Friday, November 28, 2014

Barangay secretary; removal from office; sample position paper.

CITY OF x x x  


In Re: The Complaint Of x x x
Against Barangay Chairperson x x x,
Et. Al. (Ombudsman Reference: IC-OC-xx-xxxx)

(For Respondent Kgd. XXX)

           KGD.  X x x, a co-respondent, respectfully states:

1.      INTRODUCTION. – x x x.


2.1.          On 27 July 2014 the Barangay Council of Barangay xxx, xxx City passed Resolution No. 56, signed by 5 members thereof, including xxx.

The resolution “resolved to concur (in) the termination of (the) appointment of xxx as Barangay Secretary and (to) concur (in) the appointment xxx as (the) temporary Barangay Secretary”.

The grounds cited in the 1st whereas clause were “inefficiency, negligence, and loss of confidence.

See Annex “A” hereof.

2.2.        On 1 August 2014 the Barangay Council of Barangay xxx, xxx City passed Resolution No. 58, signed by 5 members thereof, including xxx.

The resolution “resolved that the appointment of xxx as Barangay Secretary shall be effective on August 1, 2014.”

See Annex “B” hereof.

2.3.        On 5 September 2014 the Chairperson on Barangay Xxx 5, i.e., Hon. Xxx, executed a CERTIFICATION which stated that “the services of xxx (were) terminated due to negligence, inefficiency and loss of confidence by the (Barangay Chairperson xxx)”. 

The factual details of the grounds cited for the termination of the services of xxx are stated in the succeeding paragraphs of the Certification of Chairperson xxx.

See Annex “C” hereof.

2.4.        On 22 August 2014 the Director of the Public Assistance Bureau (i.e., Atty. Marlyn Torres-Galvez) of the Office of the Ombudsman issued a NOTICE OF CONFERENCE to xxx (complainant) and Chairperson xxx (respondent) and 4 members of the Barangay Council, i.e., xxx and 3 other Kagawads, namely, x x x . (co-respondents).

The date set was 8 September 2014 at 10:00 AM at the office of the Public Assistance Bureau.

See Annex “D” hereof.

2.5.         Attached to the abovecited Notice of Conference was a copy of the COMPLAINT-AFFIDAVIT of xxx.

The Complaint administratively charges the respondents with “abuse of authority, oppression and violation of the Civil Service Law”.

The complainant seeks “moral and exemplary damages and costs(s) of suit” in the administrative complaint.

See Annex “E” hereof (Complaint-Affidavit).

2.6.        xxx claims that the Barangay ”failed to support any of the allegations” for her dismissal.

See Par. 5, Complaint-Affidavit, Annex “E”.

2.7.         On 15 September 2014, in her RAS FINAL REPORT, Graft Investigation Officer MIRIAM A. CANDELARIA recommended “that the grievance under RAS-C-xx-xxxx be considered closed and terminated xxx.”

It was recommended for approval by DIRECTOR MARLYN TORRES-GALVEZ of the Public Assistance Bureau.

It was ultimately approved by ASSISTANT OMBUDSMAN EVELYN A. BALITON,

See Annex “F” hereof.

The Report stated that xxx wanted the Bureau to annul Barangay Resolution No. 57, Series of 2014.

The Bureau felt that it had no jurisdiction to act on the prayer of xxx, thus: “Since the subject matter of the request would require the unanimous action of the officials of Brgy. xxx, xxx City, the resolution  of the same is a matter for them to determine and agree upon.”  (Par. 4, RAF Final Report, Annex “F”).

2.8.        On 15 September 2014 Assistant Ombudsman Leilanie Bernadette C. Cabras issued a Letter, dated 15 September 2014, to the City Council of xxx City, thru Vice Mayor xxx, referring to the latter, for appropriate action, the administrative Complaint of xxx (Ombudsman Reference: IC-OC-xx-xxxx).

In fine, the Assistant Ombudsman Cabras urged the City Council to exercise its disciplinary powers under Sec. 61 © of R.A. No. 7160, Local Government Code of 1991, i.e., to DECIDE the administrative guilt/liability, if any, of the respondents.

The Assistant Ombudsman asked the City Council to inform the former of the action that the latter shall have taken on the administrative matter.

See Annex “G” hereof, with sub-markings.

2.9.        On October 13, 2014 Atty. xxx, City Council Secretary, referred  the Letter, dated 15 September 2014, to the Blue Ribbon Committee (lead committee), the Committee on Barangay Affairs, and the Committee on Laws, for appropriation action.

See Annex “H” hereof.

2.10.    The 3 committees forthwith held a joint hearing and asked the parties to submit their respective Position Papers.


3.1.          Attached as Annex “I” hereof, with submarkings, is a relevant reading material downloaded by xxx from the website of the Department of Interior and Local Government (DILG) on legal basis of employee discipline in the Civil Service; valid grounds for disciplinary action; parties to an administrative complaint; venue; contents of an administrative charge; formal investigation; period to decide; penalties; other modes of termination; dismissal from the service.

It is being submitted to aid the City Council in its consideration of the position of xxx.

