Friday, August 30, 2013

On prisons

I have been a trial lawyer since 1985. Professionally, I'm supposed to be unmoved by the inhuman  conditions of our overcrowded and under-funded prisons.

But up to now, I can't stomach staying for long inside a prison. Human heat and foul odor from prisoners and the dead air circulating inside the closed perimeters of the prisons always impact on my sensitive cardio-pulmonary health.

I suffer from COPD or chronic obstructive pulmonary disease, e.g., chronic asthma and bronchitis.

The last time I entered our city jail was about 3 yrs ago on the occasion of the JUSTICE ON WHEELS program of the Supreme Court which was held in Las Pinas City in coordination with City Mayor Vergel AGUILAR, City Representative Cynthia VILLAR, and the local Judges Association and the local Bar Association. 

I assisted the local Judges Association in welcoming and facilitating the special visit of former Chief Justice REYNATO PUNO, in my capacity as the founder and past chairman/president of the Las Pinas City Bar Assn (LPBA) and as the past vice president of the Integrated Bar of the Philippines (IBP) - Pasay Paranaque Las Pinas Muntinlupa (PPLM) Chapter.       

The prisoners of Las Pinas City are fortunate because the city has a fairly new, spacious,  well-funded, and well-maintained city jail building, complete w/ a basketball court, a library, and other social amenities. The city also has a fairly new YOUTH CENTER that accommodates children in conflict w/ the law. The center is under the management of the city social workers.

The  executive judges of the city, in coordination w/ the Public Attorneys Office (PAO) and the local Bar Associations and pursuant to the mandate of the Rules of Criminal Procedure, hold regular MONTHLY VISITATIONS to the city jail. The goals are to (a)  check the conditions of the prisoners, (b) review the records of their pending cases, and (c) expedite the release of detention prisoners who have been detained for a period equivalent to or in excess of the imposable penalties for the crimes for which they were being charged.

Former Executive Judge Joselito VIBANDOR regularly celebrated his birthday inside the city jail, treating the prisoners to a nice lunch, an entertainment/social program, and free legal aid.

I admire his warm and selfless personality as a judge and as a law professor (Arellano Law School).

In the past I celebrated my birthday by distributing lunch, rosaries, and personal toiletries, e.g. toothbrush, toothpaste, shampoo, bath soap, and laundry soap, plus juice, biscuits and basic medicine, to the prisoners.

It was an outreach activity of our law office (Laserna Cueva-Mercader Law Offices).

Despite the fairly comfortable condition of our city jail, I know that the current number of its detention prisoners exceeds its physical capacity.

Overcrowding is a chronic problem among the prisons in our country, not to mention the very low per capita budget for food and medicine for prisoners and the lack of sports facilities, libraries, prayer rooms, proper sanitation and water systems, and other basic amenities/facilities -- all of which are required to maintain a humane, safe, clean, comfortable and secured prison that meets the minimum international standards imposed by the United Nations (UN).

- Atty. Manuel J. Laserna Jr.
  Las Pinas City, Philippines  


Thursday, August 29, 2013

"Protected witness" or "state witness". Does Napoles deserve such a privilege?

The issue that faces P-Noy and De Lima is whether or not to accept Napoles:

1. As a "protected witness" (in which case, Napoles will not be impleaded by the Ombudsman as an accused in the criminal Information/s to be filed in Sandiganbayan, hence, freed from the pains to be caused by a warrant of arrest in non-bailable plunder case/s), or,

2. As a "state witness" (in which case Napoles will be impleaded by the Ombudsman as an accused in the criminal Information/s to be filed with the Sandiganbayan, hence, to be subjected to a warrant of arrest in a non-bailable plunder case/s, while the court hears the motion of the Ombudsman to discharge Napoles as a "state witness").

Protected Witness -

Section 12 of RA No. 6981 ("Witness Protection, Security and Benefit Act") provides that "the issuance of a certification of admission into the program shall be given full faith by the provincial or city prosecutor who is required NOT TO INCLUDE the witness in the criminal complaint or information, and if included, TO PETITION FOR HIS DISCHARGE in order that he can be utilized as a state witness."

Sec. of RA No. 6981 provides that "any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program."

The qualifications of the protected witness are as follows:

"x x x.

a) the offense in which his testimony will be used is a GRAVE FELONY as defined under the Revised Penal Code, or its equivalent under special laws;

b) his testimony can be substantially CORROBORATED in its material points;

c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to THREATS TO HIS LIFE OR BODILY INJURY or there is a likelihood that he will be KILLED, FORCED, INTIMIDATED, HARASSED OR CORRUPTED to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and

d) he is NOT a law enforcement officer, even if he would be testifying against other law enforcement officers. In such a case, only the immediate members of his FAMILY may avail themselves of the protection provided for under this Act.

x x x."

If the Department of Justice, which administers the Witness Protection Program, is convinced that the requirements of RA No. 6981 and its implementing rules and regulations have been complied with, it "shall admit said applicant to the Program, require said witness to execute a sworn statement detailing his knowledge or information on the commission of the crime, and thereafter issue the proper certification."

