Philippine Laws and Cases - Atty. Manuel J. Laserna Jr.

Mass Incarceration and Criminal Justice in America : The New Yorker

2012-01-28T05:14:00.001+08:00

Mass Incarceration and Criminal Justice in America : The New Yorker

This is an indictment of US prisons and criminal justice system. If US prisons are bad, one should better see the condition of Philippine prisons nationwide, which is worse. Although there have been physical and other improvements of Philippine prisons in the past, they are still overloaded or crowded, dirty, unsafe, underfunded, and understaffed. At any rate, the Phil. Gov. is doing its best to improve its prisons system and to professionalize its jail personnel within the limits of its financial straits.

"x x x.

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.

The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.

The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.

x x x."

The US vs. Genuine Reforms at the UN » Counterpunch: Tells the Facts, Names the Names

2012-01-28T04:27:00.000+08:00

The US vs. Genuine Reforms at the UN » Counterpunch: Tells the Facts, Names the Names

We in the Philippines might not feel it, but for many years now there's tension between USA and UN as a world entity on so many fronts, mostly funding, human rights, and Middle East hot spot, especially during the reign of Pres. G. .Bush marked by 9/11 trauma.

"x x x.

The fact is, there has been much sabre-rattling in the US Congress targeting the UN. The campaign, led by Republican congresswoman Ileana Ros-Lehtinen, chairwoman of the House of Representatives Foreign Affairs Committee, is threatening the UN with all sorts of punishment if the organization does not cease its criticism of Israel and tighten the noose around Iran. Naturally, the UN is not meeting the expectations of Ros-Lehtinen and her peers. It happens to be a body that represents the interests of all its member states. Some US politicians, however, see the world through the distorted logic of former president George W. Bush: “Either you are with us, or you are with the terrorists.”

The late British author and humanitarian doctor Theodore MacDonald showed that the US actually has a love-hate relationship with the UN. In his final book, Preserving the United Nations; Our Best Hope for Mediating Human Rights, MacDonald reveals a strange reality: that the US and its allies labor to undermine the UN, while also using it to further their own military, political and economic objectives. Expectedly, successive US governments had mastered the art of political manipulation at the UN. When successfully co-opted to accommodate US military designs, the UN suddenly becomes true to its mission – per Washington’s account, of course. However, when US pressures failed to yield a unified front against Iraq in late 2002, President Bush asked in his first address to the United Nations, on September 12, 2002: “Will the United Nations serve the purpose of its founding, or will it be irrelevant?”

The Bush years were rife with such ultimatums – to the UN and the whole world. However, a similar attitude continues to define the administration of Barack Obama. The US latest assault on the UN is now happening under the guise of reforms, but no ‘reforms’ are possible without first creating the needed polarization aimed at pushing for an American agenda. Joe Torsella, the US Deputy Ambassador for Management and Reform of the United Nation, spoke of the latest US efforts at reining in the 47-nation Geneva-based Human Rights Council. “The US will work to forge a new coalition at the UN in New York, a kind of ‘credibility caucus’ to promote truly competitive elections, rigorous application of membership criteria, and other reforms aimed at keeping the worst offenders on the sidelines,” he said (Reuters, Jan 20).

UNHRC is an outspoken critic of human rights violations. As of late, the organization has been particularity vocal regarding the rights violations underway in Syria. It is also very critical of Israel and its one-sided wars and human rights violations in Gaza and the rest of the occupied territories. For years, the US has conspired to undercut, intimidate and silence this criticism.

The Reuters report on the US latest push for the supposed reforms states: “Council members include China, Russia and other countries where rights groups say abuses are commonplace.” To offset the seeming inconsistency – between UNHRC mission and its members’ records – the US, according to Torsella, wants to “hold Human Rights Council members to the same standard of truly free and fair elections that the U.N. promotes around the world, and insist on the highest standards of integrity for the Council and all its members.” Viewed without context, it is a noble endeavor indeed. However, it becomes a tainted statement when one considers that the US status at the UN has been achieved through the least democratic of all means: a disproportionate political power (the veto) and money (used for arm-twisting).

Attempting to curb and contain the UN, as opposed to punishing and boycotting the international body, is basically what sets Democrats apart from Republicans. Unlike Republicans, “the other side of the debate (mostly Democrats) believes that achieving these reforms requires strong American leadership – and strong leadership is demonstrated by paying dues on time and in full. You can call this side ‘constructive engagement,’” wrote Mark Leon Goldberg in the UN Dispatch (January 20). Practically, both approaches are aimed at achieving similar outcomes: realizing US policies, rewarding allies and punishing foes – even at the expense of the noble mission once championed by the UN over 65 years ago.

While the latest push for ‘reforms’ is being hailed by Washington’s media cheerleaders, no honest commentator could possibly believe the US campaign against UNESCO, UNHRC and the UN as a whole represents a genuine democratic endeavor. In fact, the truly urgent reforms required right now are ones that aim at correcting what MacDonald described in his book as the UN’s “foundational defects”.

MacDonald counseled for immediate addressing of the “issue of permanent membership and the use of the veto”. He also recommended the granting of greater power to the General Assembly and eliminating the “imposed use of the US dollar” in mediating UN transitional affairs. MacDonald’s guidelines for reforms are comprehensive, and rely on the concept of equality, guided by humanitarian and moral urgencies.

The same can hardly be said of Washington’s latest UN intrigues and shady politics.

Ramzy Baroud is editor of PalestineChronicle.com. He is the author of The Second Palestinian Intifada: A Chronicle of a People’s Struggle and “My Father Was a Freedom Fighter: Gaza’s Untold Story” (Pluto Press, London).

x x x."

Employers, you might (or might not) be liable for retaliation if . . . : Employment and Labor Insider : Constangy Brooks and Smith: Insight into workplace, affirmative action, workers' compensation, occupational safety, class action, and wage and hour law.

2012-01-28T04:15:00.000+08:00

Employers, you might (or might not) be liable for retaliation if . . . : Employment and Labor Insider : Constangy Brooks and Smith: Insight into workplace, affirmative action, workers' compensation, occupational safety, class action, and wage and hour law.

Below is an article on US labor law on RETALIATION. In the Philippines, UNFAIR LABOR PRACTICE is its equivalent in labor relations law. The Philippine labor code meets world labor law standards, more or less.

"x x x.

Retaliation is essentially taking action against an employee because the employee engaged in some type of activity that is protected by law. The law breaks it down into three parts, each of which the employee has to prove:

1-The employee engages in some type of legally protected activity(more on this below).

2-"Adverse employment action" is taken by the company.

3-There is a "causal nexus" (that's "connection" to you and me) between the protected activity and the adverse action. In other words, there has to be some reason to believe that the adverse action was taken because of the protected activity.

Almost all federal and state employment laws have anti-retaliation provisions. In the labor relations arena, the "non-discrimination" provisions in the National Labor Relations Act are essentially anti-retaliation provisions. A wrongful discharge lawsuit where an employee claims he was terminated for refusing to break the law or for complying with the law is also essentially a retaliation claim.

"Protected activity" can include such things as filing a charge or lawsuit, providing truthful testimony or other help to someone else in connection with a charge or lawsuit, or making an internal complaint about unlawful practices. These activities may be protected even if the employee is wrong -- as long as the employee had a good-faith belief that the employer's conduct was illegal. (Sometimes the employee's belief must also be objectively reasonable to be protected -- check the relevant law and the interpretations from courts in your jurisdiction.)

x x x."

Raps filed vs SC spokesman over WB fund mess - The Philippine Star » News » Headlines

2012-01-28T03:59:00.000+08:00

Raps filed vs SC spokesman over WB fund mess - The Philippine Star » News » Headlines

Supreme Court fund mess has been exposed by World Bank. The media also pounced on it. A party-list rep wants it investigated by the OMB. The scandal aggravates the poor image of the Judiciary caused by the CJ Corona impeachment trial. It'll further lower the already very low (scandalously low, actually) survey ratings of CJ Corona and the Supreme Court, the first in 25 years.

"x x x.

MANILA, Philippines - Supreme Court Administrator and spokesman Jose Midas Marquez is facing charges for alleged misuse of the high tribunal’s Judicial Reform Support Project (JRSP) funds from the World Bank (WB) and for abusing his office by lawyering for Chief Justice Renato Corona who is facing an impeachment trial at the Senate.

In a three-page complaint filed before the Office of the Ombudsman yesterday, Akbayan party-list Rep. Walden Bello said Ombudsman Conchita Carpio-Morales should investigate Marquez for possible criminal and administrative offenses.

Marquez decried Akbayan’s move, saying it was still premature because the Supreme Court (SC) is presently addressing the WB’s concerns.

Bello said there are supposed irregularities in the implementation and management of the JRSP as evidenced by “disturbing details” pointing to him and Corona “at the center of another tangle of questionable transactions” involving funds intended to expedite case resolution and increase access to justice, among others.

“Based on reports sourced from the World Bank, Mr. Marquez’s designation as court administrator, head of the Public Information Office and chair of the Bids and Awards Committee led to a ‘breakdown in internal controls’,” he said.

He alleged that ineligible expenditures were charged against the project funds and contracts were approved and awarded despite issues flagged by the Office of the Court Attorney.

“As a result of these irregularities, implementation of key components of the JRSP has stalled. Furthermore, the WB has asked the Supreme Court (SC) to refund the $199,000 (or roughly P8.6 million) in ineligible expenditures,” Bello’s complaint read.

He argued that the amount, which was funded through a loan and therefore a liability of the state, would inevitably be paid for from public coffers.

x x x."

Older Prisoners Mean Rising Health Costs, Study Finds - NYTimes.com

2012-01-28T03:54:00.000+08:00

Older Prisoners Mean Rising Health Costs, Study Finds - NYTimes.com

I don't have the numbers of prisoners in Philippine jails who are deemed seniors, but I suppose their total would not be too far from US stats on the matter. Read the article below. Click the link above.

"x x x.

State or federal prisons now hold about 26,200 people 65 years and older, and about 124,000 inmates older than 55, the report said. The number of incarcerated people who are older than 55 has grown at a rate six times that of the rest of the prison population.

While most elderly inmates have been in prison for years, the number of older people just entering has also been increasing — along with the cost of their care.

In Michigan, the annual cost of health care for the average inmate was $5,800, according to the study, a figure that increased to $11,000 for prisoners aged 55 to 59. The cost spiraled to $40,000 a year for inmates 80 years and older.

x x x."

The Indefinite Detention of Citizens and Non-Citizens Under the NDAA | Joanne Mariner | Verdict | Legal Analysis and Commentary from Justia

2012-01-28T03:38:00.000+08:00

The Indefinite Detention of Citizens and Non-Citizens Under the NDAA | Joanne Mariner | Verdict | Legal Analysis and Commentary from Justia

The Philippines is luckier that the USA in the sense that the former does not have (yet) the US equivalent of a "National Defense Authorization Act" (NDAA) that authorizes the President to INDEFINITELY DETAIN its citizens as an anti-terrorism legal tool. It will be recalled, though, that during the dreaded martial law regime and post martial law rule (1972-86) of Philippine dictator Ferdinand Marcos, he had both legislative and judicial powers merged in himself as head of state (Amendment No. 6, 1973 Constitution) and the power to issue search warrants and warrants of arrest and to detain Filipinos indefinitely (ASSO or the arrest, search and seizure order).

"x x x.

The Indefinite Detention of US Citizens

The passage of the National Defense Authorization Act (NDAA), a federal statute essentially meant to codify the Guantanamo approach to justice, evoked a fair measure of outrage and alarm. Right wing radio announcer Rush Limbaugh condemned the new law as “total authoritarianism,” and liberal law professor Jonathan Turley warned that it was “one of the greatest rollbacks of civil liberties in the history of our country” — an unusual and possibly unprecedented coincidence of views. Online petition sites are overflowing with calls for the NDAA’s repeal, at least one of which has tens of thousands of signatories, and some are even demanding the recall of the “treasonous” members of Congress who voted for the legislation.