3.2.        Attached as Annex “J” hereof, as downloaded by xxx form the DILG website, is a copy of the Legal Opinion, dated  25 March 2009, of DILG Undersecretary Austere A. Panadero addressed to Hon. Jesus Radmar T. Resente, Barangay Chairman of Brgy. Congress 173, Congress Village North, Caloocan City.

It is being submitted to aid the City Council in its consideration of the position of Xxx.

The Opinion states that Sec. 394 of RA 7160 governs the manner of the appointment of the Barangay Secretary by the Barangay Chairman, subject to the concurrence of the Barangay Council (citing Alquizola v. Ocol, 313 SCRA 293; Sec. 4,  DILG MC No. 2002-150); that  

3.3.        Attached as Annex “K” hereof is a Legal Opinion, dated 16 January 2003, issued by former DILG Secretary Jose D. Lina Jr., addressed to Brgy. Chairman Jose J. Valdez, of Sto. Domingo, Quezon City.

Noteworthy therein are the following legal conclusions: that the posts of Barangay Secretary and Barangay Treasurer “belong to the non-career service”; and that that their appointment is subject to the discretion of the majority of the Kagawads (citing DILG MC No. 2002-150, 18 Sept. 2002, “Guidelines for the Appointment of Barangay Secretaries, Treasurers, and other Appointive Barangay Officials”).

3.4.        Attached as Annex “L” hereof is a Legal Opinion, dated 3 April 2008, issued by DILG Undersecretary Austere A. Panadero.

Noteworthy therein is the conclusion that the power of the Barangay Council is merely to concur or not to concur to the appointment of the Barangay Secretary by the Barangay Chairman; and that the executive power of appointment of the Secretary belongs to the Chairman, not to the Council.

3.5.         Attached as Annex “M” hereof is a copy of DILG Memo-Circular No. 2002-150,  dated 18 Sept. 2002, “Guidelines for the Appointment of Barangay Secretaries, Treasurers, and other Appointive Barangay Officials”.

Noteworthy are the following provisions/conclusions: that the appointment of a Secretary is “coterminous with the appointing authority”, i.e., Brgy. Chairman, citing CSC Opinion, dated 28 July 1998); that withholding of concurrence by the Council, if the Secretary is qualified, would be arbitrary, whimsical, unjustifiable, and abuse of authority; that the removal of the Secretary requires the approval/concurrence of the Council (cf. Alquizola v. Ocol, GR 132413, 27 Aug. 1999); the Secretary may be removed without cause or with cause; the Secretary may
also be removed for cause under the Civil Service Law” (in which case the concurrence of the Council to the removal/dismissal is no longer required).

3.6.        Attached as Annex “N” hereof is a copy of the Legal Opinion, dated 10 April 2008, of DILG Undersecretary Austere Panadero.

Noteworthy are the following conclusions: that a Secretary may be removed  “with or without cause”; that if she is removed “without cause” by the Chairperson, the concurrence of the Council is required;  that if the Secretary is removed “for cause” pursuant to Civil Service Laws, the Council is not required to concur thereto. Although the Opinion refers to security of tenure of the appointee, what is clear is that the Secretary may be removed “with0ut cause” (see Page 2, last paragraph, of the said Opinion).

3.7.         Good faith is presumed on the part of xxx, as one of the  Kagawads who concurred in the removal of xxx by the Chairperson.

HELD: It is axiomatic that good faith is always presumed unless convincing evidence to the contrary is adduced. It is incumbent upon the party alleging bad faith to sufficiently prove such allegation. Absent enough proof thereof, the presumption of good faith prevails. In the case at bar, the burden of proving bad faith therefore lies with petitioners but they failed to discharge such onus probandi. Without a clear and persuasive substantiation of bad faith, the presumption of good faith in favor of respondents stands.

[Heirs of Severa Gregorio  vs. Court of Appeals, et al, G. R. No. 117609, December 19, 1998; Purisima, J.]

In the case of FRANCISCO M. LECAROZ, et. al. vs. SANDIGANBAYAN, et. al., G.R. No. 130872, March 25, 1999, it was held

“The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith. In Cabungcal v. Cordova we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official.  We reiterated this principle in Mabutol v. Pascual

which held that public officials may not be liable for damages in the discharge of their official functions absent any bad faith. Sanders v. Veridiano II expanded the concept by declaring that under the law on public officers, acts done in the performance of official duty are protected by the presumption of good faith.”

3.8.        PRAYER. - The Complaint as against xxx must be dismissed for utter lack of merit.

Respectfully submitted.
Las Pinas City, November 28, 2014.

Pro Bono Counsel for Respondent
Kgd. Xxx
Unit 15, Star Arcade, CV Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539



X x x
Block xxx, Lot xxx, xxx St.
Xxx Homes, xxx, xxx City
     Reg. Rec. No.
     Date                               PO


A copy hereof is served on opposing party via registered mail due to the lack of field staff of undersigned counsel at this time and due to the urgency of filing the same.

                                                                        MANUEL LASERNA JR.

Experiencing The Bar A Second Time By J. Estela Perlas-Bernabe

See - Court of Appeals

"x x x .