State Witness -

In re: the matter of "state witness", Sec. 17, Rule 119 of the Rules of Criminal Procedure provides that "when two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:

(a)   There  is  ABSOLUTE NECESSITY for the  testimony of the accused whose discharge is requested;

(b)   There is NO OTHER DIRECT EVIDENCE AVAILABLE for the proper prosecution of the offense committed, except the testimony of said accused;

(c)   The   testimony   of said   accused   can   be   substantially CORROBORATED  in its material points;

(d)   Said accused does NOT appear to be the MOST GUILTY; and

(e)   Said accused has NOT at any time been CONVICTED of any offense involving moral turpitude."

The same section provides that "evidence adduced in support of the discharge shall automatically form part of the trial' and that "if the court DENIES the motion for discharge of the accused as state witness, his sworn statement shall be INADMISSIBLE in evidence."

Sec. 18, Rule 119 provides that the order discharging an accused as a state witness  "shall amount to an ACQUITTAL of the discharged accused and shall be a BAR TO FUTURE PROSECUTION for the same offense, UNLESS the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge."

Will Napoles qualify as a "protected witness" or as a "state witness" considering that Benhur Luy, who appears to be a mere salaried subordinate and follower of Napoles (i.e., does not appear to be the "most guilty"), had been previously admitted by the DOJ as a protected witness under RA No. 6981 and whose previous confession will surely contradict the future confession of Napoles, if any?

At the end of the day, it is the call of the Ombudsman, in coordination with the Department of Justice (alter ego of P-Noy), based on the facts of the case and on the available documentary evidence, (a) whether or not to admit Napoles as a "protected witness" under RA No. 6981, or (b) whether or not to implead her as an accused and, later on, move before the Sandiganbayan to discharge her as a "state witness" under Rule 119 of the Rules of Criminal Procedure.

- Atty. Manuel J. Laserna Jr.
Las Pinas City

Monday, August 26, 2013

CA junks Villar appeal on reclamation project | BusinessWorld Online

see - CA junks Villar appeal on reclamation project | BusinessWorld Online

"x x x.

In its April 26 decision, the CA said Ms. Villar failed to provide “competent, credible and reliable evidence that the proposed reclamation project will expose her and the Las Piñas and Parañaque residents and their properties to catastrophic environmental damage”.

The CA also said Ms. Villar failed to establish “the causal link between the catastrophic environmental damage” linked to the coastal bay project.

“The credibility, reliability and objectivity of the scientific studies presented by respondent AllTech and the totality of the evidence presented leave very little occasion to ponder that the constitutional right of the people to a balanced and healthful ecology hangs in the balance because of the reclamation project,” the decision read.

Ms. Villar claimed in her March 16, 2012 petition before the Supreme Court (SC) that the project, to be led by AllTech Contractors, Inc. in partnership with the government, will inundate two-thirds of Las Piñas, Parañaque and Bacoor, Cavite.

On April 24, 2012, the SC granted the writ of kalikasan (nature) petition of Ms. Villar and remanded the case to the CA to determine the issuance of the writ.

AllTech submitted unsolicited proposals to the local government units of Las Piñas and Parañaque in 2009 for the reclamation of around 500 hectares of land along the coast of Manila Bay (381.26 hectares in Las Piñas and 174.88 hectares in Parañaque).

Both cities approved the proposal and subsequently entered into separate contractual joint-venture agreements which was later on approved by the Philippine Reclamation Authority. -- Mikhail Franz E. Flores.

x x x."

Help bar non-passers, schools told

see - Help bar non-passers, schools told

"x x x.

While the Supreme Court (SC) noted that many failed to pass the bar examinations, Sereno said they could not reduce the standards set for what is considered the toughest examination in the country.

“The bar examinations must be related to the question if we are producing the kind of lawyers our society needs today. None of us justices in the Supreme Court, want to be associated with a mediocre system. We aim for excellence and competence,” Sereno said.

She said the High Court should examine the conduct of the bar examinations to see if they produce competent lawyers lest the credibility of the legal profession suffers.

“We want to show the public that those who become lawyers are men and women you can trust. If loosening the bar requirement will result in the deterioration of the kind of service we have, we’re on the wrong path,” she said.

Sereno noted that some of those who failed to pass the bar examinations didn’t make it because of “poor English.” “Are our law schools teaching effectively?,” she said.

Apart from developing command of the English language, Sereno said law schools should also teach their students to ask the right questions and to go beyond memorization.

“Are you able to ask your students the right questions during class? The value added for memorization is small but creative thinking is significant and over time,” she told the law professors.

During last year’s bar examinations, only 17.76 percent or 949 out of 5,343 law graduates made it. The Supreme Court said it was the lowest passing rate in 12 years.

Lawyer Joan Largo, dean of the USC College of Law, expressed dismay over how last year’s bar examinations was conducted.

She said the low passing rate in the 2012 bar examinations was caused by the unreasonable length of the exam.