But most of the op-eds, editorials, and blog posts denouncing the detention provisions of the NDAA had little to say about the Yemenis, Afghans, Kuwaitis and other non-US citizens who have been held at Guantanamo for the past decade. Turley’s jeremiad did not even mention Guantanamo; nor did Limbaugh, in his radio harangue.

The civil liberties issue that has resonated with the American public is the possibility that American citizens suspected of terrorism could be picked up by US military forces and held indefinitely without charge. This is a non-trivial concern, at least in the long term, given the language of the relevant provisions of the NDAA, which does not distinguish between citizens and non-citizens; given post-9/11 detention practices (US citizen Jose Padilla was arrested in Chicago in 2002 and held in military custody for three-and-a-half years without charge), and given the unsettled state of Supreme Court precedent on these questions.

But the theoretical possibility that an American citizen could be held indefinitely pales, in real human terms, next to the indisputable fact that 171 non-citizens remain behind bars at Guantanamo, all but five of them without formal charge. (Four prisoners have been convicted and one is facing terrorism and other charges.)

Whatever the NDAA may mean for Americans—and I should be clear that I think it is very bad news—it is worse for non-citizens. It was clearly designed to obstruct Guantanamo’s closure, to coerce President Obama into using military options when dealing with non-citizens suspected of terrorism, if not force him to do so, and to raise the political and procedural costs of relying on the civilian justice system.

The Indefinite Detention of Non-Citizens

Americans are not the only ones who cherish liberty. The families of the 171 men detained without charge at Guantanamo, though they have no electoral means to influence US policy and little sway with the US public, believe their loved ones deserve a fair process for adjudicating their guilt or innocence.

Think about it. Are you outraged at the thought of being held without charge by your own government? Now consider being held indefinitely by someone else’s government.

Joanne Mariner, a Justia columnist, is the director ofHunter College's Human Rights Program . She is an expert on human rights, counterterrorism, and international humanitarian law.

x x x."

Why Interdisciplinary Legal Scholarship Is Good for the Law, the Academy, and Society at Large | Neil H. Buchanan | Verdict | Legal Analysis and Commentary from Justia

2012-01-28T03:28:00.000+08:00

Why Interdisciplinary Legal Scholarship Is Good for the Law, the Academy, and Society at Large | Neil H. Buchanan | Verdict | Legal Analysis and Commentary from Justia

In Philippine law schools, law professors or instructors are part-time teachers of law, i.e. private trial lawyers or salaried/employed lawyers in the public and private sectors who earn by the side teaching law and sharing their specialized legal knowledge. They don't have TENURE as in the case of US law schools. The US law academe truism "PUBLISH OR PERISH" is not observed in Philippine law schools. Neither is it a threat to the vertical mobility of law professors. In fairness, though, almost all Philippine law schools maintain a law journal or law review, despite the financial difficulties that they face and the lack of interest or time of law professors and law students to write.

"x x x.

The Old and the New: Legal Scholarship Has Certainly Changed

Legal scholarship saw a sea change, starting roughly in the 1970’s. Prior to that time, law professors would write articles, treatises, and books describing the state of specific areas of the law. Summarizing recently decided cases, legislative developments, and so on, the typical law professor would make a career of publishing a small number of writings that were intended to inform practitioners and courts about developments within various legal doctrines. Tenure at even the most elite institutions was based on a single “tenure piece,” a long law review article that was expected to establish the author’s mastery over a field of law.

While this was the norm in law schools, professors elsewhere in the universities were expected to generate much larger numbers of “original” contributions to their fields. Even lower-ranked economics departments, for example, often required six or more peer-reviewed publications before considering granting tenure to a younger professor. These publications were very much “inside jobs”—clear to those whose training equipped them to have these scholarly conversations, but incomprehensible to outsiders who had not been weaned on the field’s scholarly literature.

During the years following the ferment of the 1960’s, however, younger legal scholars began to chafe at the idea that their job was merely to become little more than summarizers of the law, experts in the nuts and bolts of legal doctrine as it currently exists, with precious little latitude to describe how the law could or should change.

New Tools for Answering New Questions: Policy Questions Require Knowledge that Cuts Across Disciplines

Once legal scholars began to think about what the law should become, rather than what it is, they quickly discovered that their established tools were incomplete, at best. Although former Justice Brandeis had blazed the trail toward using statistics and economics in thinking about legal and policy questions, few law schools had hired professors on the basis of their abilities in areas beyond legal doctrine, as very narrowly conceived.

In the decades since then, law schools have hired many people with formal training in academic fields outside of the law. This includes a small number of people with Ph.D.’s but no law degree; a larger number of people with law degrees and Ph.D.’s; and many more people with sub-Ph.D.-level training in various subjects, along with their law degrees. By design and by necessity, legal scholarship began to change, becoming much more “academic,” in the sense that it has begun to resemble in important ways scholarship in traditional scholarly fields like history, literature, the social sciences, and the natural sciences.

Any broad change in a field of study, of course, will invite special scrutiny. In this case, the courts have become especially perturbed by the movement of legal scholars away from their traditional role, regretting the loss of legal scholarship’s role as a source of guidance for the courts as they decide cases. The most recent such complaint was set forth by Judge Jose Cabranes of the U.S. Court of Appeals for the Second Circuit earlier this month. Cabranes described legal scholarship as having left terra firma in favor of outer space, adding, “Legal scholarship is a conversation among members of the academy with the rest of us reading—maybe.”

Such sarcasm is hardly unusual in attacks on legal scholarship. The judge’s key complaint, however, is clearly that law professors are no longer writing things that he and his colleagues find useful (or even interesting). While one can understand Judge Cabranes’s regret at seeing a familiar institution undergo change, however, it is hardly a condemnation of legal scholarship to say that law professors no longer serve as judges’ quasi-advisors. There are many other roles that legal scholars can fulfill.

Legal Scholarship for Policy Purposes: Combining Knowledge of the Law With Expertise in Other Fields Advances the Debate

If legal scholars, as a group, no longer serve the bench, whom do they serve? The short answer is: Society. Whereas we once were expected to produce scholarship that would allow judges to write better opinions, law professors now focus to a much larger extent on producing analytical and prescriptive writings that address all manner of social problems. Some scholars, moreover, produce scholarship that is intensely personal, informing policy debates only incidentally (and sometimes accidentally).

Not all scholarship in the law is good, nor should we expect it to be. As with other highly speculative ventures (oil drilling, Internet start-ups), much of the work of legal scholars (indeed, of all academics) can be expected to come up dry. Yet we press on, as we should. Constructive criticism allows us to adjust the parameters as to what types of scholarship will be rewarded, but it is simply not true that legal scholarship as a whole has become detached from reality, as some have charged.

Take, for example, my current working paper. My co-author (and fellow Verdict columnist) Michael Dorf and I are looking at the lessons to be learned from the debt-ceiling crisis last summer, and trying to understand the President’s options, should a similar crisis arise in the future (which, Republican leaders have made clear, is highly likely). Combining Professor Dorf’s expertise in constitutional law with my expertise in tax policy and economics, we are attempting to learn more about a question that might at first have seemed to be a matter of simply obeying the debt-ceiling statute.

Perhaps this example is too easy, however. Surely, legal scholars of the old school studied deep questions that went beyond mere court cases, especially when it came to questions regarding the separation of powers. Viewed in that way, our forthcoming article might be described as merely old-fashioned legal scholarship, as applied to Twenty-First Century problems. That such scholarship is still being produced is laudable, one might say, but maybe the judges who complain about the disconnect between reality and legal scholarship are simply talking about a body of scholarship to which our article is an exception.

In a Verdict column, of course, it is not possible or desirable to engage in statistical analysis of such claims. I can only say that, in my experience as an economics professor and now as a law professor, the vast majority of the work that I see is intensely tied to the real world. Legal scholars apply an impressive array of analytical methods, and the overwhelmingly bulk of legal scholarship is firmly based on planet Earth.

I again concede, of course, that some law review articles are less grounded than others. Some might even deserve to be called useless. Even some of the most notorious articles, however, can be seen to serve an important purpose in the creation of knowledge. One article, the entire title of which was one otherwise unprintable word, not only informed the debate about the nature of obscenity law (a debate as old-fashioned as it gets, in legal scholarship), but also, and more broadly, described the unique power of words to affect people’s reactions and behavior, while examining how social norms change.

If the accusation is: “Legal scholarship has become useless,” then the appropriate response is not, “All legal scholarship is immediately and obviously useful.” Subject to constant self-examination and outside review, however, the legal academy has created an environment in which useful scholarship is being produced in law schools across the country.

Is Legal Scholarship Redundant? Why Should Law Professors Write in Areas in Which Other Scholars Are Experts?

If legal scholars are no longer limiting their inquiries to traditionally legal subjects, however, is it not possible that they are merely becoming dilettantes, writing in areas where other “real” scholars should be allowed to proceed without being bothered by non-experts? Again, even setting aside the fact that many legal scholars actually are trained as experts in other fields, the answer is no.

Some questions, such as those surrounding the debt-ceiling debate, are truly interdisciplinary. Legal questions intermingle with economic questions, and some legal scholars make embarrassing errors in describing economic phenomena. Similarly, however, some economists make embarrassing statements about law. Two examples will illustrate the point.

First, in a book about law and economics, two economists were discussing the compensation of victims of injuries. Compensation in tort law has long been an obvious area of overlap between economics and law, and the scholars were attempting to make argue that a compensable injury must be serious enough to call for monetary damages. As a contrast to that point, the economists noted that some people feel so angry about certain situations that they feel outraged. But outrage, they assured readers, is not a valid basis in the law for compensation. What they apparently did not know, of course, was that the tort of “intentional infliction of emotional distress” is known officially in some states as the tort of “outrage.”

Second, whenever the subject of a constitutional amendment to balance the federal budget is discussed, one can always rely on a non-lawyer to ask: “Well, if Congress does not balance the budget, what happens then? Do we put them all in jail?” Not only have I heard economists say this, but before I earned my law degree, I was one of the economists who said it!

The point of both of these examples is that scholars who are not trained in the law can miss important points that lawyers would not miss. Moreover, mistakes such as those I described in both of those examples can ultimately lead to a cascade of additional mistakes about possible policy interventions, based on a one-dimensional view of the law.

Finally, it is important to understand that the scholarly conversations among historians, or among biologists, or among economists, are by their nature limited inquiries. That is, experts in a field are trained to set aside certain questions that might be important to their field as it applies to the real world, but that the field as a whole views as “off limits” to its internal scholarly discussions. These voluntary limitations can be based on the consensus that the questions are too difficult to answer, or a belief among the experts in the field that it would be a distraction from the current research agenda if every real-world consideration were to intrude upon the conversation. One of the most important roles that legal scholars play, therefore, is the role of the deliberate outsider, who can dare to ask the unacknowledged questions.

When economists talk about “efficiency,” for example, much is lost in translation. Even if economists know that they are ignoring important real-world facts (and many economists often seem not to realize that they are doing so), legal scholars are able to ask questions from a different perspective. Doing so often opens up the discussion in a way that avoids the mistakes that disciplinary tunnel-vision can cause.

By using our legal training and opportunistically using the knowledge and methods of other fields, we as legal scholars improve not just our own thinking, but potentially also the thinking in other academic fields. Ultimately, this improves the law, the policies that shape the law, and thus society as a whole. No group of academics can claim to directly make the world a better place every day, and through every published article, and legal scholars are no exception. Even so, our fundamental enterprise is unique, productive, and forward-looking.

