protect the Constitution against the threat of executive overreach in Genuino. The refusal to do so now is nothing less than bewildering,” said Caguioa.

Leonen said: “Authoritarian solutions based on fear are ironically weak. We still are a constitutional order that will become stronger with a democracy participated in by enlightened citizens. Ours is not, and should never be, a legal order ruled by diktat.” – Rappler.com


x x x."

Deadly Tokhang drug war not a good model for the world


See - https://www.gmanetwork.com/news/news/nation/687130/phl-war-on-drugs-not-a-good-model-for-any-country-un-rights-chief/story/?utm_source=GMANews&utm_medium=Facebook&fbclid=IwAR3FfaAJFlbZGgPsGNerz4MihsOhcNtqgCOfOAIJ2RMAwvRuT4-ykjGqVGQ




"x x x.


PHL war on drugs not a good model for any country — UN rights chief
Published March 6, 2019 8:20pm


President Rodrigo Duterte's war on illegal drugs is not a good model for any other country to follow in stamping out the menace, United Nations High Commissioner for Human Rights Michelle Bachelet said.

"The drug policies in place in the Philippines, and its lack of respect for rule of law and international standards, should not be considered a model by any country," Bachelet, former president of Chile, said in her address to the UN Human Rights Council in Geneva on the human rights situation around the world.

Bachelet also raised "extreme concern" by the Philippine Congress' consideration of measures to reintroduce the death penalty fro drug-related crimes, and to reduce the age of criminal responsibility from 15 to 12, or even nine years old.

In her address, she said that several sources estimate that up to 27,000 people may have been killed in the implementation of the campaign against illegal drugs that started when Duterte assumed office in June 2016.

Bachelet said that despite "serious allegations of extra-judicial killings," only one case, "the widely reported killing of a teenage boy," has been subject to investigation and prosecution

"People who have fallen into the trap of drug reliance need help to rebuild their lives; drug policies should not be more of a threat to their lives than the drugs they are abusing," she said.

She urged the Philippine government "to adopt a public health approach, and harm reduction initiatives, that comply with human rights standards, as recommended to the 2016 General Assembly Special Session."

Bachelet also noted that "Special Rapporteurs of this Council have been subjected to threats; and opposition politicians, human rights defenders and journalists have been threatened, attacked and jailed."

In a separate Facebook post, Agnès Callamard, the Special Rapporteur on extrajudicial, summary or arbitrary executions at the Office of the United Nations High Commissioner for Human Rights, welcomed the statement.

"It is important that the OHCHR takes full note of the massive human rights crisis in the Philippines and acts accordingly. This statement is a crucial step. The Philippines authorities must now respond effectively to the repeated denunciations of the situation in the country," she said.

Callamard called on the Philippine government anew to allow "independent and impartial investigations into the thousands of killings they have themselves attributed to the Philippines Police and Security Forces."

Duterte had repeatedly ignored criticisms from the international community on his campaign against illegal drugs, even vowing that it could be more bloody in the days ahead.

Bachelet took the post middle of 2018, replacing Jordan's Zeid Ra'ad al-Hussein, a critic of Duterte's anti-illegal drugs policy.

Then presidential spokesperson Harry Roque said the administration sees better ties with the UN Human Rights Council with Bachelet at the helm.

"The entire community of states perhaps elected her for a reason, noting that no less than the United States has opted to withdraw from the UN Human Rights Council," Roque had said.

"I think the election of this new High Commissioner for Human Rights must be a result of compromise and we're optimistic that we will have better relations with the new High Commissioner for Human Rights," he added.—LDF, GMA News.

x x x."

One-person corporation vs single proprietor



See - https://www.philstar.com/business/2019/03/10/1900056/one-person-corporation-vs-single-proprietor


"x x x.


One-person corporation vs single proprietor


AS EASY AS ABC - Atty. Alex B. Cabrera 

(The Philippine Star) - March 10, 2019 - 12:00am


If you are an entrepreneur, and you faced the mirror, talked to yourself to arrive at a business decision, and made a note about what you resolved all by yourself, then you just demonstrated compliance with the rules for a one-person corporation (OPC) – an exciting new juridical entity created under the freshly amended corporation code.

The OPC used to be limited only to religious corporations where the chief archbishop, rabbi, or presiding elder of the religious denomination, sect or church can apply for and become a sole corporation. Before, the nearest recourse was just to be a single proprietor, or organize a corporation and admit four other persons with an ownership of one share each.