Largo said bar examinees were asked to answer a set of 100-point multiple choice questions (MCQ) and another 100-point essay at the same time.

She said it was physically and humanly impossible to answer the questions sensibly given the short period of time.

x x x."

Read more:
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Friday, August 23, 2013

A practical guide to warnings in the workplace - Employment and HR - Australia

see - A practical guide to warnings in the workplace - Employment and HR - Australia

I recommend these Australian labor law practice re WARNINGS to workers.

"x x x.


A written warning should follow a warning meeting, at the conclusion of which, the employee is advised that a written warning letter will follow. The warning letter should follow in a day or so post the meeting. It is suggested that a written warning should:
  • record who was present;
  • record the fact the employee was invited to have a support person present (if they did not avail themselves of this opportunity);
  • outline the conduct or performance which is the subject of the warning;
  • where appropriate refer to a relevant policy or the employment contract;
  • where relevant refer to previous warnings given;
  • record the employee's responses to the matters in issue;
  • records the things which need to happen to address the performance or conduct in question;
  • make it clear that the employee needs to improve, including explaining the consequences of a repetition of the conduct or failure to improve, which could for example result in termination;
  • where relevant provide support for the employee to improve (this can involve the offer of further training);
  • where relevant, provide a timetable for periodic review of the employee's performance;
  • provide a clear paper trail should things not improve and termination result; and
  • preferably be countersigned by the employee to evidence receipt of the warning.
  • x x x."

Adding Primary Jurisdiction To The Defense Lawyer's Toolbox : Toxic Tort Litigation Blog

see - Adding Primary Jurisdiction To The Defense Lawyer's Toolbox : Toxic Tort Litigation Blog


"x x x.

An excellent explanation of primary jurisdiction is found in a decision by U.S. District Court Judge Susan R. Nelson in Taradejna v. General Mills, Inc., 909 F.Supp.2d 1128 (D.Minn. 2012):
Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making. Although there is no fixed formula for deciding whether to apply the doctrine, the doctrine applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. Agency expertise is the most common reason that courts apply the doctrine of primary jurisdiction. In addition, courts apply the doctrine to promote uniformity and consistency within the particular field of regulation. . . . When the primary jurisdiction doctrine applies, the district court has discretion either to stay the case and retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. Id. at 1134
x x x."

Tuesday, August 20, 2013

Pork barrel - COA Report by the numbers: Dubious NGOs

see - COA Report by the numbers: Dubious NGOs

"x x x.

allocated by former Quezon City Rep Matias Defensor to a foundation named after his father, the Matias Defensor Sr Foundation. He is one of 6 lawmakers who allocated a total of P189-M to 6 NGOs they or their relatives control. The other lawmakers are:
  • Sen Edgardo Angara
  • Manila Rep Amado Bagatsing
  • Bulacan Rep Ma Victoria-Sy Alvarado
  • Malabon/Navotas Rep Federico Sandoval II
  • Isabela Rep Anthony Miranda
almost 100%
percentage of lawmakers identifying the NGOs that will implement their soft projects, according to COA chair Grace Tan
number of suppliers with transactions totalling P690-M but whose addresses cannot be located
lawmakers who say their signatures on documents submitted by NGOs were forged. This includes then Senate President Juan Ponce Enrile, who said he authorized his chief of staff to sign on his behalf.
funding for 54 projects built on private properties in Parañaque, Marikina, Las Piñas, and Quezon City.

x x x."

COA mentions names of powerful politicians with doubtful pork barrel transactions.

see - LP won't protect members, allies from pork probe - Mar

"x x x.