Legal scholarship should and could be better. As it stands, however, it is quite good. Thus, it certainly does not deserve the scorn of judges or the public at large.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). His columns focus on budget policy, tax law, and other legal issues with economic implications. He blogs at DorfonLaw.org .

x x x."

The Lower Court Rulings in Nordyke and Heller II Highlight Judicial Confusion Over Gun Rights: | Vikram David Amar | Verdict | Legal Analysis and Commentary from Justia

2012-01-28T03:12:00.000+08:00

The Lower Court Rulings in Nordyke and Heller II Highlight Judicial Confusion Over Gun Rights: | Vikram David Amar | Verdict | Legal Analysis and Commentary from Justia

In the Philippines, there is no constitutional provision on the RIGHT TO BEAR ARMS, unlike in the USA.

"x x x.

Nordyke v. King: The Majority View

In Nordyke v. King , Judge O’Scannlain wrote the majority opinion for the Ninth Circuit upholding a county ordinance prohibiting the possession of firearms on county property. The challengers had argued that the ordinance unconstitutionally prevented them from holding gun shows on county property.

The court began by rejecting the argument that all laws burdening gun possession must receive strict scrutiny review—the highest possible level of review. After examining cases involving abortion, content-neutral speech regulations, election laws and the right to marry, the court concluded that only those laws that substantiallyburden the right to possess firearms for self-defense purposes would receive heightened scrutiny. The court did not reach the question of what standard of review should apply to laws that pass this threshold, because plaintiffs’ claim did not satisfy this requirement.

In this context, Judge O’Scannlain considered whether the challenged law left open reasonable alternative means for individuals to exercise their right to keep and bear arms. Clearly, he said, restricting opportunities to purchase firearms at gun shows on county land did not interfere with numerous other available venues for obtaining firearms, even if these other avenues involved some increased cost or inconvenience to some would-be purchasers.

Judge Gould’s Concurrence

Judge Gould concurred with the majority’s bottom line but strongly disputed its reasoning. Using free speech doctrine as his guide, he argued that gun control laws should be subject to heightened scrutiny only when they are directed at restricting the core purposes of the Second Amendment, which include possessing firearms for the defense of one’s home, and for “resistance of tyrannous government and protection of country.”

All other gun regulations, he argued, should be reviewed under a mid-level, but deferential, reasonableness standard of review, somewhat akin to that used to evaluate content-neutral, time, place, and manner speech regulations. To Judge Gould, the substantiality of the burden on the right was entirely irrelevant to the standard of review to be applied.

These competing opinions also clashed on the meaning of the non-exhaustive list of longstanding, presumptively constitutional gun control regulations detailed in Heller (and discussed in our first column in this series.) Judge O’Scannlain maintained that the Supreme Court intended this list merely to describe laws that it presumed would survive the appropriate level of constitutional scrutiny—whatever that standard might be.

By contrast, Gould maintained that the list demonstrated that many gun control regulations should be subject to deferential review. He argued that the very existence of the Court’s list is inconsistent with O’Scannlain’s contention that laws substantially burdening the right to possess firearms for self-defense purposes must receive some form of heightened scrutiny. Surely, a law prohibiting felons from possessing firearms substantially burdened their right to keep and use guns to defend themselves, and yet the Court in Heller stated that laws banning felons from possessing firearms are presumptively constitutional. Under O’Scannlain’s analysis, such laws would be presumptively unconstitutional because they substantially burden the right to self-defense and must be justified under rigorous review.

The Ninth Circuit has decided to review the Nordyke decision en banc. We endorse this en banc review—as we find that there are some serious unanswered questions in both the O’Scannlain and Gould approaches. And, we hope that the Ninth Circuit appreciates the limits of both the O’Scannlain and Gould frameworks when it resolves the case en banc.

x x x."

Men Who Give It Away: | Joanna L. Grossman | Verdict | Legal Analysis and Commentary from Justia

2012-01-28T03:04:00.000+08:00

Men Who Give It Away: | Joanna L. Grossman | Verdict | Legal Analysis and Commentary from Justia

The legal issues raised in the excerpts below can well be potential Philippine civil law controversies in the future.

"x x x.

Are Free, Non-Anonymous Sperm Donors Legally Fathers of All Resulting Children?

Recall the 20/20 story about Beth. 20/20’s episode depicted Beth’s situation as follows: Beth’s husband, Richard, inseminates his wife with donor-Drew’s sperm. Beth and Richard are shown lying next to each other in the hotel bed, as Beth waits for the sperm to (hopefully) do its work. Beth tells the reporter that it is important that Richard be there so he “can say he was there at conception. He will be the father of the baby.” But, is Beth right? Or is Drew, instead, the father of the child if Beth conceives with his sperm?

And what about Trent, or the married man whose face 20/20 blocked out? Is each of them the father of any child who is produced through his donation (in Trent’s case) or “natural insemination” (in the married man’s case)?

Parentage law tells us who is, and who is not, a legal parent. A legal parent is someone who, by virtue of a recognized tie to the child, is endowed with constitutionally protected rights and subjected to potentially onerous obligations. A legal parent can sue for custody or visitation, but also is obligated to support the child.

Women typically become legal mothers by giving birth to a child. (Complications can arise, however, when a woman gives birth to a child that was conceived with someone else’s egg or that was commissioned through a surrogacy arrangement.) Men become legal fathers in a variety of ways. A genetic tie is generally not sufficient, on its own, to make the biological father the legal father. He must also be married to the mother, have acted as a father, or have had his paternity acknowledged or adjudicated.

Most states have a special set of rules that govern the issue of parentage when children are conceived using assisted reproduction. These laws appeared for the first time in the 1970s, when artificial insemination with donor sperm became more common and more accepted.

Under the Uniform Parentage Act (UPA) of 1973, an anonymous sperm donor was not deemed to be the “legal father” of any resulting children as long as the insemination was performed by a licensed physician and the woman was married. (Whether or not the sperm donor was paid for his services was not a factor.) The woman’s husband, in turn, was presumed to be the legal father of the child, and that presumption could only be rebutted in exceptional circumstances. Many states either adopted the UPA expressly, or adopted their own statutes with similar provisions.

What Parentage Would Look Like, in the Cases I’ve Described, Under the Original Uniform Parentage Act

Under the original, 1973 version of the UPA that I just described, Beth’s husband would not be the legal father of any child resulting from a conception with Drew’s sperm, because the insemination was not handled by a physician. Whether Drew would have been the legal father of Beth’s child would depend on whether and when Drew admitted paternity (or had paternity adjudicated) or held himself out as a father.

Likewise, any child born to Christa, the woman who was inseminated by her partner, in the car, with Trent’s sperm, would not be governed by the assisted reproduction provisions of the UPA because she was neither married nor relying on the services of a licensed physician.

Like Drew, under the original UPA, Trent might or might not, have been established as a legal father depending on the actions he took following birth.

(In fact, neither Beth nor Christa became pregnant through the particular inseminations depicted on 20/20.)

What Parentage Would Look Like, in the Cases I’ve Described, Under the Revised Uniform Parentage Act

In 2002, the UPA was substantially revised. Among other changes, the UPA dropped the requirements that the insemination must be performed by a licensed physician, and that the woman must be married.

The revised UPA’s provision on assisted reproduction applies to any conception that relies on donor sperm, whether the identity of the donor is known or unknown, and whether the donor was paid or unpaid. The revised statute clearly provides that a sperm donor is not the legal father of any resulting child. As the comment to the applicable provision explains, “The donor can neither sue to establish parental rights, nor be sued and required to support the resulting child. In sum, donors are eliminated from the parental equation.”

Under this type of statute, Drew and Trent would thus be off the hook for any child-support responsibilities (and barred from invoking any parental rights of custody or visitation). But would these children have legal fathers?

In the case of Beth, her husband Richard would be the legal father ifhe consented in writing to the insemination.

And Christa’s female partner might be recognized as a second legal parent, depending on the law’s treatment of lesbian co-parents (about which I’ve written in a prior column).

In States That Follow the Original, 1973 UPA, or Have Their Own Laws Relating to Sperm Donation, the Parties to a Donation May Still Face Legal Risks

Only nine states, however, have adopted the 2002 version of the UPA. Some still follow the 1973 version, which eliminates the parentage of donors only for married women who are inseminated by doctors.

Other states have their own provisions, which may or may not produce the parentage result desired by the women who avail themselves of sperm donation. There have been cases going both ways—finding that a known sperm donor was indeed a legal father, and finding the opposite. The degree of involvement between donor and child often plays a role. And contracts designed to regulate these arrangements, and the parentage that flows from them, have been only inconsistently enforced. Unless the women who use donated sperm, and their donors, are fully-versed in the law of the relevant jurisdiction, they are wading into the waters of sperm donation at some risk.

The Legal Dangers of “Natural Insemination” by a Sperm Donor

Perhaps the most momentous risk is faced by the unidentified married man who participates in “natural insemination” with many women. The statutes providing for the non-parentage of sperm donors define donors to be men who provide sperm for “assisted reproduction,” which is in turn defined as a “method of causing pregnancy other than sexual intercourse.” This is so, according to the 2002 UPA, “irrespective of the alleged intent of the parties.”

Under these statues, then, getting a woman pregnant by having sex with her (including in the case of “partial natural insemination”) isnot assisted reproduction at all. It’s no different from a one-night stand from which a pregnancy results. Thus, whether or not the pregnancy was intended or desired, and whether the sperm “donor” intended to be a father or not, he may find that he is one. Children that result from a sexual union are governed by the conventional rules of parentage. The unwed father (here, the sperm “donor”) may be a legal father for purposes of child support—especially based on the genetic tie alone, if paternity can be established. And he may be able to insist on playing a part in the children’s lives, even though the women who turned to him for sperm want nothing of the sort.

It may be true, as Elizabeth Vargas marvels at the beginning of the 20/20 piece story, that you can find absolutely everything on the Internet. But fresh sperm may not be the only thing you need to conceive a child who will have the parents (and only the parents) that you intend it to have. Given the structure of parentage law, a doctor and a lawyer may play important roles as well.

Joanna L. Grossman, a Justia columnist, is a professor of law at Hofstra University. She is the coauthor ofInside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011) and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.

x x x."

Resigned; not illegally dismissed - G.R. No. 183915

2012-01-14T01:00:00.000+08:00

G.R. No. 183915

Resigned; not illegally dismissed:

"x x x.

After a review of the case, we uphold the findings of the Court of Appeals that Bilbao voluntarily resigned from her employment with Saudia. Her resignation letter and undertaking that evidenced her receipt of separation pay, when taken together with her educational attainment and the circumstances surrounding the filing of the complaint for illegal dismissal, comprise substantial proof of Bilbao’s voluntary resignation.

Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether he or she, in fact, intended to sever his or her employment.[17]

In the instant case, Bilbao tendered her resignation letter a week after her transfer to the Jeddah office. In the said letter, Bilbao expressed her gratitude for the support which Saudia had given her for her eighteen years of service. Clearly, her use of words of appreciation and gratitude negates the notion that she was forced and coerced to resign. Besides, the resignation letter was hand-written by Bilbao on a Saudia form and was in English, a language she is conversant in.

Additionally, instead of immediately filing a complaint for illegal dismissal after she was allegedly forced to resign, Bilbao executed an Undertaking in favor of Saudia, wherein she declared that she received her full and complete end-of-service award with final settlement, to wit: x x x.

x x x."

Renewal of lease; mutuality of contract - G.R. No. 161718

2012-01-14T00:58:00.000+08:00

G.R. No. 161718

Renewal of lease period; mutuality of contract:

"Petitioner argues that the renewal of the Contract of Lease cannot be made to depend on the sole will of respondent for the same would then be void for being a potestative condition.