Experiencing The Bar A Second Time

By J. Estela Perlas-Bernabe

The Bar Examinations is the only national test given by the Supreme Court to all law graduates in the country to determine their passage to the practice of law. It is given annually on four consecutive Sundays of September, on the following subjects with the corresponding weights: First Sunday – Political and International Law (15%) and Labor and Social Legislation (10%); Second Sunday – Civil Law (15%) and Taxation (10%); Third Sunday – Mercantile Law (15%) and Criminal Law (10%); Fourth Sunday – Remedial Law (20%) and Legal Ethics and Practical Exercises (5%). Under the Rules of Court, a bar candidate may be deemed to have passed his examinations successfully if he has obtained a general average of 75% in all subjects, without falling below 50% in any subject.

I took the bar examinations – for the first and last time – in 1976 after having graduated in the same year from the Ateneo College of Law. That may already be decades ago but the grueling six-month period of arduous mental calisthenics is forever etched in my memory, easily retrievable by the mere mention of the bar. My constant prayer then was for the bar examiners to ask fair questions and to be reasonably considerate in correcting the papers. Little did I know that I would someday be one of those dreaded examiners, and that I myself would be subject to the crucible of the standards I had set for them when I was an examinee, and even more relentlessly. However, I was not prepared for the realization that to be a bar examiner is a feat far horrendous than the taking of the bar itself.

I had, at the outset, considered it my good fortune to have been handpicked by Supreme Court Justice Adolfo Azcuna, the Chairman of the 2007 Bar Examinations, as the examiner in Mercantile Law that year. It was such a rare opportunity, and I could only commit to giving it all my best. I then wasted no time gathering all my books and materials relative to the subject, going through their pages, making notes, and finally framing the required number of questions and answers, which I reviewed over and over on a laptop that never left my sight from start to finish. After printing a hard copy of the file and personally handing it over to the Chairman, I downloaded the file to my USB, erased all traces of the document from the computer including the garbage bin, and locked the USB in my vault. It was unquestionably my most valuable possession at that time.

The task of formulating the suggested questions would have been easier if I had the freedom to consult professors, colleagues, friends and staff. But this was well-nigh impossible if I were to adhere to the strictest confidentiality required of me. The fear of a leakage and the consequent scandal hung like Damocles’ sword over my head. I just had to keep everything to myself for my own peace of mind, and trusted no one, except my husband out of necessity and for sheer proximity.

I shunned social activities like the plague. I could not trust myself to lie through my teeth in the unlikely event that I get exposed, especially not to friends whose children were taking the bar that year. In the few times, however, that I was obligated to go and was found enmeshed in the usual hullabaloo about the bar, I was thankful that I was not a target of speculation. I was also not counted among my colleagues in court as one of the examiners probably because, by a simple process of elimination, I was the least likely candidate, being relatively new in the institution. It may also be because I had kept to the letter my regular duties in court and, thus, was always visible.

I would check some notebooks in the car while on the way and during lulls in the office. Yes, every minute counts if you had to finish a total of 5,627 booklets within a time frame of 22 weeks, which translated to 255 booklets a week, or 36 a day. I chewed negotiable instruments for breakfast, swallowed insurance policies for lunch, gnawed at stockholder’s appraisal rights for dinner, and picked on money laundering and maritime protest for merienda. With all my indigestion, I no longer trusted the clean bill given to me after a colonoscopy performed shortly before the bar examinations.

In checking the booklets, I was guided by the answers I submitted to the Bar Chairman, as well as the suggested answers formulated by the UP Law Center Training and Convention Division and the Philippine Association of Law Schools. After I corrected the first 200 booklets, I had to devise a point system, which, to a great extent, enabled me to be fair even in times of attitudinal disturbances brought about by the painful stretching of time and patience, and the concomitant lack of sleep. Retiring to bed at past midnight and waking up at 4:00 in the morning became a daily routine that, after many months, was bound to take its toll. Many of my friends and relatives remarked at how my positive aura had dwindled, to which I could only offer some lame excuse.

It may be an understatement, but I have said it, and I will say it again without fear of contradiction, that checking the examination booklets was a more agonizingly laborious experience than actually taking the bar. Much of my difficulty lay on the extra time spent deciphering handwriting and grammar. But, encouraged every time by the thought that my own children will be taking the bar in a couple of years or so, I would read an answer over and over again until I am able to make sense of it, and I can give the corresponding point with due consideration to the effort of the examinee, without compromising the standards set for the legal profession.

I had thought all along that law schools and review centers drill their examinees in answering questions, especially those they know nothing about. But I was sorely disappointed to read prayers of the Holy Rosary and pleas for mercy in between snippets of what appears to be poor paraphrases of commercial law doctrines. Some examinees negligently omitted answers to certain questions, or merely repeated the same answer to other questions. What was unacceptable, though, was that a good number of the examinees failed to answer correctly some very basic questions. I could not, for the life of me, fathom how a bar candidate could describe the Trust Fund Doctrine in Corporation Law as the amount of money deposited in the bank, which the beneficiary may withdraw only when he reaches the age of majority. The worst answer, however, which I had the misfortune to come across, equated Trust Receipt to a popular contraceptive for men. If it was meant as a joke, it was not funny.