Among LP members, the lawmakers tagged by COA are:
  • Customs chief Rozzano Rufino Biazon. The former Muntinlupa representative was tagged in the COA report because, among others, he favored a certain NGO even if the implementing agencies are different. Some suppliers involved in his projects did not have business permits or the NGOs he chose to implement his projects have yet to liquidate their balances.
  • Iloilo City Rep Niel Tupas Jr. The lead prosecutor of the House panel that successfully convicted removed Chief Justice Renato Corona was tagged in the COA report for favoring a certain NGO even if the implementing agencies are different. Other suppliers in different projects do not have business permits, too.
  • Davao City Rep Isidro Ungab was tagged in the COA report for favoring a certain NGO even if the implementing agencies are different.
  • House majority leader Neptali Gonzales II. A number of his projects violated the procurement law, according to COA. Suppliers identified in documents supposed to prove implementation of his projects denied the transactions. Some of his pork barrel went to office supplies, cleaning materials, and repair, among others.
  • Zamboanga City Mayor Ma Isabelle Clima. The former House deputy speaker was tagged in the COA report for favoring a certain NGO even if the implementing agencies are different. Some suppliers also denied involvement in her projects.
  • Sen Ralph Recto was tagged in the COA report because some of NGOs he selected have unliquidated balances.
  • Marikina Mayor Del De Guzman was tagged in the COA report for favoring a certain NGO even if the implementing agencies are different. Some suppliers involved in his projects, when he was a representative, did not have business permits. He has projects that were set up on private lots, too.
  • Sen Francis Pangilinan. COA identified projects that do not comply with the procurement law. He also allocated P1.5 million of his pork barrel that remains unutilized.
  • Former Sen Ramon Magsaysay Jr supposedly violated procurement laws and his chosen NGOs have unliquidated balances.
Among administration allies:
  • Former Sen Manuel Villar and wife Sen Cynthia Villar. The couple has an unutilized pork barrel allocation amounting to at least P2.4 million. COA interpreted this to mean either the "lack of technical capability to implement the project or the absence of need for the same." The COA report also shows that Sen Cynthia Villar allocated, when she was Las Piñas representative, P3.2 billion to a project outside her district and built projects on private lots.
  • Sen Alan Peter Cayetano was tagged for various projects that supposedly did not comply with procurement laws. Other projects are not eligible under PDAF rules.
  • TESDA director-general Emmanuel "Joel" Villanueva. The former Cibac party list representative has pork barrel allocations that remain unutilized. Suppliers identified in other documents didn't have permits to operate and his chosen NGOs have unliquidated balances.
  • Former Sen Edgardo Angara. The father of winning administration senatorial candidate Juan Edgardo Angara was tagged for giving his pork barrel to an NGO he controls. He is among the incorporators of Kalusugan ng Bata, Karunungan ng Bayan Inc, which received P14.4 million from his pork barrel. NGOs he selected to benefit from his pork barrel have unliquidated balances, too.
The COA special audit shows that the pork barrel anomaly is bigger than the alleged scheme of now fugitive Janet Lim-Napoles, who is accused of using dummy NGOs to siphon off a total of P10-billion in pork barrel. —
x x x."

Monday, August 19, 2013

Legal education and the bar exam - Manila Standard Today

see - Legal education and the bar exam - Manila Standard Today

"x x x.

In just over a month, some 6,000 law graduates all over the country will take the bar examinations, considered to be one of the most difficult law licensure tests in the world. It will run for eight hours a day for four Sundays in October. In the past 20 years, the passing percentage has ranged from a low of 16.59 per cent in 1999 and 17.25 per cent in 1992 to a rare high of 32.89 per cent in 2001 and 31.95 in 2011.
The questions that play in the mind of the general public is, are law schools not doing enough to prepare their students to pass the bar exams? Is the bigger number of Filipino law graduates not good enough to make the cut?
In the first-ever conference on legal education jointly organized by the Legal Education Board, a government institution, and the Philippine Association of Law Schools held in Cebu City from August 16 to 17, the answers to these questions, and more, were sought and explored.
Law schools are the ones that teach and prepare law students to join the Philippine bar and practice law. And since the onus is on them to produce lawyers who can cope with the changing times and compete in the arena of international legal standards, their law curricula must adjust and adapt as well. The University of the Philippines, for instance, has offered more electives geared to put their students in the tracks or specializations of their choice. For instance, UP has been offering alternative dispute resolution courses (considered as the wave of the future), environmental law, international humanitarian law, intellectual property, and other new courses that will prepare future lawyers in the practice of new fields of law. Many other law schools have tried, or at least, desired, to follow suit by implementing changes in their law curricula to make them more relevant. Yet, being innovative has its price and costly it is. In UP’s change of curriculum to make the study of law more relevant; more skills and practice-oriented, rather than being purely knowledge-gathering-oriented; it has suffered the consequence of losing the top ranks in the bar exam to other law schools and of having a good number of examinees fail. UP Law alumni have bemoaned this as passing the bar exams in the past was a matter of course for UP law graduates.
Now, more than ever, the consensus among law school deans and professors is for law schools to be given greater academic freedom in developing their respective curriculum to make it more responsive to the times. The Asean integration of 2015 is, after all, fast approaching. Recall that in 2000, the 10 member states of Southeast Asia have agreed to narrow the development gap among its members. In 2015, trade barriers will be lifted to allow for the free flow of goods and services in the Southeast Asian region. This means that Filipino lawyers must be skilled in, and prepared, to practice in international trade law, intellectual property, cyber law, international arbitration and many other new fields.
Unfortunately, there’s a catch. Law students must first pass the bar examinations before they can even begin to practice any area in law. The administration of the bar examinations, however, is done by the Supreme Court of the Philippines while the crafting of bar exam questions is done by the examiners chosen by the Chairman who is an associate justice of the Supreme Court. While the justices of the Supreme Court are supreme in the adjudication of cases and dispensation of justice in accordance with the Constitution and the laws they are, however, not in the business of legal education. Imagine a teacher teaching a class of pupils while someone else who did not do the teaching gives the test. The result is predictable. A greater number will fail and this is exactly what happens in the bar examinations. A former dean and professor of law, Pacifico Agabin, said that the bar examination has made academic freedom truly academic. To survive, the natural impulse of law schools is to cater and pander to how the Supreme Court views and carries out the bar examinations. What is unfortunate is that the substance of the bar examination has remained the same since its inception in 1900 or 113 years ago.
Thus, certain subjects remain to be bar subjects when in reality, very few lawyers specialize in them. These are: taxation, labor law, some areas in commercial law such as negotiable instruments law—now practically a dead law—banking, public administration and a few others. There is, thus, a clear disconnect between what is taught in law schools and what are given in the bar examinations.
What do the law deans propose? That the bar exam cover only four core subjects which could be taken in only two instead of four Sundays. These are political law, criminal law, civil law and remedial law. Legal ethics could be integrated into all the four core subjects. Then, when lawyers pass the bar examinations, it will be up to them to study some more toward their chosen tracks or fields of specialization. And to ensure the quality of students who will enroll in law schools, they also proposed that there be a uniform national entrance examination for all law school applicants as a minimum admission requirement.
It is time to rethink the bar examination. It is the only way legal education will ever change radically to produce competent, ethical and dynamic lawyers capable of responding to the changing needs of the millennium.
Email:   Visit:
x x x."