We do not agree. As we have already explained in Allied Banking Corporation v. Court of Appeals [47]:

Article 1308 of the Civil Code expresses what is known in law as the principle of mutuality of contracts. It provides that "the contract must bind both the contracting parties; its validity or compliance cannot be left to the will of one of them." This binding effect of a contract on both parties is based on the principle that the obligations arising from contracts have the force of law between the contracting parties, and there must be mutuality between them based essentially on their equality under which it is repugnant to have one party bound by the contract while leaving the other free therefrom. The ultimate purpose is to render void a contract containing a condition which makes its fulfillment dependent solely upon the uncontrolled will of one of the contracting parties.

An express agreement which gives the lessee the sole option to renew the lease is frequent and subject to statutory restrictions, valid and binding on the parties. This option, which is provided in the same lease agreement, is fundamentally part of the consideration in the contract and is no different from any other provision of the lease carrying an undertaking on the part of the lessor to act conditioned on the performance by the lessee. It is a purely executory contract and at most confers a right to obtain a renewal if there is compliance with the conditions on which the right is made to depend. The right of renewal constitutes a part of the lessee's interest in the land and forms a substantial and integral part of the agreement.

The fact that such option is binding only on the lessor and can be exercised only by the lessee does not render it void for lack of mutuality. After all, the lessor is free to give or not to give the option to the lessee. And while the lessee has a right to elect whether to continue with the lease or not, once he exercises his option to continue and the lessor accepts, both parties are thereafter bound by the new lease agreement. Their rights and obligations become mutually fixed, and the lessee is entitled to retain possession of the property for the duration of the new lease, and the lessor may hold him liable for the rent therefor. The lessee cannot thereafter escape liability even if he should subsequently decide to abandon the premises. Mutuality obtains in such a contract and equality exists between the lessor and the lessee since they remain with the same faculties in respect to fulfillment.[48]."

Estoppel explained - G.R. No. 161718

2012-01-14T00:56:00.000+08:00

G.R. No. 161718

ESTOPPEL:

"Finally, petitioner cannot oppose the renewal of the lease because of estoppel. Our following disquisition in Kalalo v. Luz[55] is relevant herein:

Under Article 1431 of the Civil Code, in order that estoppel may apply the person, to whom representations have been made and who claims the estoppel in his favor must have relied or acted on such representations. Said article provides:

“Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon.”

An essential element of estoppel is that the person invoking it has been influenced and has relied on the representations or conduct of the person sought to be estopped, and this element is wanting in the instant case. In Cristobal vs. Gomez, this Court held that no estoppel based on a document can be invoked by one who has not been misled by the false statements contained therein. And in Republic of the Philippines vs. Garcia, et al., this Court ruled that there is no estoppel when the statement or action invoked as its basis did not mislead the adverse party. Estoppel has been characterized as harsh or odious, and not favored in law. When misapplied, estoppel becomes a most effective weapon to accomplish an injustice, inasmuch as it shuts a man's mouth from speaking the truth and debars the truth in a particular case. Estoppel cannot be sustained by mere argument or doubtful inference; it must be clearly proved in all its essential elements by clear, convincing and satisfactory evidence. No party should be precluded from making out his case according to its truth unless by force of some positive principle of law, and, consequently, estoppel in pais must be applied strictly and should not be enforced unless substantiated in every particular.

The essential elements of estoppel in pais may be considered in relation to the party sought to be estopped, and in relation to the party invoking the estoppel in his favor. As related to the party to be estopped, the essential elements are: (1) conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent, or at least expectation that his conduct shall be acted upon by, or at least influence, the other party; and (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as the facts in questions; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; (3) action or inaction based thereon of such character as to change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice.[56] (Emphases ours.)."

Flawed selection of and degraded Supreme Court

2012-01-13T23:50:00.000+08:00

Zamboanga Today Online, the most read newspaper in Zamboanga City | Flawed selection of and degraded Supreme Court

"x x x.

In the United States—the place I have now lived for over 39 years, the abode that gave me opportunity to major in Religious Studies vice Law—the selection of justices of the Supreme Court significantly differs. This difference somehow supports creation of independence and credible thinking that renders power and stature to the Court as co-equal to the other two branches in the ideal tradition of check-and-balance system.

Here, more than one body can submit nominees; Congress, the Justice Department, the Court system and any organization can submit same. From all these nominees and after tedious vetting processes, the President makes an appointment. But thisappointment is not the end but the beginning of another difficult process for the appointee. Under the US Constitution, the Senate has the authority to consent to or to disapprove the appointee of the President. The appointee’s professional credentials and qualification, ideological compatibility, and philosophical persuasions are checked, discussed, debated, and finally decided by the full Senate.

As I see, the process of selecting Supreme Court justices in the United States is superior over that in the Philippines. Again, the process here provides attribute of independence to the Supreme Court as its members are beholden not only to the President elected by the people but also beholden to the Congress voted by the citizenry—and ultimately beholden to the citizenry who selected the occupants of the Presidency and Congress. I find this as the core substance of the democratic check-and-balance system, when all three branches of government, as co-equal, perform watchdog duties upon each other on behalf of the citizenry they are beholden to and they are to serve.

May this commentary stir some political minds, create basis to change law— so that the Judiciary becomes truly responsible and responsive to the Constitution and to the people of the Philippines.

x x x."

Judicial pork barrel?

2012-01-13T23:06:00.000+08:00

WB, ADB, and USAID give millions of grants, aid, and/or loans to the Philippine Supreme Court to push the latter's JUDICIAL REFORM PROGRAM , that is, to improve "Access To Justice" by the poor and the oppressed, improve the "Case Management Systems and Procedures" of more than 2,000 trial courts, and to "Promote the Rule of Law". Not to fund the JUNKETS of Supreme Court justices and their court officials and personnel. Read the news article below. WB is complaining, perhaps after auditing its issued funds to the SC. Ordinary citizens in poverty-infested Manila street corners would, in a vulgar and derogatory but sincere and commonsensical manner, readily categorize such a shameful and distasteful phenomenon as BANTAY SALAKAY, partaking of the de facto nature of JUDICIAL PORK BARREL, if not outright and criminal MALVERSATION OF PUBLIC FUNDS). As a member of the Philippine Bar (i.e., in theory, as an "officer of the court"), as a local Bar leader, as a former law professor of FEU, and as a Filipino citizen, I am bound to defend the image of the Judiciary. But, sad to say, my CONSCIENCE, in this instance, feels a deep sorrow for our Justice System and a revolting loss of respect for the jurists who are bound by the Constitution to preserve it. All with due respect, Supreme Court.

See: http://www.abs-cbnnews.com/nation/01/13/12/wb-questions-alleged-supreme-court-loan-misuse

- Atty. Manuel J. Laserna Jr.

US Supreme Court ruling for Pinoy could slow down massive deportation - InterAksyon.com

2012-01-09T08:30:00.000+08:00

US Supreme Court ruling for Pinoy could slow down massive deportation - InterAksyon.com

"x x x.

CHICAGO -- A decision by the United States Supreme Court last month, staying the deportation of a Filipino immigrant convicted of voluntary manslaughter, could slow down the deportation of nearly 393,000 people in the fiscal year that ended Sept. 30, half of whom were considered criminals.

Joel Judulang, 45, of Los Angeles, California, was ordered released from detention by a unanimous decision last Dec. 12 of the Supreme Court penned by Justice Elena Kagan, describing the new policy of the government’s Board of Immigration Appeals “as arbitrary and capricious on its own merits, even apart from retroactivity concerns.”

Judulang was born in the Philippines and was brought to the United States in 1974 at the age of eight. He had continuously resided in the US for 36 years. His grandfather served in the US military in the Philippines between 1923 and 1948 and became a US citizen.

His parents were also naturalized. He has a 15-year-old daughter, who is a native-born US citizen, as are his four nephews and two nieces, and his two sisters and an older brother, who is also lawful permanent resident, like himself.

His parents did not apply him for naturalization because “they did not know the intricacies of immigration law.”

In 1988, when Judulang was 22, he was involved in a fight in which another person shot and killed someone. Judulang was not the shooter and he was charged as an accessory. Because of his minor involvement and cooperation with authorities, he was allowed to plead to voluntary manslaughter and received a six-year suspended sentence. He served fewer than two years in county jail and was released on probation immediately after his plea.

Aggravated felony crime of violence

In 2005, the government initiated deportation proceedings against Judulang based on his conviction for voluntary manslaughter described by the government’s Immigration Judge as “aggravated felony crime of violence.”

The IJ informed Judulang that “Section 212(c)(c)” of the Immigration and Nationality Act “could have been applied to your manslaughter conviction,” but his six-year suspended sentence disqualified him from relief, such that he was unable to submit an application.

The former section 212(c) of the Act provides that an alien lawfully admitted for permanent residence who temporarily goes abroad voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States at the discretion of the Attorney General.

But his lawyers told the Supreme Court that the IJ’s ruling “was doubly wrong.” The bar on Section 212 (c) relief for LPRs (lawful permanent residents), who served a “term of imprisonment of at least five years” was added in 1990 and does not apply to Judulang’s 1989 conviction. And even if it did, the 1990 Act refers only to time served, and Judulang served fewer than two years. Although the IJ found Judulang deportable for a second conviction, neither the BIA (Board of Immigration Appeals) nor the Ninth Circuit (Court in San Francisco, California) relied on that theory and it is not before the Court.

The Ninth Circuit denied Judulang’s petition for review and denied rehearing. Justice Anthony Kennedy granted a stay of judgment pending review, allowing Judulang’s release from custody on bond pending appeal. He now lives in Los Angeles with his elderly mother, a U.S. citizen, and works to support himself and his family.

In its ruling, the Supreme Court said, the Ninth Circuit’s approach offers no basis for affirming the judgment below.

Improper retroactive change

First, the previous holding in the case represents an improperly retroactive change in BIA’s preexisting policies. “The change is too abrupt; the reliance on the old regime is too significant; the effect on private interests is too severe; and any statutory interest in retroactivity is attenuated at best.”

Second, the BIA’s new policy is arbitrary and capricious on its own merits, even apart from retroactivity concerns. The BIA has made eligibility for Section 212(c) relief turn on semantic differences in the exclusion and deportation provisions — differences that have no connection whatsoever to congressional intent regarding eligibility for Section 212(c) relief. And they resurrect a distinction based on the “irrelevant and fortuitous factor” of a deportable LPR’s recent travel history — a distinction the agency has avoided for decades. And

Third, the distinction among deportable LPRs based on “travel history violates equal protection or, at a minimum, raises serious equal protection concerns. There is no rational basis for distinguishing between.” The ruling said if Section 212(c) relief waives exclusion based on particular criminal conviction, it also waives deportation based on the same conviction.

It added that if a single act can be the basis of both excludability and deportability, and excludability is waived by the Attorney General, “then the act, without more, cannot be the basis of a deportation charge.”

Judulang never left US for 36 years

It also emphasized that if an LPR would have been eligible for relief had he or she left the country and been placed in exclusion proceedings upon return, according to Sec. 212(c), then, there was no legitimate reason to treat the LPR as ineligible simply because he or she failed to depart before the proceedings had begun. Judulang has lived all his 36 years in the USand has never left.

Until repealed in 1996, Section 212(c) let the Attorney General grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporary leaving the country and if the alien was not excludable on one of two specified grounds.

An alien seeking entry into the US (whether for the first time or upon return from a trip abroad) is placed on an “exclusion proceedings” while an alien already in the US is placed on “deportation proceedings.”

Although crimes involving moral turpitude (CIMT) encompass so many offenses, like theft, fraud, larceny, etc., they are considered excludable offenses that can be waived by the Attorney General while crimes such as first-degree sexual abuse of a child, murder and rape are considered “aggravated felonies” that are deportable offenses not listed under excludable or inadmissible offenses.