Today, any single proprietor (or even anyone with a non-profit endeavor) can become a corporation. No need for four other incorporators. No need for a board of directors. It can be a one-man show – subject only to disclosing the name of the corporation along with the label “OPC.”

Is it worth being organized as an OPC versus a single proprietor? This is not rocket science, read on:

1. Liability. An OPC has a separate juridical personality from its individual owner. The value of this is that a juridical person is only liable to the extent of its assets. So if it loses money, or is sued, and it does not have money to pay, the creditor or claimant loses. It is judgment-proof outside of the assets invested in or owned by the corporation (the owner used fraud to take advantage). A single proprietor, on the other hand, is directly liable as the businessman and the private person are one and the same human individual. So a single proprietor can be made liable up to his boxer shorts, so to speak.

2. Tax. An OPC has better access to the standard optional deduction of 40 percent for income tax purposes. A corporation can deduct direct costs first, then deduct the 40 percent optional deduction from its gross income. An individual in business, on the other hand, can deduct the 40 percent optional deduction only from its gross revenue or sales. Both can use the itemized deduction and they are even in that respect. But a corporation wins over an individual if they both use the optional deduction because a corporation is also able to deduct the cost of goods or cost of service. The only advantage of a single proprietor is when it has a small revenue not exceeding P3 million as it can be subject to a final tax of eight percent, compared to a corporation’s 30 percent income tax plus percentage tax or VAT.

3. Succession. When the single proprietor dies, the assets of his business (as well as the liabilities) are passed on to his children or heirs – but not the license over the business, which expires along with the individual businessman. If the children or heirs want to continue the business, they must secure a new license to do business. With an OPC, succession and business continuity are so much better. Under the new corporation code, a corporation’s life is now perpetual. This perpetuity is preserved even if the OPC owner is a mortal.

Here is how it works: the OPC owner, as early as the application for registration, designates a nominee and an alternate nominee, as required by the SEC. In the event of death or incapacity of the OPC owner, the nominee takes over to run the business, temporarily, to allow for smooth turnover of the business and powers to the heir who is interested to continue the business. There is no need to register a new corporation or business for the heir who takes over.

4. Growth and Longevity. If a single proprietorship, that is getting bigger, would later wish to change its form of business to a corporation, it can be done. However, cessation of business as a single proprietorship or the transfer of assets to a regular corporation can have tax costs. On the other hand, without changing its registration or disturbing continuity of life, an OPC can change into a regular corporation where it can receive investors or admit strategic partners. All the OPC needs to do is to amend its articles of incorporation to follow the required governance for regular corporations, such as having a board of directors (which should not exceed 15) and having regular stockholders’ meetings.

It could also be the other way around. A rich owner of an OPC may wish to acquire regular corporations and be a one-man show in such acquired ventures. The regular corporations can be converted to an OPC, no problem.

If there is anything to watch out for regarding OPCs, it’s that it can also be used for non-profit purposes, like foundations. And since the world is not bereft of shrewd individuals or bad people, the OPC can be more easily used as a vehicle to take advantage of the trust of those the corporation deals with. This is not easy to do if, for instance, one approaches for solicitations as a single person/philanthropist. So we expect the SEC to protect the public on this potential use of OPCs, in addition to money laundering and terrorist money concerns.

The positive impact, however, of OPCs is immense, especially in the Philippine business environment, where an estimated 95 percent consist of MSMEs, and a substantial but unverified number accounts for the unregistered economy. There is also the aspirational factor – the pride in owning a corporation with one’s name or personal brand.

I was discussing with a female lawyer of the firm and challenged her to set up her “Corporation Aimee, OPC” even if the primary purpose of the corporation is just the preservation of self-beauty. That may have been said in jest but the point is, who would say that one’s venture is not viable just because it’s untested? The OPC is what I would call the synonym of a “good start.”

* * *

Alexander B. Cabrera is the chairman of the Integrity Initiative Inc. (II Inc.), a non-profit organization that promotes common ethical and acceptable integrity standards. He is also the chairman and senior partner of Isla Lipana & Co./PwC Philippines. Email your comments and questions to aseasyasABC@ph.pwc.com. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.
Read more at https://www.philstar.com/business/2019/03/10/1900056/one-person-corporation-vs-single-proprietor#LDoedAv46M0OkGlP.99x x x."