Saturday, August 17, 2013

CA freezes bank accounts of Napoles, kin, JLN firm, on request of AMLC -

see - CA freezes bank accounts of Napoles, kin, JLN firm, on request of AMLC -

"x x x.

MANILA, Philippines - The Court of Appeals froze on Friday all the bank accounts of suspected pork barrel-scam brains Janet Lim-Napoles, her family, staff and of her company JLN Corporation, according to Justice Secretary Leila De Lima.
The appellate court issued the freeze order upon request of the Anti-Money Laundering Council (AMLC). The freeze was issued just hours after Napoles through counsel also ran to the CA for relief in a separate case - this time to stop enforcement of a Makati court's order for her arrest, on a case of serious illegal detention filed by her ex-aide Benhur Luy, the prime whistleblower of the Justice department in the investigation on the pork barrel misuse.
De Lima said in a text message to reporters: "Acting on the Petition filed by AMLC thru OSG, a Freeze Order was issued today by CA covering the accounts and related web of accounts of Janet Lim Napoles, family members, other relatives and staff, as well as those of the NGOs identified with JLN."
The freeze order is effective for 6 months.
Covered by freeze order are the following accounts at:
1.   BPI-OR-Tektite;
2.   BDO-Unibank Inc;
3.   BDO Elite Savings Bank Inc; Citibank,NA;
4.   Hong Kong & Shanghai Banking Corp;
5.   HSBC Savings Bank (Phils) Inc: Land Bank of the Philippines-Greenhills;
6.   Metrobank Card Corp;
7.   Metropolitan Bank;
8.   United Coconut Planters Bank;
9.   Air Material Wing SLA Inc;
10. Insular Life Assurance Co Ltd;
11. Philippine AXA Life Insurance Corp;
12. Philippine American Life & General Insurance Co Inc;
13. Philippine American Life and General Insurance Co Inc;
14. Sun Life of America
Also covered by the freeze order are the accounts of:
1.   Jo Christine Napoles,
2.   Jaime Garcia Napoles
3.   James Christopher Lim-Napoles
4.   Jean/Jane Catherine Lim-Napoles
5.   John Christian Lim-Napoles
6.   Reynald Lim
7.   Ronald Francisco Lim
8.   Arthur Luy  
9.   Benhur Luy
10.  Gertrudes Luy
11.  Merlina Sunas
12.  Evelyn Ditchon De Leon
13. Marina Sula
14. Simonette Briones
15. Rosita Kawson Co
16. Ma. Winnie/Winnie M. Villanueva
17. Abundant Harvest for People's Foundation Inc.
18. Agrikultura para sa Magbubukid Foundation
19. Agri & Economic Program for Farmers Foundation Inc.
20. Bukirin Tanglaw Foundation
21. Countrywide Agri & Rural Economic/Devt (cared) Foundation Inc,
22. Ginintuang Alay sa Magsasaka Foundation
23. Gintong Pangkabuhayan Foundation
24. Karangyaan para sa Magbubukid Foundation Inc.
25. Kasaganahan para sa Magsasaka Foundation
26. Kaupdanan para sa Mangunguma Foundation Inc.,
27. Masaganang Ani para sa Magsasaka/Masaganang Ani para sa Magsasaka Foundation (MAMF) Inc.
28. Masaganang Buhay Foundation
29. Micro-agri Business Citizens Initiative Foundation
30. Pangkabuhayan Foundation Inc.
31. People's Organization for Progress Devt. Foundation Inc.
32. Philippine Agri & Social Economic Devt. Foundation Inc.
33. Philippine Social Devt. Foundation Inc.
34. Saganang Buhay sa atin Foundation/Saganang Buhay Para sa atin Foundation
35. Smile Foundation Inc.
36. Social Devt Program for Farmers Foundation
37. Tanglaw para sa Magsasaka Foundation Inc,
38. JCLN Global Properties Devt. Corp
39. JCLN Real Estate Consortium Inc.
40. JLN Construction & Devt. Corp.
41. JLN Corp
42. Jo-Chris Trading
43. ZNAC Rubber Estate Corp. (ZREC)

x x x."