My displeasure aside, I finally finished correcting the last booklet in the middle of February, 2008, at least two weeks ahead of schedule. The results were later released with a national passing percentage of 22% after some adjustments in the cut-off grade, which the Supreme Court deemed necessary. I was deeply relieved, not from the hard work but for the job well-done. I may have played only a bit part in the saga of the Philippine bar but it was not any less rewarding. I have perfected the art of time management – juggling between drafting decisions, engaging my children who are enrolled at the Ateneo Law School in stimulating discussions, attending to my 93-year old mother, and being a dutiful wife to my husband. To be a bar examiner is a tough job. But it can be done, as I and those before me have.

x x x."

Saturday, November 22, 2014

Read The Full Text Of Obama's Immigration Speech

See - Read The Full Text Of Obama's Immigration Speech

"x x x.

My fellow Americans, tonight, I’d like to talk with you about immigration.

For more than 200 years, our tradition of welcoming immigrants from around the world has given us a tremendous advantage over other nations. It’s kept us youthful, dynamic, and entrepreneurial. It has shaped our character as a people with limitless possibilities – people not trapped by our past, but able to remake ourselves as we choose.

But today, our immigration system is broken, and everybody knows it. 

Families who enter our country the right way and play by the rules watch others flout the rules. Business owners who offer their workers good wages and benefits see the competition exploit undocumented immigrants by paying them far less. All of us take offense to anyone who reaps the rewards of living in America without taking on the responsibilities of living in America. And undocumented immigrants who desperately want to embrace those responsibilities see little option but to remain in the shadows, or risk their families being torn apart. 

It’s been this way for decades. And for decades, we haven’t done much about it.

When I took office, I committed to fixing this broken immigration system. And I began by doing what I could to secure our borders. Today, we have more agents and technology deployed to secure our southern border than at any time in our history. And over the past six years, illegal border crossings have been cut by more than half. Although this summer, there was a brief spike in unaccompanied children being apprehended at our border, the number of such children is now actually lower than it’s been in nearly two years. Overall, the number of people trying to cross our border illegally is at its lowest level since the 1970s. Those are the facts.

Meanwhile, I worked with Congress on a comprehensive fix, and last year, 68 Democrats, Republicans, and Independents came together to pass a bipartisan bill in the Senate. It wasn’t perfect. It was a compromise, but it reflected common sense. It would have doubled the number of border patrol agents, while giving undocumented immigrants a pathway to citizenship if they paid a fine, started paying their taxes, and went to the back of the line. And independent experts said that it would help grow our economy and shrink our deficits. 

Had the House of Representatives allowed that kind of a bill a simple yes-or-no vote, it would have passed with support from both parties, and today it would be the law. But for a year and a half now, Republican leaders in the House have refused to allow that simple vote.

Now, I continue to believe that the best way to solve this problem is by working together to pass that kind of common sense law. But until that happens, there are actions I have the legal authority to take as President – the same kinds of actions taken by Democratic and Republican Presidents before me – that will help make our immigration system more fair and more just.

Tonight, I am announcing those actions.

First, we’ll build on our progress at the border with additional resources for our law enforcement personnel so that they can stem the flow of illegal crossings, and speed the return of those who do cross over.

Second, I will make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed. 

Third, we’ll take steps to deal responsibly with the millions of undocumented immigrants who already live in our country.

I want to say more about this third issue, because it generates the most passion and controversy. Even as we are a nation of immigrants, we are also a nation of laws. Undocumented workers broke our immigration laws, and I believe that they must be held accountable – especially those who may be dangerous. That’s why, over the past six years, deportations of criminals are up 80 percent. And that’s why we’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mother who’s working hard to provide for her kids. We’ll prioritize, just like law enforcement does every day. 

But even as we focus on deporting criminals, the fact is, millions of immigrants – in every state, of every race and nationality – will still live here illegally. And let’s be honest – tracking down, rounding up, and deporting millions of people isn’t realistic. Anyone who suggests otherwise isn’t being straight with you. It’s also not who we are as Americans. After all, most of these immigrants have been here a long time. They work hard, often in tough, low-paying jobs. They support their families. They worship at our churches. Many of their kids are American-born or spent most of their lives here, and their hopes, dreams, and patriotism are just like ours. 

As my predecessor, President Bush, once put it: “They are a part of American life.”

Now here’s the thing: we expect people who live in this country to play by the rules. We expect that those who cut the line will not be unfairly rewarded. So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation. You can come out of the shadows and get right with the law.

That’s what this deal is. Now let’s be clear about what it isn’t. This deal does not apply to anyone who has come to this country recently. It does not apply to anyone who might come to America illegally in the future. It does not grant citizenship, or the right to stay here permanently, or offer the same benefits that citizens receive – only Congress can do that. All we’re saying is we’re not going to deport you. 