If the thousands of deportable aliens find out that their offenses would fall under the “excludable” offenses, they could always ask to stay their deportations by citing the Judulang ruling.

Of the 393,000 people arrested at the end of September, 27,635 had been arrested for drunken driving, which is not listed as a deportable offense.

Last year, 36,178 criminals were deported as a result of the Secure Communities program, now in place in more than 1,400 jurisdictions, up from 14 in 2008. It is expected to be in more than 3,000 jurisdictions nationally by 2013. "

raissa robles Realty broker: Corona’s posh condo “a steal” at P14 million

2012-01-09T07:04:00.000+08:00

raissa robles Realty broker: Corona’s posh condo “a steal” at P14 million

"X X X.

Realty broker: Corona’s posh condo
“a steal” at P14 million

January 7, 2012 · 166 Comments

Low taxes “unheard of” in the business, broker says

My Exclusive

By Raïssa Robles

Supreme Court Chief Justice Renato Corona may have been sold a luxury penthouse at a very special discounted price. He also may have enjoyed tax breaks on the same transaction, courtesy of the Bureau of Internal Revenue, sources separately confirmed to me.

What’s wrong with that, his friends and allies are likely to say. After all, it’s a business transaction done in his own private time.

Perhaps I’m being idealistic in my expectations of how a Chief Justice ought to behave. I recall my late lawyer-father – who used to teach Legal Ethics at the University of the Philippines College of Law – narrating how, in the US, when one lawyer was appointed Chief Justice of the US Federal Court, he took to dining alone or with his family in public. He was trying to avoid conflict of interest situations.

I’m sure nearly every lawyer is familiar with the saying: Caesar’s wife must be above reproach. In the case of Chief Justice Corona, did his personal transactions raise any conflict of interest issues? Did he get favorable treatment due to his position, or treatment that is not otherwise accorded ordinary citizens?

Did he violate Republic Act No. 6713 which imposes a Code of Conduct and Ethical Standards on all public officials and employees? Section 7 in particular states:

(d) Solicitation or acceptance of gifts. — Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office [underlining is mine].

Interestingly enough, Megaworld Corporation, which directly sold the condo to CJ Corona, has had legal suits before the Supreme Court while Corona sat as an Associate Justice.

I do recall it won several suits before the Supreme Court. I could not see Corona’s name being mentioned as having cast any vote for or against Megaworld in any of the suits.

The suits of Megaworld decided in the Supreme Court can be viewed by clicking on this link and this link.

UPDATE, January 8, 2011 at 7:47 P.M.: Threecommenters named “George”, Manuel Buencamino and “Josh” have just pointed out to me that I had actually provided a link to the Supreme Court website showing that Renato Corona had penned a decision in 2004 in favor of Megaworld. Looking back, I was thrown off by the phrase “Corona, J.”
My brain had quickly dismissed it because I was thinking it must be a different Corona since his first name starts with “R.” Now I realize that “J.” stands for “Justice”. Click on this link to read CJ Corona’s decision.

Megaworld has refused to comment on its transaction with CJ Corona. I tried to broach the subject with Megaworld Investment Information Officer John Hao. He said he was not allowed to speak on the issue. He told me the same thing he had told the newspapers:

The company has a privacy policy under which it is committed to maintain all client information in strictest confidence. Consistent with this commitment, the company does not, as a matter of policy, disclose information pertaining to the business dealings with its clients.

We shall comply with the official orders of the authority – if summoned – in a proper forum.

Apart from John Hao, I talked to an architect and two other sources who do not know each other and have had no dealings with CJ Corona. Both declined to be identified. One is a prominent realty broker who deals with upmarket properties in Metro Manila. I will call him Pedro. The other works in a well-known property research firm specializing in tracking high-end properties. I’ll call him Danny.

Both Pedro and Danny were amazed at the price at which CJ Corona obtained his penthouse in Bellagio Tower 1. And at how low the taxes that were imposed on this property.

Both said that if offered the same deal, they would grab it quickly.

Why the Bellagio condo “is a steal”

Bellagio 1 was completed in end 2008, according to Megaworld. Before completion, Pedro the realty broker recalled that penthouse units there were pre-selling at P80,000 to P85,000 per sq m. At that price alone, CJ Corona’s 303.5 sq m unit would have cost at least P24.28 million. Add to that P800,000 per parking slot (of which he bought three) and that would raise the cost to P26.68 million.

CJ Corona’s penthouse was still cheaper than the pre-selling price.

According to the Deed of Absolute Sale between CJ Corona and Megaworld, the transaction was sealed and notarized on December 16, 2009 – or way past the pre-selling period. After a building is finished, units automatically rise in price because there is no longer the risk of non-completion, explained Danny of the property research firm.

This means, Danny said, CJ Corona would have normally been charged a higher price than the pre-selling price. And yet, according to the Deed of Absolute Sale, he paid only P14.5 million for the penthouse and three parking slots of 12.5 sq m each.

This means he actually owns 341 sq m in Bellagio. This means he only paid P42,521.99 per sq m, both Pedro and Danny said after their calculations.

“It’s really a steal I tell you,” Pedro said.

Portion of the Deed of Absolute Sale shows the terms of sale

Danny of the property research firm then placed CJ Corona’s purchase in the context of the prevailing market. He said that as a research firm, they track only developments they consider “premium”, “Grade A” and “Grade B” in five areas: Bonifacio Global City (also called BGC or The Fort) where Bellagio 1 is located; the Makati Central Business District or CBD, the Ortigas CBD, Eastwood and Rockwell.

Danny said Bellagio 1 belongs to the highest or premium grade category because of its location, “exclusivity”, floor area per unit, amenities and finishing.

To give you an idea, here are photos from the Megaworld website showing the interior of a Bellagio III unit:

Residents share in the use of the following:

A 220 sq m swimming pool inclusive of the wading pool
Sandy beach pool and water feature
Aromatherm and SPA (male and female)
Aromatherm Electronic Capsule (4 in 1)
Hydrotherapy tub Steam
Vichy Shower Wet table
Heated Pool SPA in Glass Enclosure
Fitness gym
Music/piano function room, game room (billiards and table tennis)
Day care center and play area

Danny said that of the 41 residential buildings located at BGC or The Fort, only six are considered premium buildings: Bellagio 1, 2 and 3, Essensa, Pacific Plaza and Serendra.

Danny noted that as of end 2008 when Bellagio 1 was completed, the average price of a condo unit in the Bonifacio area ranged from a low of P88,000 per sq m to a high of P115,000 per sq m.

“And he (Corona) got it for around P40,000 (a year later). Anyone would be amazed…because it is a Bellagio,” Danny said.

To give me an idea of how grossly under-priced Corona’s unit was, Danny said that at that time that CJ Corona bought his unit, condo units made by developer DMCI Homes were then selling at P42,000 per sq m. – which is the price at which Corona bought his property. DMCI projects are not high-end and are located in the outskirts of Parañaque, Quezon City and Taguig – not in the heart of Bonifacio, he said.

This is how DMCI Homes describes its market in its own website:

DMCI Homes is the country’s first Triple A builder/developer of premium quality, urban-friendly, serviced communities for young growing families of modest incomethat aspire to live comfortably near their place of work, of study and of leisure.

Hmmm. Families “of modest income” would have been able to afford CJ Corona’s Bellagio condo if only they were given the same terms that Corona got from Megaworld.

But Danny said, “You can’t get a Bellagio being sold at P42,000 per sq m. It’s so undervalued.” Especially because Bellagio 1 was the only building completed in 2008 with units sized over 300 sq m. The usual unit sizes being built in 2008 ranged from 220 sq m to 230 sq m, Danny said. And that was what made the Bellagio penthouses – that CJ Corona got – quite attractive.

From a purely business” standpoint, Danny found it “quite suspicious” for a developer to sell a prime unit at a loss”without any strings attached. “Maybe Megaworld has ties with Corona. I don’t know,” Danny said.

Why was Corona’s condo purchase taxed so low?

Aside from the low purchase price, CJ Corona seems to have benefited in the transaction in the form of low taxes.

The law taxes the buying and selling of property. The law required CJ Corona, as the buyer, to pay to the Bureau of Internal Revenue (BIR) a Documentary Stamp Tax equivalent to 1.5% of either the Selling Price or the Market/Zonal Value, “whichever is higher.”

The law also required the seller, Megaworld, to pay BIR a “Withholding Tax” equivalent to 5% of the Selling Price or the Market/Zonal Value, “whichever is higher.”

After payment, the BIR issues to the buyer a document called the Certificate Authorizing Registration or CAR. This details how much taxes were paid for the transaction.

In the case of CJ Corona’s condo purchase, everything seemed aboveboard at first glance. The tax was based on the Selling Price of P14.5 million because this was higher than the “Market/Zonal Value” of this piece of property.

CJ Corona’s CAR showed that BIR Revenue Officer Gerry O. Dumayas calculated the Market/Zonal Value of CJ Corona’s property at P6,827,200.

Wait a minute, I thought: P6,827,200 (the Market/Zonal Value) divided by 341 sq m would only give a Market/Zonal Value of P20,021 per sq m.

I remembered what Pedro earlier told me. To get the Zonal Value of an area, go to theBIR website and click on Zonal Values (under Special Sites).

He recalled that around 2008 Zonal Value for upscale Bonifacio area, where Bellagio stands, was even then around P80,000 per sq m.

I had to go back to both Pedro and Danny to confirm if I did the calculations correctly – that the BIR gave CJ Corona’s property a Zonal Value of P20,021 per sq m. instead of somewhere around P80,000.

I asked both of them to do the calculations. They came up with the same finding. His property was indeed under-taxed.

“Assuming that is true, that (kind of tax rate) is unheard of” for the Bonifacio area, Pedro said.

“That happens in our industry,” he said.

What happens in your industry, I asked.

Pedro said: “You know, you want savings (on your taxes), you pay only half, you save 25%, the other 25%, you know….”

“That was what was happening in the BIR at least before. Now they’re stricter. I really respect (the current tax chief Kim) Henares,” he added.

I asked both Pedro and Danny to confirm the following – if we assume that the Market/Zonal Value for the Bonifacio area at the time of CJ Corona’s purchase was around P80,000 per sq m, that would mean his 341 sq m property would have a Zonal Value of P27.28 million.

Since P27.28 million is higher than the P14.5 million he paid for the property, the tax he paid should have been based on the Market/Zonal Value and not on the selling price because the Market/Zonal Value is higher, right?

Both Pedro and Danny said “Yes.”

Under the law, CJ Corona had to pay documentary stamp tax equivalent to 1.5% of the selling price or Market/Zonal Value, “whichever was higher”. The BIR document shows he paid P217,655 – or 1.5% of the selling price since this was higher than the Zonal Value given in the document.

However, if the BIR had used P80,0000 per sq m as the Zonal Value, that would have made the Zonal Value P27.28 million for CJ Corona’s property higher than the Selling Price. This would mean, the Zonal Value would have been used as basis for calculating the Doc Stamp Tax. This would mean, CJ Corona should have been charged P409,200 instead of P217,655 by the BIR.

The same understatements are true for the Withholding Tax paid for this transaction. Instead of the P725,511.25 that was paid, it should have been P1.364 million.

All in all, the BIR seemed to have waived P830,033.80 in potential tax revenues in this transaction alone – P191,545 from the buyer CJ Corona and P638,488.80 from the seller Megaworld.

I tried to reach BIR Revenue Officer Gerry O. Dumayas last Friday. All I got was the answering machine in his office. I must have phoned him five times. He wasn’t in his office or was not picking up the phone.

Perhaps someone higher up asked Dumayas to do it?