Friday, August 16, 2013

Pork barrels - COA Special Audits Office Report No. 2012-03: PDAF and VILP | Official Gazette of the Republic of the Philippines

See to download - Special Audits Office Report No. 2012-03: PDAF and VILP | Official Gazette of the Republic of the Philippines

COA Special Audits Office Report No. 2012-03. a government-wide Performance Audit of Priority Development Assistance Fund (PDAF) and Various Infrastructure, including local projects (VILP) of various government implementing agencies from CYs 2007 to 2009.

Pork barrels: more questions to porky legislators

These were the words (palusot) of Sen. Jinggoy Estrada in a recent ABS-CBN interview:

1. "It is not up to the senators to determine whether an NGO is bogus or not."

2. "Alangan naman na kami pa ang magsasabi na, 'Uy, bogus 'yan.' How will we know?" 

3. "Gusto ko lang malaman sa mga kinauukulan kung saan talaga napunta 'yong para sa ating magsasaka dahil ang ating mga magsasaka, mga kababayan nating mahirap, sila mismo ang nagre-request sa aking tanggapan na sila ay mabigyan ng ayuda."

4. Napoles was his "acquaintance," and they only met during parents' meetings in school, where his daughter and her nephew were classmates.

5. He claims he never had business dealings with Napoles and did not know if the PDAF endorsements he signed before were actually for her. - "I wouldn't have known," he said.

I ask him now:

1. Are you not doing prior DUE DILIGENCE before approving the application of an NGO to be a recipient of your pork barrel?

2. Are you not doing regular FOLLOW-UP INQUIRIES (thru status reports) among your suppliers/service providers who have been tasked to implement your pork-barrel-funded projects?

3. Are you not doing regular and post-mortem PERFORMANCE EVALUATION of your pork-barrel-funded projects?

4. Are you saying that your role is that simply of a PURELY PASSIVE OBSERVER?

5. Are you saying that your role is that merely of a PURE FINANCIER?

6. Are you not commanded by the accountability provisions of the Constitution to do your tasks as a public official with UTMOST SENSE OF RESPONSIBILITY, DILIGENCE AND TRUSTWORTHINESS?

7. Is it not a fact that under the Constitution A PUBLIC OFFICE IS A PUBLIC TRUST , and that as a high-ranking steward of public funds and resources you must act with EXTRAORDINARY DILIGENCE?

Mr. Senator, answer the questions of the thinking Filipino people.

Napoles’ lawyers seek TRO against arrest warrants | Inquirer News

see - Napoles’ lawyers seek TRO against arrest warrants | Inquirer News

Napoles' counsel followed a different tactic from what I have earlier stated.

She went up directly to the Court of Appeals (CA)  to nullify the judicial finding of probable cause and the  issuance of a warrant of arrest by the Regional Trial Court (RTC), Makati City.

Napoles did not anymore give the trial court an opportunity to correct itself by way of a "motion for reconsideration/setting aside of the order/warrant".

I assume that the theory of Napoles' lawyer is based on the alleged URGENCY of the matter.

It is an exception to the general rule that before one may file a Rule 65 special civil action for "certiorari, prohibition and mandamus" before a higher court, one must first file a "motion for reconsideration" before the trial court, whose order is the subject of the said special civil action, to give the trial court an opportunity to correct itself.

It all depends now on the CA whether or not to issue a limited TRO (and later a more expansive writ of preliminary injunction) against RTC Makati, pendente lite, or, in the merits, whether or not to appreciate the theory of urgency and to give due course to the petition.

The incidental/provisional and final actions of the CA on the petition will determine the liberty of Napoles.

Of course, the CA decision on the matter will surely be elevated by the State, thru the Office of the Solicitor General (OSG), to the Supreme Court (SC), which may or may not agree w/ the ruling of the CA.

In the meantime, under Rule 65, unless the RTC Makati is formally restrained by the CA or, later, by the SC, from acting on the pending criminal case of Napoles, the trial court may proceed to hear and try the merits/demerits thereof.

That is, assuming Napoles is arrested (by law enforcers or by citizens) or voluntarily surrenders.

If she remains to be at large, her criminal case would be "archived", in the meantime, the same to be revived upon her arrest or surrender.

So, let's wait and see.

- Atty. Manuel J. Laserna Jr.
Las Pinas Cit, Philippines.

How doctors can spot patients likely to sue -

see - How doctors can spot patients likely to sue -


"x x x.

How to address legally risky patients

Doctors should use caution when treating patients they believe may sue. Being open and communicative with such patients can reduce liability risks and help build stronger relationships.

Document. Carefully document patient conversations, treatments and clinical evaluations.
Use secure communication. Encourage secure online communication with the patient so documentation is recorded on both sides and stories cannot be changed later.
Build trust. Focus on getting to know the patient and developing trust with him or her.
Be transparent. Be open with the patient and clearly explain all medical treatments and diagnoses.
Encourage inquires. Invite the patient to ask questions, and answer all concerns honestly.
Say you're sorry. Apologize to the patient and take responsibility for any mishaps when appropriate.