I know some of the critics of this action call it amnesty. Well, it’s not. Amnesty is the immigration system we have today – millions of people who live here without paying their taxes or playing by the rules, while politicians use the issue to scare people and whip up votes at election time. 

That’s the real amnesty – leaving this broken system the way it is. Mass amnesty would be unfair. Mass deportation would be both impossible and contrary to our character. What I’m describing is accountability – a commonsense, middle ground approach: If you meet the criteria, you can come out of the shadows and get right with the law. If you’re a criminal, you’ll be deported. If you plan to enter the U.S. illegally, your chances of getting caught and sent back just went up.

The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican President and every single Democratic President for the past half century. And to those Members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary. Meanwhile, don’t let a disagreement over a single issue be a dealbreaker on every issue. That’s not how our democracy works, and Congress certainly shouldn’t shut down our government again just because we disagree on this. Americans are tired of gridlock. What our country needs from us right now is a common purpose – a higher purpose.

Most Americans support the types of reforms I’ve talked about tonight. But I understand the disagreements held by many of you at home. Millions of us, myself included, go back generations in this country, with ancestors who put in the painstaking work to become citizens. So we don’t like the notion that anyone might get a free pass to American citizenship. I know that some worry immigration will change the very fabric of who we are, or take our jobs, or stick it to middle-class families at a time when they already feel like they’ve gotten the raw end of the deal for over a decade. I hear these concerns. But that’s not what these steps would do. Our history and the facts show that immigrants are a net plus for our economy and our society. And I believe it’s important that all of us have this debate without impugning each other’s character.

Because for all the back-and-forth of Washington, we have to remember that this debate is about something bigger. It’s about who we are as a country, and who we want to be for future generations.

Are we a nation that tolerates the hypocrisy of a system where workers who pick our fruit and make our beds never have a chance to get right with the law? Or are we a nation that gives them a chance to make amends, take responsibility, and give their kids a better future?

Are we a nation that accepts the cruelty of ripping children from their parents’ arms? Or are we a nation that values families, and works to keep them together?

Are we a nation that educates the world’s best and brightest in our universities, only to send them home to create businesses in countries that compete against us? Or are we a nation that encourages them to stay and create jobs, businesses, and industries right here in America?

That’s what this debate is all about. We need more than politics as usual when it comes to immigration; we need reasoned, thoughtful, compassionate debate that focuses on our hopes, not our fears.

I know the politics of this issue are tough. But let me tell you why I have come to feel so strongly about it. Over the past few years, I have seen the determination of immigrant fathers who worked two or three jobs, without taking a dime from the government, and at risk at any moment of losing it all, just to build a better life for their kids. I’ve seen the heartbreak and anxiety of children whose mothers might be taken away from them just because they didn’t have the right papers. I’ve seen the courage of students who, except for the circumstances of their birth, are as American as Malia or Sasha; students who bravely come out as undocumented in hopes they could make a difference in a country they love. These people – our neighbors, our classmates, our friends – they did not come here in search of a free ride or an easy life. They came to work, and study, and serve in our military, and above all, contribute to America’s success.

Tomorrow, I’ll travel to Las Vegas and meet with some of these students, including a young woman named Astrid Silva. Astrid was brought to America when she was four years old. Her only possessions were a cross, her doll, and the frilly dress she had on. When she started school, she didn’t speak any English. She caught up to the other kids by reading newspapers and watching PBS, and became a good student. Her father worked in landscaping. Her mother cleaned other people’s homes. They wouldn’t let Astrid apply to a technology magnet school for fear the paperwork would out her as an undocumented immigrant – so she applied behind their back and got in. Still, she mostly lived in the shadows – until her grandmother, who visited every year from Mexico, passed away, and she couldn’t travel to the funeral without risk of being found out and deported. It was around that time she decided to begin advocating for herself and others like her, and today, Astrid Silva is a college student working on her third degree.

Are we a nation that kicks out a striving, hopeful immigrant like Astrid – or are we a nation that finds a way to welcome her in?

Scripture tells us that we shall not oppress a stranger, for we know the heart of a stranger – we were strangers once, too.

My fellow Americans, we are and always will be a nation of immigrants. We were strangers once, too. And whether our forebears were strangers who crossed the Atlantic, or the Pacific, or the Rio Grande, we are here only because this country welcomed them in, and taught them that to be an American is about something more than what we look like, or what our last names are, or how we worship. What makes us Americans is our shared commitment to an ideal – that all of us are created equal, and all of us have the chance to make of our lives what we will.

That’s the country our parents and grandparents and generations before them built for us. That’s the tradition we must uphold. That’s the legacy we must leave for those who are yet to come.

Thank you, God bless you, and God bless this country we love.

x x x."

Lawyers rise, Asean economic integration is here | Inquirer Opinion

See - Lawyers rise, Asean economic integration is here | Inquirer Opinion

"x x x.

Today, with 2015 just around the corner, the Asean Economic Community is the talk of the town. While some claim that the Philippines is not at all ready to be in such a region, others, en contra, maintain that we can be, provided we make the right moves with the little time left. 

But certainly, unlike a decade ago, those with strong opinions, when taken as a group, far outnumber those who are unconcerned or simply clueless.