I also tried to reach Supreme Court Administrator Midas Marquez but he wasn’t picking up. Other reporters have asked him about CJ Corona’s condo. Marquez has defended him saying CJ Corona could well afford to buy a condo.

What CJ Corona has admitted so far

CJ Corona’s Bellagio penthouse is cited as part of the evidence to show his alleged “culpable violation of the Constitution” and “betrayal of pubic trust.” The accusation against him reads:

2.4. Respondent is likewise suspected and accused of having accumulated ill-gotten wealth, acquiring assets of high values and keeping bank accounts with huge deposits. It has been reported that Respondent has, among others, a 300-sq. meter apartment in a posh Mega World Property development at the Fort in Taguig.

CJ Corona recently submitted his reply to the Senate. He denied the allegation it was ill-gotten. But he admitted owning it. He said:

Finally, Complainants allege in par. 2.4 that “reports” state CJ Corona acquired a 300-sq. m. apartment in the Fort, Taguig. Complainants speculate that he has not reported this in his SALN and that its price is beyond his income as a public official. CJ Corona admits that he and his wife purchased on installment a 300-sq. m. apartment in Taguiog, declared in his SALN when they acquired it.

From this statement, it is very clear that Corona claims he did not pay for the condo in lumpsum but “on installment”.

Pedro the realty broker told me Corona could easily prove what he said by presenting a document called the “Contract to Sell”. This is normally notarized in order to protect the buyer while paying on installment since the Condominium Certifcate of Title remains with the seller until everything is paid. The Contract to Sell states the installment terms and interest rate.

I haven’t seen any Contract to Sell. I don’t know if one exists. Only Corona or Megaworld or the notary public can produce it.

What I obtained from a source I can’t name is the Deed of Absolute Sale showing that the Corona couple paid in full for 38-B in Bellagio Tower 1, facing the Manila Golf and Country Club; as well as three basement parking slots of 12.5 sq m each.

You can view the Deed of Absolute Sale below, after the video.

To get an idea of how exclusive this property is, watch the video below on its triplet tower, Bellagio III:

DEED OF ABSOLUTE SALE for Bellagio 1, page one

DEED OF ABSOLUTE SALE for Bellagio 1, page two

CERTIFICATE AUTHORIZING REGISTRATION, BIR

CONDOMINIUM CERTIFICATE OF TITLE -CJ CORONA’S CONDO at Bellagio Tower 1, 38th floor

CONDOMINIUM CERTIFICATE OF TITLE – parking slot 1

CONDOMINIUM CERTIFICATE OF TITLE – parking slot 2

CONDOMINIUM CERTIFICATE OF TITLE – parking slot 3

x x x."

U.S. Supreme Court ruling for Pinoy could slow down massive deportation - ZamboTimes Online

2012-01-09T06:56:00.000+08:00

U.S. Supreme Court ruling for Pinoy could slow down massive deportation - ZamboTimes Online

"x x x.

CHICAGO — A decision by the United States Supreme Court last month, staying the deportation of a Filipino immigrant convicted of voluntary manslaughter, could slow down the deportation of nearly 393,000 people in the fiscal year that ended Sept. 30, half of whom were considered criminals.

Judulang was born in the Philippines and was brought to the United States in 1974 at the age of eight. He had continuously resided in the U.S. for 36 years. His grandfather served in the U.S. military in the Philippines between 1923 and 1948 and became a U.S. citizen.

His parents were also naturalized. He has a 15-year-old daughter, who is a native-born U.S. citizen, as are his four nephews and two nieces, and his two sisters and an older brother, who is also lawful permanent resident, like himself.

His parents did not apply him for naturalization because “they did not know the intricacies of immigration law.”

AGGRAVATED FELONY CRIME OF VIOLENCE

In its ruling, the Supreme Court said, the Ninth Circuit’s approach offers no basis for affirming the judgment below.

IMPROPER RETROACTIVE CHANGE

JUDULANG NEVER LEFT U.S. FOR 36 YEARS

An alien seeking entry into the U.S. (whether for the first time or upon return from a trip abroad) is placed on an “exclusion proceedings” while an alien already in the U.S. is placed on “deportation proceedings.”

If the thousands of deportable aliens find out that their offenses would fall under the “excludable” offenses, they could always ask to stay their deportations by citing the Judulang ruling.

Of the 393,000 people arrested at the end of September, 27,635 had been arrested for drunken driving, which is not listed as a deportable offense.

More political than legal | Inquirer Opinion

2012-01-09T06:37:00.000+08:00

More political than legal | Inquirer Opinion

"x x x.

Many commentators and analysts believe and profess that impeachment is a legal and judicial matter decided mainly by strict legalisms. By its nature however, impeachment belongs more to the people than to lawyers; more to public wisdom than to legalisms. An impeachment proceeding is sui generis; has its own unique genre, and is equal to no other.

Non-judicial tribunals. True, the Constitution lays down the parameters of impeachment in unmistakable legal language. True also, it limits impeachment only to the highest officials who cannot be reached by the ordinary methods of public discipline. In similarly unmistakable legalese, it provides the grounds for and the general procedure by which impeachment cases are to be initiated, tried and decided; thereby giving the false impression that impeachment is the lawyers’ domain.

Note, however, the Constitution lodged the power to initiate and to decide impeachment cases in non-judicial tribunals composed mostly of non-lawyers and non-jurists; impeachment is exclusively initiated by the House of Representatives, not by regular prosecution agencies, like the Department of Justice and the Office of the Ombudsman. It is solely tried and decided by the Senate, not by courts of justice.

If impeachment were mainly a legal matter, then the power to try and decide should have been granted to the Supreme Court. Or to some other body composed of jurists or lawyers who must not only be trained in the labyrinths of law for at least 15 years but also—to quote the Constitution—be “person(s) of proven competence, integrity, probity and independence,” qualities required of Supreme Court justices.

Litmus test. To stress, the power to initiate impeachment cases has been given to the House of Representatives, while the power to try and to decide has been granted to the Senate. Both bodies are composed mostly of humans who—despite their varied education, calling and social status—had been chosen by our people to be their alter egos to enact laws and to oust high officials who have become unworthy of their trust.

Legislators are thus expected to discharge their duties as our people’s trustees, not as pseudo-lawyers. When they initiate or decide impeachment cases, they carry the public weal first and foremost. They look at impeachment cases not through the prism of strict legalism (which many of them do not and are not required to possess), but through democratic lenses that our people expect them to have.

In the end, the litmus test of an impeachment is policy-oriented: will the people and the nation be better served by retaining or by ousting impeached officials? Reason and logic, emotion and passion there will be, but the decision of the people’s alter egos will always be justified by their sense of what is advantageous and beneficial to the country. They bear the people’s aspirations and ambitions; their pains and frustrations; their sense of right and wrong. And they will act according to that innate sense of right and wrong.

In short, impeachment may be legal in its processes but it is political in its substance; it may show a veneer of technicalities but it has an imbedded core of public wisdom. It may be coached in hifalutin’ legalisms, but its essence is encapsulated in simple common sense.

Three examples. Let me give three examples to show that impeachment belongs to the people, not to lawyers. First, unlike judicial trials, impeachment hearings are open to mass media, particularly to livetelevision and radio coverage. The search for truth is wider and the rules in obtaining and appreciating evidence are more liberal.

Because of this openness, people inevitably become an integral part of an impeachment trial. The people’s evaluation of what they see and hear during the trial solidifies into public opinion that is caught by poll surveys.

Inevitably, the people ingest this public sense of an impeachment trial. When the search for truth is blocked by incomprehensible legalities or technicalities, our people feel shortchanged and tend to settle the dispute with the power of crowds. This was what happened when the Senate refused, on technical grounds, to open the second envelope during the impeachment trial of former President Joseph Estrada.

Second, because also of the public nature of impeachment, the private life of impeached officials is opened to searching public scrutiny. The scrutiny extends to their spouses, children, parents and siblings, whose lives are minutely combed for hidden faults, filth and grime. Internet, texts, tweets and other social media become purveyors of supposed wrongdoings.

To protect her loved ones, Merceditas Gutierrez—after repeatedly ruling out capitulation—resigned as ombudsman before her Senate trial began, to spare herself and her family of the infamy of media scrutiny.

Third, the impeachment of Chief Justice Hilario G. Davide Jr. was blocked by a Supreme Court decision barring the House of Representatives from transmitting its impeachment complaint to the Senate. The House, after some hesitancy, blinked and retreated. There was no public upheaval over this legal block because Chief Justice Davide—still glowing from his stellar performance in the Estrada impeachment trial—was perceived by our people as their most trusted official. Moreover, the Supreme Court enjoyed very highpublic approval ratings, much higher than the House.

This capitulation buttresses the thesis that impeachment is a political, more than a legal, exercise.

(Comments to chiefjusticepanganiban@hotmail.com)."

Between law and politics | Inquirer Opinion

2012-01-09T06:32:00.000+08:00

Between law and politics | Inquirer Opinion

"x x x.

Although it takes on the trappings of a courtroom trial, impeachment remains a distinctly political process. Acts that may be the subject of impeachment are not always punishable as criminal offenses. US President Andrew Johnson was impeached (unsuccessfully) over policy differences with Congress. In contrast, federal judge Harry Claiborne was first convicted by a criminal court for tax evasion, and was already in jail, before he was removed by impeachment for bringing disrepute to the judiciary.

Unlike passive jurors in a courtroom, senator-judges can ask questions during an impeachment trial. By a majority vote, they can overturn a ruling of the presiding officer. They are not required to insulate themselves from public opinion. In the United States, from which many of our procedures are borrowed, they are not even barred from publicly discussing the case. Most important, unlike in a court of law, senator-judges are not required to determine guilt “beyond reasonable doubt.”

But, to say that impeachment is a political process does not at all mean that it may be conducted without regard for generally accepted rules of evidence. The entire process must manifest fairness for it to be seen as legitimate. What this means is that the senator-judges must be able to offer not just an adequate justification for their final decision but also a credible account of the conduct of the whole trial itself.

The framers of the US Constitution were fully aware of the risks entailed when politicians play the role of judges. Alexander Hamilton wrote: “There will always be the greatest danger that the decision [to impeach] will be regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt.” (Cited in Lindorff and Olshanksky, The case for impeachment, 2006) This fear was confirmed during the impeachment of President Bill Clinton in 1998-1999 for perjury and obstruction of justice arising from the Lewinsky sex scandal. All 45 Republican senators voted to convict him, but not one Democrat joined them. In a divided US Senate consisting of 100 members, those numbers were not enough to strip Clinton of the presidency.

The requirement of a two-thirds super-majority to convict is not easy to meet. It is probably the most important safeguard against the danger of impeachment being used for narrow partisan ends. Of course, the trial itself could be so bruising that, for some officials facing impeachment, resignation might be the better part of valor. This is how Richard Nixon saw it when he gave up the presidency in 1974 in the wake of damaging revelations concerning the Watergate scandal. His resignation came before the House judiciary committee could submit its report.

Whether impeached Chief Justice Renato Corona will step down from the high court even before the trial begins, or will opt to go through the rigors of a trial, is the question everyone is asking. The prosecution is angling for a resignation, as one may glean from the way it is publicizing its evidence ahead of the trial. Corona, on the other hand, has said he is ready to face his accusers and prove his innocence. But behind all this posturing is the reality that in the end the matter will be settled by a simple headcount. The prosecution needs the support of at least 16 senator-judges to secure a conviction. That means even if only a minority of eight chooses to acquit him, Corona will remain chief justice. There is no higher body to which the decision can be appealed. That is the law.

Politics and law interweave with one another in the most unpredictable ways, even as they remain separate and autonomous systems. Politics provides the means by which society makes collectively-binding decisions. And one such decision is the removal of top officials who have betrayed the public trust. On the other hand, the purpose of law is to stabilize people’s expectations of what is permissible and what is not. Though political in nature, the power to impeach is regulated by law.