Source: “The Legal Risk Patient,” QuantiaMD, 2011
x x x."

What are the legal options of Napoles?

The Lacson-style legal tactic of Napoles, now that RTC Makati has issued a warrant of arrest, is to go underground and disappear, file a motion thru her counsel to reconsider/set aside the RTC order finding the existence of probable cause (which became the basis for the issuance of the warrant), and litigate the said motion before RTC Makati and later even up to the SC, hoping, in the process, to secure a TRO/writ of preliminary injunction against RTC Makati from the higher courts, while her petition for certiorari is being heard therein.

Meanwhile, Napoles' problem is how and where to hide.

Her arbitrary detention case is non-bailable. (The DOJ which filed before RTC Makati the Information in the criminal case for arbitrary detention did not recommend bail).

He option is to voluntarily surrender, file a motion thru her counsel for admission to bail, litigate the said motion before RTC Makati, and hope for a favorable order granting her bail, probably within 1-2 yrs, in which case, she can thereafter post bail and be provisionally free while litigating the merits/demerits of her pending criminal case before the said trial court.

If her said motion for admission for bail is denied by RTC Makati, she can go up to the CA on a Rule 65 "special civil action for certiorari" and, if also denied in the appellate court, she could further go up to the SC on a Rule 45 "petition for review on certiorari".

Meanwhile, she has to stay in prison. The appellate process up to the SC can take 2-3 yrs.

Is she prepared to freely and bravely face the physical and emotional sufferings to be caused by the "voluntary surrender  scenario"?

I don't think so.

She has been used to the comfortable life of a multi-millionaire whose ego and delusions equal those of a feudal warlord/traditional patronage politician.

Like Lacson, she would rather buy herself out of PH territorial jurisdiction and hide in a country where the PH has no mutual legal  assistance treaty and/or extradition treaty.

For criminal trial lawyers, like me, the above-mentioned legal tactics that I have described above are not new or spectacular.

In fact, they are routine and mechanical legal tactics of big law firms representing the rich and the powerful, as on the case of Napoles.

Wednesday, August 14, 2013

What the 'pork barrel' is | News | GMA News Online

see - What the 'pork barrel' is | News | GMA News Online

"x x x.

"Pork barrel" refers to congressional allocations such as the PDAF, financial subsidies to local government units (FSLGU), and the Department of Public Works and Highways (DPWH) lump sum allocations for infrastructure projects identified by Congress.
"Pork barrel" is the portion of the national budget that is widely left to the legislators’ discretion when it comes to how the funds are spent.
The term “pork barrel” refers to an ancient Western custom to preserve meat in actual wooden barrels for future consumption.
Connoting fat and grease and stored resources, the term has since seeped into ordinary conversations as a metaphor for political largesse.
Pork barrel funds account for a little over 1 percent of the national budget.
A congressman gets to allocate P70 million in pork barrel funds each year while a senator gets P200 million.
These “priority projects and programs” may be in the form of “hard” projects or infrastructure projects such as roads, bridges, school buildings, and the like.
Pork barrel funds may also be allocated for “soft,” non-infrastructure projects that are more in the vein of financial assistance like scholarships and livelihood programs.
Legislators can pick from the following projects:
  •     Education – e.g. scholarships
  •     Health – e.g. financial assistance to indigent patients, purchase of medical equipment
  •     Livelihood/ social services
  •     Rural electrification
  •     Water supply – e.g. construction of water system, installation of pipes/pumps/tanks
  •     Financial assistance – for specific programs and projects of LGUs
  •     Public works – e.g. roads, bridges, flood control, school buildings, hospitals, health facilities,
  •     public markets, multi-purpose buildings and pavements
  •     Irrigation
  •     Peace and order – purchase of firetrucks and firefighting equipment, patrol vehicles, prisoners’
  •     vans, multicabs, police patrol equipment, construction/repair of fire stations, police stations, jails
  •     Housing
  •     Forest management
  •     Arts and culture
For congressmen, funds are split such that P30 million of each House member’s pork barrel are for “soft” programs and the remaining P40 million are for “hard” programs.
For senators, their pork barrel is evenly split – P100 million should be for “soft” projects, and P100 million for “hard” projects. Agatha Guidaben/VVP/KG, GMA News
x x x."

Fil-Am faces 25 years in jail for embezzling over $320,000 in US | Pinoy Abroad | GMA News Online

see - Fil-Am faces 25 years in jail for embezzling over $320,000 in US | Pinoy Abroad | GMA News Online

"x x x.