I propose in this piece to share some insights which are the fruits of the more than half a century that I have devoted to the practice of law in the Philippines.

A salient, though silent, feature of the private practice of law in the Philippines is the belief of clients, rightly or wrongly, that their lawyer knows, or ought to know—”know” not in the pejorative sense of knowing the judge, but in the legitimate expectation that the lawyers to whom they pay good money, know not only what the law says but, in a degree that is a notch or two above the rest—how to deal with the law in a manner that will be advantageous to them.

This demand on lawyers is multiplied a hundredfold by clients who do or plan to do investments. When I spoke to the Ateneo graduates in 2010, direct foreign investments and loans in the Asean totaled roughly $346,187 million in 2008, up from only $23,541 million in 2000. Exports for the same period doubled; imports rose from $348,960 million to $831,229 million. Figures have gone north on a steep trajectory since then.

The impact of this development on the legal profession is inevitable. Lawyers are a necessary evil in assisting in the negotiation and crafting of agreements of interested parties. 

Hence, a great demand for legal services in the whole of Asean lurks around the corner. Country barriers to knowledge of inter-Asean law, though not necessarily license to practice in all, is a necessity.

This is not a pipe dream or a visionary prophecy; the germinal elements of such a development are already here. The same forces that unleashed the lowering of trade barriers will push cross-border practice in our region. We must therefore prepare for the inevitable by developing now a corps of skilled lawyers that can measure up to the demand.

But how do we do that? I submit that the Philippine legal profession can do so in a pragmatic way, taking our cue from the way the West dealt at one point with its need to invest in China. 

At that time I observed, when it was in fashion to have offices in China, that multinational law firms had been hiring in New York our former associates for posting in Hong Kong and Singapore, to involve them in servicing their clients’ interest in China and Asean. The move made good sense because we Filipinos have several unique advantages: We speak English, we have an Asean face, and, most significant, we have trained in the two great legal systems of the world—the Civil and Roman law which we inherited from Spain and the Anglo-American common law brought here by the Americans.

I therefore exhort young lawyers (any lawyer less than my age is by definition “young”) to spread their wings, after a few years of working locally by way of giving back, and seek engagement, if not employment, with multinational firms with branch offices in Asean and/or China. The learning and training they will receive and the contacts and contracts they will make will serve them well personally. Also, when intra-Asean practice becomes the new normal, they will constitute the skilled manpower (and womanpower) that the Philippines will require to be a meaningful participant in the opportunities that will take place in such an unprecedented event as Asean economic integration.

As intimated earlier, the groundswell has begun. Our firm’s former associates are presently employed by multinational law firms, and they are assigned to their respective offices in New York, Sydney, Paris, Belgium, the Hague, Hong Kong, Jakarta and Singapore. There is no reason to believe that the same phenomenon is not happening in the other big law firms in the country. And there certainly is no justification why the movement will not be inclusive of all in the Philippine legal profession.

It is my hope that while there is still time, Philippine lawyers will decide to ride in front of the Asean wave. Otherwise, we will be ceding the dominance of the forthcoming cross-border Asean practice of law to lawyers of other countries. That would be a pity because the potential for legal services in the Asean alone is tremendous. I would hate to see us lose it by default.

Ricardo J. Romulo is a senior partner of Romulo Mabanta Buenaventura Sayoc & De Los Angeles.

x x x."

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Monday, November 17, 2014

Foreigners may now own 100% of Phl banks

sEE - Foreigners may now own 100% of Phl banks

"x x x.

Foreign banks can now apply to operate in the country or to acquire up to 100 percent of a local lender following the issuance of the implementing rules and regulations of the amended foreign banks law.

“We are very appreciative of the efforts of our legislators to pass into law RA 10641 and the BSP is quite happy to now issue the IRR to execute this law,” Bangko Sentral ng Pilipinas Governor Amando M. Tetangco Jr. said in a statement.

RA 10641 allows the entry of more foreign banks in the country

Moreover, this allows foreign banks to buy as much as 100 percent of a local bank, amending a previous provision that only permits them to own up to 60 percent of any Philippine lender’s voting stock.
x x x."

Friday, November 14, 2014

CA allows anti-dummy case vs Piatco exec | Headlines, News, The Philippine Star |

See - CA allows anti-dummy case vs Piatco exec | Headlines, News, The Philippine Star |

"x x x.