Does this mean that the courts may intervene when there are disagreements on the meaning of impeachment rules and procedures? The urge to do so is always there. But the unspoken rule is that they must not, in deference to the separation of powers."

Farmers join manhunt for Palparan | Inquirer News

2012-01-07T04:47:00.000+08:00

Farmers join manhunt for Palparan | Inquirer News

"x x x.

Flushing out Palparan

Private prosecutors said on Friday that the government’s doubling of the bounty on Palparan would help flush him out of his hiding place and make it difficult for him to find coddlers.

In a statement, the National Union of People’s Lawyers (NUPL) said that while the increase of the bounty from P500,000 to P1 million would encourage the public to join in the hunt for Palparan, the government should further intensify its efforts to capture the fugitive retired general.

“We support it (increase of the bounty). In fact, we thought the original bounty may not have been commensurate an incentive to others given the seriousness of the charges, the import of the case to pursue accountability for human rights violations, his network of protection and connections, his unmatched notoriety for lack of remorse, and his evident dogged incorrigibility to evade facing the music,” NUPL secretary-general Edre Olalia said in a statement.

“We challenge the government to step up even more the manhunt and leave no stone unturned to hale him before the bar of justice. He cannot possibly hide and run ’til kingdom come,” he added. With a report from Carmela Reyes-Estrope, Inquirer Central Luzon, and Jerome Aning in Manila"

Small-scale miners choose to live in valley of death | Inquirer News

2012-01-07T04:46:00.000+08:00

Small-scale miners choose to live in valley of death | Inquirer News

"x x x.

Social issue

“It’s a social issue,” Jasareno noted.

The settlers in Pantukan are mostly subsistence miners, the Department of Environment and Natural Resources (DENR) said.

According to Jasareno, a miner could earn between P2,000 and P2,500 per gram of gold. One miner could find as much as 10 grams of gold in a day’s work, he said.

“The area continues to act as a magnet to as many as 200,000 individuals during a gold rush,” Environment Secretary Ramon Paje said.

Jasareno said the gold mines in Pantukan were illegal and did not have the permits from the local and national governments.

After a side of the mountain collapsed last year, the provincial government issued an ordinance banning small-scale mining and paving the way for Minahang Bayan, a cooperative-run operation. The local government gave the miners a year to leave or form into a Minahang Bayan.

x x x."

Chief Justice Corona declared SALN P15M in 1992, P14M in 2002 | Inquirer News

2012-01-07T04:43:00.000+08:00

Corona declared SALN P15M in 1992, P14M in 2002 | Inquirer News

"x x x.

Chief Justice Renato Corona was worth P14.9 million when he joined the Ramos administration in 1992 and was worth about P1 million less when he left the executive branch under former President Gloria Macapagal-Arroyo to join the Supreme Court in 2002.

This can be gleaned from two statements of assets, liabilities and net worth (SALN) that Corona filed on July 22, 1992, shortly after then President Fidel Ramos appointed him assistant executive secretary for legal affairs, and on April 8, 2002, the day before Arroyo appointed him to the high court.

Closer to the present, Supreme Court Senior Associate Justice Antonio Carpio and Associate Justice Maria Lourdes Sereno came in for praise from Malacañang on Friday for making public their SALNs.

“The cause of justice can have no sturdier shield than the integrity of those who are tasked with discharging it. The decision of Associate Justices Antonio Carpio and Maria Lourdes Sereno to release the summaries of their (SALNs) upon the request of concerned citizens is commendable to the highest degree,” presidential spokesperson Edwin Lacierda said at a news briefing.

Carpio was Corona’s closest rival for the position of Chief Justice when Reynato Puno retired in 2010. Sereno was President Aquino’s first appointee to the high tribunal.

Corona was Arroyo’s presidential adviser and chief of staff before the then President appointed him to the Supreme Court as an associate justice.

The documents, given to the Inquirer by a source privy to the evidence of the House prosecution panel in Corona’s impeachment trial, showed that Corona declared a net worth of P14,968,000 in his SALN after entering the government in 1992.

Ten years later in 2002, he declared a net worth of P13,968,000.

He bought a condo?

The House prosecution panel recently revealed that Corona bought a condominium unit worth more than P14.5 million in 2009. The property is said to be worth between P30 million and P40 million now.

The House prosecutors claimed that the Bellagio property was one of four pieces of high-end real estate that Corona and his wife own.

Documents showing Corona’s ownership of the 303.5-square-meter Bellagio unit may be used as evidence of Corona’s alleged corruption during his impeachment trial set to start at the Senate on Jan. 16.

Corona has been in government since 1992. He was also a member of Arroyo’s staff at the Office of the Vice President during the Estrada administration in the intervening years between the Ramos and Arroyo administrations.

Detailed SALNs

In the SALNs filed in 1992 and 2002 when he was still with the executive branch, Corona declared his residence on No. 95 Xavierville Avenue, Loyola Heights, Quezon City.

In 1992 he declared pieces of real property worth a total of P9 million. These include a lot in Quezon City with a fair market value then of P5 million; a house, P2 million; and another lot in Marikina, P2 million.

His personal assets that year were worth a total of P6 million. These included an unspecified number of motor vehicles from “various years” worth P1 million; cash and investments, P4 million; and jewelry “accumulated over the years,” P1 million.

Corona’s liabilities in 1992 consisted of an undetailed set of car financing loans worth P300,000.

In his 2002 SALN as presidential adviser and chief of staff, Corona declared owning real property worth P10 million.

He still declared the Quezon City properties worth P5 million and P2 million. Instead of a Marikina lot, Corona declared one in Quezon City worth P3 million.

In the same year, Corona declared personal assets worth a total of P4.8 million. These included an unspecified number of cars from various years’ worth P1 million; cash and investments, P2.7 million and jewelry, P1 million.

Corona declared various loans as his liabilities worth a total of P1 million that year.

The 1992 SALN appears to have been subscribed and sworn to before a certain Vicente Galang, with the rank of director IV, on Aug. 4, 1992.

The 2002 SALN appears to have been notarized by lawyer Susana Vargas, deputy executive secretary for finance and administration in the executive branch.

Relatives in gov’t

In 1992, Corona declared his other relatives in government as brother Ruben, a manager at the National Home Mortgage Finance Corp. (NHMFC); brother Arturo, a director at the Philippine National Oil Co.; first cousin Benedicto Corona, a lieutenant colonel with the Philippine Marines; and cousin Purita Inumerable, an employee at the municipal government of Tanauan, Batangas province.

He declared as a business interest the corporation, Basa-Guidote Enterprises, owned by the family of his wife, Cristina.

In 2002, he only declared as relatives in government his brother Ruben, vice president at the NHMFC, and cousin, Benedicto, a Marine colonel.

There was no longer a business interest declared.

Lacierda, who challenged Corona to disclose his SALN supposedly to show that he could afford to pay for a luxury condominium unit in Taguig City, called on other members of the judiciary to disclose their SALNs as well.

“A judge with nothing to hide is a judge with nothing to fear. Officials who serve the people with fidelity have everything to gain, and nothing to lose, from embracing transparency and accountability,” he said.

“While there are those who prefer to hide, and who shun our people, the executive department believes that demonstrating faith in the Filipino is the surest and best way to obtain, and retain, public confidence,” Lacierda said.

“We call on the judiciary to join the legislature and the executive in making the disclosure of SALNs a routine reality … because the executive and the legislature have already been issuing their SALNs in accordance with the Saguisag Law so perhaps it’s about time the judiciary also comes up with the SALN,” he said.

x x x."

Abalos lawyer faces jail time | Inquirer News

2012-01-07T04:36:00.000+08:00

Abalos lawyer faces jail time | Inquirer News

"x x x.

A legal researcher in Mupas’ court, Felda Domingo, said Mupas decided that the statements Abalos and Dulay made at a December 16 hearing—during which they filed a motion for inhibition against the judge—were “malicious, offensive and insulting not only to the integrity of the court but also the judiciary” and were made in a “scandalous and embarrassing manner.”

In their motion for inhibition, Abalos and Dulay had accused Mupas of sending two emissaries to Abalos to offer him a favorable ruling in exchange for P100 million, Domingo said.

But Abalos’ camp failed to substantiate the extortion attempt when they were given the chance to do so, Domingo said.

In his resolution, Mupas also asked the National Bureau of Investigation and Criminal Investigation and Detection Group to investigate Abalos’ extortion story. He gave the two agencies 30 days to submit a report.

The motion for inhibition against Mupas has yet to be resolved. The next hearing on the electoral sabotage case against Abalos and Arroyo has been set for January 9."

Small-scale miners in 30 provinces account for 70% of mined gold - MGB - InterAksyon.com

2012-01-07T04:33:00.000+08:00

Small-scale miners in 30 provinces account for 70% of mined gold - MGB - InterAksyon.com

"x x x.

Jasareno admitted it is difficult to regulate small-scale mining because provincial governors are authorized to issue permits but local governments often lack the expertise to monitor mining activities.

Aside from this, he said small-scale miners also exploit the vagueness of the two existing laws that concern the industry.

Presidential Decree 1899, issued in 1984, allows individuals to apply for mining permits while imposing very little requirements.

In contrast, 1991’s Republic Act 7076 raises the requirements and authorizes the MGB to designate so-called “minahang bayan” in places not prone to landslides and floods. The law also favors mining cooperatives, which are easier to regulate.

However, because it is only “implied” that the more recent law repeals PD 1899, the old law is still used by miners to apply for permits.

Despite an opinion issued by Justice Secretary Leila de Lima in June 2011 that RA 7076 has superseded PD1899, not much can be done unless Congress amends the law or a case is brought before the Supreme Court to clarify the matter.

x x x."

For lawyers: Middle-Aged Brains Are Already Past Their Prime : Shots - Health Blog : NPR

2012-01-07T04:24:00.000+08:00

Middle-Aged Brains Are Already Past Their Prime : Shots - Health Blog : NPR

"x x x.

ou may want to read this twice if you're older than 45. In fact, you may have to.

That's because your mental abilities are already in decline, according to a study of 7,390 British civil servants just published in BMJ, the British Medical Journal.

For men and women who were between 45 and 49 when first tested, the ability to reason declined 3.6 percent over the next decade, the study found. And the decline was even faster for people in their 50s and 60s, especially men.

Other mental abilities that faded included memory, and so-called verbal fluency, which measures a person's ability to quickly say words in a particular category. However, people's vocabulary didn't change.

Previous studies have found little evidence of cognitive decline until people turn 60. But this study was larger than most earlier efforts and took the unusual step of testing each participant three times over 10 years.

The results suggest that efforts to head off mental problems late in life need to begin in middle age, the study's authors write at the end of their paper. These efforts should include "aggressive control" of problems such as diabetes, high cholesterol, and high blood pressure, which are linked to dementia and Alzheimer's disease, they say.

x x x."

Lawyer of the Day: Alleged Death Threats Put Attorney on Ice « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts

2012-01-07T04:16:00.000+08:00

Lawyer of the Day: Alleged Death Threats Put Attorney on Ice « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts

"x x x.

Here at Above the Law, we know a thing or two about how lawyers should deal with the police. Incidentally, we also know how lawyers should not deal with law enforcement officers. And if you truly value your job as an attorney, it’s best not to mouth off to the cops, or to threaten them in any way, shape, or form.

But Courtney King, a rather attractive attorney with Ice Miller , apparently didn’t get the memo. Last week, after allegedly downing a few too many shots of liquid courage, King got into a stand off with police that may have iced her nascent legal career….