OAKLAND, Calif. – A former paralegal faces up to 25 years in prison after admitting she bilked hundreds of thousands of dollars from clients of an East Bay attorney, federal authorities said.
Ana Lissa Reyes, 42, of San Lorenzo could receive a lengthy term during her sentencing in federal court Oct. 10 after recently pleading guilty to one count each of mail fraud and tax evasion, authorities said.
Reyes admitted to embezzling $327,795 from personal-injury attorney Brian Ching and his clients, authorities said.
Her actions ultimately led to Ching’s losing his law practice last year. The State Bar found Ching to have been grossly negligent in supervising Reyes.
“This whole thing is a tragedy, a disappointment,” Berkeley-based attorney Keith Brooks, who represented Ching in disbarment proceedings, told Philippine News. “It’s a shock she was so blatant in her victimization of people.”
Reyes – who worked as Ching’s secretary, office manager and paralegal for more than 15 years – settled claims without the knowledge of her employer or his clients and pocketed the settlement proceeds, authorities said. She also engaged clients without Ching’s knowledge and stole their retainer fee payments.
Reyes took advantage of Ching when he was experiencing personal upheavals and not focused on his practice, Brooks said. Ching was going through marital issues and the deaths of his father and teenage son.
Ching was disbarred for misappropriating his clients’ funds even though the money had actually been stolen by Reyes, an FBI agent said in a sworn affidavit. Reyes stole more money from the client trust account of Ching’s firm.
Clients started to complain to Ching about missing funds in 2009, the agent said, but Reyes denied doing anything wrong.
But more complaints surfaced later, the agent said, and the State Bar opened an investigation. In 2011, Ching finally fired Reyes.
Then in text messages, Reyes apologized to Ching for her actions, the agent said. In part, she told Ching: “I am sorry for causing you and your family pain. I am going to try hard and figure out how I’m going to pay you back.”
But even then, Reyes continued to get hold of Ching’s clients and take their money, the agent said. Authorities arrested Reyes in 2012 after a year-long investigation by the FBI and the Internal Revenue Service.
Brooks had also confronted Reyes about her activities, he said, but she couldn’t stop what she was doing.
Victims, however, apparently are beginning to get some of their money back through claims. “The State Bar is starting to reimburse people she exploited,” Brooks said.
Reyes is currently out on $100,000 bond. A message to her cell phone seeking comment was not immediately returned.                                                       
Her attorney, Assistant Federal Public Defender Ned Smock, was on vacation and not immediately available for comment. Federal Public Defender Steven Kalar declined comment.
Reyes also admitted to under-reporting her income from 2006 to 2011 during the time she embezzled her victims, authorities said. For each of these tax years, she knew her joint taxable income was substantially in excess of the amount stated on the return, resulting in additional tax owed to the federal government.
The maximum penalty for each count of mail fraud is 20 years’ imprisonment and a fine of $250,000 plus restitution, authorities said. The maximum for tax evasion is five years and $250,000 plus restitution. Philippine News

x x x."

Tuesday, August 13, 2013

Assistant State Prosecutor Diosdado Solidum Jr. faces cases for extorting Philippine Airlines workers | Sun.Star

see - Assistant State Prosecutor Diosdado Solidum Jr. faces cases for extorting Philippine Airlines workers | Sun.Star

"x x x.

CASES of direct bribery and violation of code of conduct of government employees were filed on Monday by the Office of the Ombudsman against a state prosecutor for trying to extort P2.5 million from unionized workers of Philippine Airlines (PAL).
In an eight-page resolution, Ombudsman Conchita Carpio Morales found probable cause to pursue the cases before the Sandiganbayan against Assistant State Prosecutor III Diosdado Solidum Jr., who was arrested by the National Bureau of Investigation (NBI) in an entrapment operation on August 8. Read the related story: "State prosecutor arrested for extortion."
Solidum allegedly demanded P10,000 each from 241 members of the PAL Employees Association (Palea) in exchange for the dismissal of the charges for disrupting airport services in protest of the massive job cuts in the flag carrier in September 2011.
This was later reduced to P1.2 million payable in installment.
Palea appealed with the Department of Justice after the Pasay City Prosecutor’s Office found probable cause to charge them in court for allegedly violating Section 81 of the Civil Aviation Authority Act.
Complainant Gerry Rivera, who is also Palea president, said Solidum assured him in a meeting on July 29 that the charges will be dismissed if the union will pay the price of the resolution.
Rivera then reported the matter to Justice Secretary Leila de Lima who, in turn, ordered the NBI to conduct an entrapment operation at the vicinity of Spring Deer Restaurant along Timog Avenue in Quezon City.
Solidum was caught in the act of receiving the envelope containing the marked money.
“Our members have suffered enough injustice brought about by their illegal termination. The mental anguish caused by the trumped up charges which we believe are fruits of corruption makes justice the more elusive. Our quest for justice is now on a grind. Again, in our struggle, we will not hesitate to fight until we obtain justice,” Rivera told Sun.Star, adding he was unaware that the cases were already with the anti-graft court.
Prosecutor General Claro Arellano earlier warned all prosecutors that they would be dismissed from service if caught demanding money and/or accepting bribes in relation to a case.
Prior to the Palea incident, Arellano said there have been reports concerning Solidum’s participation in illegal activities but none of the complainants were willing to file a case against him. (Virgil Lopez/Sunnex)
xx x x."