MANILA, Philippines - A director of Philippine International Air Terminals Co. Inc. (Piatco), the builder of   Ninoy Aquino International Airport (NAIA) terminal 3, will be charged with violation of the Anti-Dummy Law on orders of the Court of Appeals (CA).
The CA’s special 11th division has denied the plea of Gil Camacho to stop the Department of Justice (DOJ) from charging him with violating Presidential Decree 715, which amended Commonwealth Act 108, the Anti-Dummy Law.
PD 715 provides that a person is liable under the Anti-Dummy Law if he or she allows or assists an unqualified person or corporation to enjoy a franchise.
Under PD 715 foreign investors are barred from acquiring more than 40 percent ownership in domestic corporations, particularly those involved in the operation and management of public utilities, such as airport terminal.
Based on documentary evidence, the DOJ held that Fraport had acquired more than 40 percent of Piatco’s ownership.
The National Bureau of Investigation has established Fraport’s more than 40 percent ownership of Piatco. 
Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1
In ruling against Camacho’s plea, the CA found no basis for for a temporary restraining order and/or a writ of preliminary injunction against the DOJ.
“It is an established doctrine that injunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society,” read the CA ruling.
“The grounds raised by the petitioners are intricately intertwined with the main issue in the petition; hence, courts are proscribed from extending such reliefs as this has the unwitting result of passing upon the merits of the main action without trial.”
Camacho told the CA the “baseless information” against him would not only work great injustice but would cause him “grave and irreparable injury.”
The case arose from the complaint of lawyer Jose Bernas that the threshold of 40 percent equity for foreign firms in utilities is exceeded when the indirect holdings of Fraport are factored.
x x x."

Wednesday, November 12, 2014

Republic Act No. 9271 - Quarantine Act of 2004

See - Republic Act No. 9271 | Official Gazette of the Republic of the Philippines

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled.
SECTION. 1. Title. — This Act shall be known as the “Quarantine Act of 2004.”
SEC. 2. The Bureau of Quarantine. — The Bureau of Quarantine under the Department of Health (DOH), with the category of a first-class line bureau, shall have a nationwide scope of function and international commitment in accord with the International Health Regulations (IHR) of the world Health Organization (WHO).
SEC. 3. Jurisdiction and the Functions of the Bureau. — The examination at ports of entry and exit in the Philippines of incoming and outgoing vessels and aircraft, the necessary surveillance over their sanitary conditions, as well as over their cargoes, passengers, crews, and all personal effects, and the issuance of quarantine certificates, bills of health or other equivalent documents shall be vested in and be conducted by the Bureau. This Bureau shall have authority over incoming vessels and outgoing vessels both domestic and foreign, including those of the army and navy, their wharfage and anchorage, and over aircraft and airports, insofar as it is necessary for the proper enforcement of the provisions of this Act.
SEC. 4. Authority to Promulgate and Enforce Rules and Regulations and Provide Penalties for Their Violations. — (a) The Director of the Bureau with the approval of the Secretary of Health, is authorized to promulgate and enforce rules and regulations as in his judgment are necessary to prevent the introduction, transmission or spread of “public health emergencies of international concern” from foreign countries into the Philippines or from one (1) domestic seaport/airport to another. For purposes of implementing these regulations, the Director of Bureau may provide intervention strategies such as health education and advisories, inspections, fumigation, disinfection, pest extermination, vaccination for international travel, medical examination of aliens/foreigners for immigration purposes and destruction of animals or articles found to be infected or contaminated as to be sources of infection to human beings in coordination with other concerned quarantine agencies such as veterinary quarantine, plant quarantine, etc. and other measures as in his judgment may be necessary.
(b) Regulations prescribed under this section shall provide for the apprehension, detention or surveillance for the purpose of preventing the introduction, transmission or spread of such public health emergencies of international concern as may be specified from time to time in Department Orders by the Secretary of Health upon the recommendation of the international health surveillance.
(c) Whenever it is deemed necessary for the protection of the public health of the nation from public health emergencies of international concern, immunization and other preventable measures against these diseases shall be mandatory on all persons arriving all any seaport/airport of entry in the Philippines.
(d) The Secretary of Health upon the recommendation of the Director of the Bureau may prescribe examination of any individual believed to be infected with a disease of international concern on board vessels and aircraft entering any seaport or airport in the Philippines. Such rules and regulations may provide that if upon examination, any such individual is found to be infected or has been exposed to infection considered as dangerous contact, he may be isolated aboard a vessel, in a hospital with facilities for infectious diseases, at a quarantine station, or at any isolation facility, and in such a manner as may be prescribed by the said regulations.
SEC. 5. Prohibition of Entry of Hazardous Cargo and Materials. — Whenever the Director of the Bureau determines that there is an existence of any public health emergency of international concern in a foreign country and that there is imminent danger of the introduction of hazardous cargoes or materials into the Philippines, he, in coordination with the Bureau of Customs and other concerned agencies, may recommend to the President, through the Secretary of Health, the prohibition of its entry for public health interest.
SEC. 6. Quarantine Stations. — The Director of the Bureau shall control direct and manage all quarantine stations, grounds and anchorages, and designate their boundaries. With the approval of the Secretary of Health, he shall establish such additional quarantine stations, grounds and anchorages if, in his judgment, these are necessary to prevent the introduction of diseases of international concern into the country. The Director, in the same manner may also order the closure of non-functional quarantine, stations, grounds and anchorages. ATcaEH
SEC. 7. Quarantine Documents/Clearances of Vessels and Aircraft. — (a) All vessels or aircraft from foreign ports arriving at any port of the Philippines shall be required to submit the required maritime declaration of health/general declaration and other documents as prescribed by the regulations.
(b) All ocean-going vessels or international aircraft from foreign seaports/airports calling at any seaport or airport in the Philippines to disembark its passengers or discharge its cargo, or for other purposes must secure a quarantine clearance in compliance with the health regulations. This quarantine certificate or/clearance: (Pratique) shall be a prerequisite to customs clearance.
(c) After compliance with the quarantine laws and regulations is all vessels or aircraft leaving any seaport or airport of the Philippines shall secure quarantine outgoing clearance. This certificate/clearance shall also be a prerequisite to customs clearance of outgoing vessels and aircraft.
SEC. 8. Penalties. — (a) Any person who violates any regulation prescribed in this Act shall forfeit to the Bureau of Quarantine a fine of not less than Ten thousand pesos (₱10,000.00) but not more than Fifty thousand pesos ₱50,000.00) or be imprisoned for not more than one (1) year or both at the discretion of the court of competent jurisdiction.
(b) Any vessel or aircraft that violates any provision this Act shall forfeit to the Bureau of Quarantine a fine of not less than One hundred thousand pesos (₱100,000.00) but not more than Five hundred thousand pesos (₱500,000.00).
SEC. 9. Authority to Utilize Income. — The Bureau of Quarantine shall be authorized to use at least fifty percent (50%) of the income generated, subject to accounting and auditing rules and regulations.
SEC. 10. Implementing Rules and Regulations. — The DOH shall promulgate the implementing rules and regulations of this Act within sixty (60) days after the enactment of this Act.
SEC. 11. Separability Clause. — In the event any provision of this Act or the application of such provision to any person or circumstances is declared invalid, the remainder of this Act or the application of said provisions to other persons or circumstances shall not be affected by such declaration.
SEC. 12. Repealing Clause. — Republic Act No. 123 of 1947, as amended, and all acts, rules and regulations regarding foreign and local quarantine not consistent with this Act are hereby repealed.
SEC. 13. Effectivity. — This Act shall take effect after fifteen (15) days after its publication in at least two (2) national newspapers of general circulation.

State witness; SC affirms ruling dropping case vs suspect in Barrameda slay | Inquirer News

See - SC affirms ruling dropping case vs suspect in Barrameda slay | Inquirer News

"x x x.

MANILA, Philippines – The Supreme Court upheld the decision of the Court of Appeals and the Malabon court in discharging Manuel Montero as government witness in the 2007 murder case of Ruby Rose Barrameda.
In a 20-page decision made public Tuesday, the high court’s second division said Malabon Regional Trial Court Branch 170 Judge Zaldy Docena did not act with grave abuse of discretion when he ordered that Montero be stricken off the list of accused to become a state witness.

In agreeing with the appellate court’s decision, the high court said it found that all the requisites under Section 17, Rule 119 of the Revised Rules of Criminal Procedure have been fully complied with when Docena made the order that Montero is qualified to become a state witness as he does not appear to be most guilty although he is considered as a principal accused by direct participation.

Docena also said that if Montero did not confessed to the crime, including Barrameda’s abduction and subsequent murder, it would have remained undiscovered and unsolved. Likewise, the RTC said Montero has not been convicted of any crime involving moral turpitude.
This decision prompted Manuel Jimenez Jr., the father of Barrameda’s husband, Manuel Jimenez III, to move for the reconsideration of Docena’s order which the appeals court initially upheld in May 22, 2012. However, the appeals court reversed its ruling when the prosecution panel filed a motion for reconsideration, prompting Jimenez to take the case to the high court.
Jimenez Jr. is facing murder charges, while his son was charged with parricide.
Also charged in the case were Jimenez III’s uncle, fishing magnate Lope Jimenez, and alleged henchmen Eric Fernandez, Robert Ponce and Lennard “Spyke” Descalso.
In its ruling, the high court said petitioner failed to prove not merely a “reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Judge Docena in issuing the impugned order.”
The high court also said the prosecution complied with the requisites of the Revised Rules on Criminal Procedure contrary to Jimenez’ claim.
“We see no merit in Jimenez’s allegation that no absolute necessity exists for Montero’s testimony. In the present case, not one of the accused-conspirators, except Montero, was willing to testify on the alleged murder of Ruby Rose and their participation in the killing. Hence, the CA was correct in ruling that Judge Docena acted properly and in accordance with jurisprudence in ruling that there was absolute necessity for the testimony of Montero, He alone is available to provide direct evidence of the crime,” the high court said in ruling penned by Associate Justice Arturo Brion.

The high court added that it find no merit in Jimenez’ argument that Montero’s testimony cannot be substantially corroborated in its material points adding that “the evidence consisting of the steel casing where Ruby Rose cadaver was found, the drum containing the cadaver, the spot in the sea that Montero pointed to where the cadaver was retrieved, the victim’s clothing when she was killed as well as the burned personal effects, all partly corroborate some of the material points in the sworn statements of Montero.
“With these as bases, Judge Docena’s ruling that Montero’s testimony found substantial corroboration cannot be characterized as grave abuse of discretion,” the ruling said.
Concurring with the ruling are Associate Justices Antonio Carpio, Mariano del Castillo, Martin Villarama Jr. and Marvic Leonen."