Just before New Year’s Eve, King, a 30-year-old, 2010 graduate of the University of Louisville School of Law, returned to Kentucky. We may never know why King was at a bar in wee hours of the morning in the middle of the work week, but we do know that she will probably regret what happened for a long, long time. WDRB News reports the allegations:

Courtney R. King

Louisville Metro Police say they arrested a woman outside of Phoenix Hill Tavern who claimed to be a lawyer and verbally threatened police. …
According to the arrest report, King allegedly told police, “You are going to… die. I’m a lawyer. You can Google me. You are dead. I work at a law firm in Indianapolis.”

Alas, it seems like the only thing that died was King’s upward mobility in Biglaw. She was arrested and charged with alcohol intoxication, assault, disorderly conduct, resisting arrest, and terroristic threatening.

Here’s King in her mug shot, not looking so glamorous:

'You can Google me' - and pull up this mugshot.

As of December 26, 2011, shortly before the incident in question, King was an associate in Ice Miller’s Labor and Employment Group. Today, her bio is nowhere to be found on the firm’s website.

According to comments by King’s counsel, Alex Dathorne , the young lawyer has pleaded not guilty and has not been terminated by her firm (only placed on possible probation). But whether or not King made death threats to the police, this isn’t such hot publicity for Ice Miller, and they really can’t be blamed for freezing her out of the firm website.

Besides, did King really think that, as a new associate, she could get the firm to kill for her? They only do that for partners.

P.S. On the following page, we’ve reprinted Courtney King’s former Ice Miller website profile (which used to reside here , but is now gone; click on the image to enlarge it)."

Judges slam House panel for CJ 'trial by publicity' - The Philippine Star » News » Headlines

2012-01-07T04:13:00.000+08:00

Judges slam House panel for CJ 'trial by publicity' - The Philippine Star » News » Headlines

"x x x.

MANILA, Philippines - Prosecutors of the House of Representatives were accused yesterday of resorting to “trial by publicity” in making public documentary evidence in the impeachment trial of Chief Justice Renato Corona.

Cagayan de Oro City Judge Cesar Merlas, Metropolitan and City Judges Association of the Philippines (MetCJAP) president, said the move to expose documents showing Corona owns a 300-square meter apartment in Bonifacio Global City in Taguig could undermine the independence of the Senate impeachment court.

“Making public the Chief Justice’s alleged acquired properties ahead of the scheduled pre-trial and/or trial before the Senate is certainly foul,” he said.

Merlas said the MetCJAP would call on senators to take the necessary action against the prosecution team led by Iloilo Rep. Niel Tupas Jr.

“The prosecutors should come to the impeachment court with clean hands,” he said.

Corona’s purported ownership of a house in La Vista subdivision in Quezon City, another in Loyola Heights in Quezon City, a condominium in Makati and another one in Bonifacio Ridge in Fort Bonifacio, Taguig was also bared in the House.

MetCJAP said the impeachment of Corona is an attack on the judiciary as an institution.

Last month, judges held a “court holiday” to protest Corona’s impeachment.

Retired Supreme Court justice Serafin Cuevas, Corona’s lead counsel, said the prosecution has yet to show evidence that Corona had acquired the questioned apartment through illegal means.

The new allegations against Corona would not stand in the impeachment trial, he added.

The rules of procedures provide that the prosecution cannot present evidence or new allegations in the complaint, Cuevas said.

Last Dec. 12, the House alleged that the property could have come from ill-gotten wealth, but has yet to present proof.

In his answer last Dec. 26, Corona said: “Complainants speculate that he (Corona) has not reported this in his SALN (Statement of Assets, Liabilities and Net Worth) and that its price is beyond his income as a public official. CJ Corona admits that he and his wife purchased on installment a 300-square meter apartment in Taguig, declared in his SALN when they acquired it.”

x x x."

House prosecutors to obey Senate 'gag rule' - The Philippine Star » News » Headlines

2012-01-07T03:55:00.000+08:00

House prosecutors to obey Senate 'gag rule' - The Philippine Star » News » Headlines

"x x x.

“We agreed that we are now bound by the Senate’s rules on impeachment trials, including the so-called gag rule. We intend to strictly follow them. There was no intention on our part to break them,” he said.

Responding to questions, Angara said there is no conflict between his statement and that of chief spokesman Marikina Rep. Miro Quimbo, who on Thursday said they would continue to dish out information about the process to oust Corona.

“The rules prohibit public discussion of the merits and demerits of the impeachment charges, including evidence. We will determine what information is not covered by the prohibition. That is what we can share with the public,” he said.

x x x."

OPINION: Corona's impeachment and the power of scrutiny - InterAksyon.com

2012-01-07T03:54:00.000+08:00

OPINION: Corona's impeachment and the power of scrutiny - InterAksyon.com

"x x x.

The process of impeachment recognizes a very fundamental problem in a democracy and provides a drastic relief. The problem is the adamant stand of a tenured but erring high public official to remain in his position in an important branch of government. There is resistance. The legal relief is a decree from the Senate removing him from his high position. He is likewise barred from ever holding any public office, no matter how insignificant. To the ousted, the emotional denoument is disgrace and humiliation. There can be no spin of a moral victory against partisan voting. It is simply total defeat.

What attracts people to the Corona impeachment is that the respondent is the Chief Justice of the Supreme Court, a public official who is supposed to do justice but is accused of doing the opposite. Magistrates have traditionally been considered as learned people who should be regarded with high esteem. Unlike political officials, a Justice's performance of his official decision-making duties is cloaked in secrecy. Nevertheless, at least here in the Philippines, even the intellectual elite rarely criticize them as their reputation for eruditeness and honesty seem to precede them.

There is a tendency to treat these public officials as immune from criticisms and incrimination. Our laws even provide that, in the event a judge's decision turns out to have legally violated the constitutional rights of a citizen, he cannot be held liable for damages, unless his acts can be proven to be criminal in nature.

But Justices of the Supreme Court are still public officials who must be held accountable for their actions. In the United States, criticisms of a Justice's official views/decisions and even personal lives have been accepted as necessary. These magistrates have even humbly acknowledged such criticisms as important and have even reminded the citizenry of their essentiality.

The introspective words of then US Supreme Court Associate Justice, Mr. Justice Brewer (Government by Injunction, 15 Nat’l Corp. Rep. 848,849), show this:

It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of goood taste, but better all sorts of criticsm than no criticsm at all.The moving waters are full of life and health; only in the still waters is stagnation and death.

Prof. Allan Hutchinson, associate dean of York University's Osgoode Hall Law School said this about the Canadian Supreme Court and its Justices:

In a democracy, it is imperative that judicial performance is the subject of vigorous questioning. If Supreme Court judges are to have such enormous power in, and over, Canadian democracy, it is essential to debate robustly their decisions, their reasoning, and their very status. We should encourage, not disparage as "embarrassing" those who have the guts to check any possible usurpations of power.We need not agree with their particular criticisms, but we should not put the courts beyond the reach of debate or questioning.

In the ultimate analysis, this impeachment proceeding against Chief Justice Corona does not present to us a specially extraordinary case. The underlying principle is still basic. Public office is a public trust. Accordingly, "men and women in robes" must also always be open to scrutiny. They betray this sovereign trust, they forfeit their positions.

But even high officials deserve to be given due process of law. Was due process accorded to the Chief Justice in the determination of whether or not he was really impeachable? Are the issues to be resolved in this impeachment case purely legal or are they matters of policy? At the time judgment is to be made, should the Senator-Judges look at the evidence focusing on Chief Justice Corona alone like in an ordinary civil case? Or should the Senator-Judges focus on the Chief Justice in relation to the future of the very institution he leads, the Judiciary and more particularly the Supreme Court? At the end of the day, will the issue basically be: Is Chief Justice Corona still good for the Supreme Court? We will examine these questions in the next issue.

x x x."

New mentality in the Court

2012-01-07T03:46:00.002+08:00

With the voluntary disclosure by SC Justices Carpio and Sereno of their individual statements of assets, liabilities and networth (SALN), will a new mentality of transparency and full disclosure emerge from the SC or will CJ Corona continue to stick to the old mentality of elitism and secrecy in the Court? One thing good about the pending Corona impeachment case is that public opinion has forced the Court to be humble, to listen to the People, and to be more careful with the way it performs its functions. Unlike members of the Executive and the Legislative, the small group of 15 SC justices are all UNELECTED OFFICIALS whose pens and opinions determine the fate and future of the nation. They must therefore be models of TRANSPARENCY, ACCOUNTABILITY and INTEGRITY.

Palace commends SALN disclosure of 2 SC members - Home » Other Sections » Breaking News

2012-01-07T03:36:00.000+08:00

Palace commends SALN disclosure of 2 SC members - Home » Other Sections » Breaking News

"x x x.

“The cause of Justice can have no sturdier shield than the integrity of those who are tasked with discharging it. The decision of Associate Justices Antonio Carpio and Maria Lourdes Sereno to release the summaries of their SALN is commendable,” said Presidential Spokesman Edwin Lacierda.

Lacierda said members of the judiciary disclosing their assets have everything to gain from embracing transparency and accountability, noting that the Palace believed that demonstrating faith in the Filipino is the best way to obtain and retain public confidence.

It is regrettable that while it is simple to disclose their SALNs for public inspection, there are those who so fear people’s scrutiny, Lacierda said.

“We call on the judiciary to join the legislature and the executive in making the disclosure of SALNs a routine reality,” he added.

Carpio and Sereno were the only members of the SC to respond to the request of Kaya Natin! Movement for Good Governance and Ethical Leadership to release the summaries of their SALNs.

The group has been asking SC Chief Justice Renato Corona to release his SALN. Corona’s failure to disclose his SALN is among the key charges used by the House justice committee in filing an impeachment complaint against him.

x x x."

SC warned: Corona trial could be another 'Garci' | ABS-CBN News

2011-12-30T14:57:00.000+08:00

SC warned: Corona trial could be another 'Garci' | ABS-CBN News

"x x x.

The party-list congressman also rejected the move by Corona's lawyers to call for a preliminary investigation of the complaint before the trial could continue.

He said there was no need for a preliminary probe since the impeachment process is not a judicial proceeding.

"Malinaw sa Constitution at mga rules that the impeachment does not involve criminal sanction. The only sanction is removal from office. Questionable pa nga kung pati retirement benefits or pension pwede ma-forfeit eh...Of course it's the Senate's discretion but pampa-delay eh. In fact, para sa amin mas maganda matapos ito as soon as possible," he said.

Corona's lawyers earlier filed a motion for a preliminary hearing at the Senate. A preliminary hearing will allow the senator-judges to determine whether or not there is enough evidence to hold the trial.

House prosecutors have called the move a delaying tactic. They said if the Senate approves Corona's request, the impeachment trial will not be able to start immediately.

x x x."

IBP statement supporting CJ Corona assailed

2011-12-30T14:40:00.000+08:00

The wrong IBP statement

Was both sad and disappointed when the Integrated Bar of the Philippines took the stand that the impeachment against Chief Justice Renato Corona was an affront to the independence on the Judiciary. Sad because I hold the IBP very dearly, having served as its Presidential Assistant for Human Rights for two years during the incumbency of President Feliciano Bautista. Disappointed because knowing almost all of its national officers personally, including its incumbent President Roan Libarios whom I had the pleasure of serving with when he was National Vice-President of the IBP, I do not understand how they can misread the importance of impeachment as a constitutional tool for public accountability of public officers. It was indeed a wrong statement.The IBP anchored its stand on the false belief that any and all means to promote accountability on the part of our magistrates is an affront to the Judiciary. Nothing can be farther from the truth. When the Constitution made the Supreme Court a co-equal branch of government, it did so mindful that there was a need to promote both independence and accountability of our magistrates. To achieve independence, the Constitution gave the Court both fiscal autonomy and security of tenure for all magistrates to serve until age 70. But to balance this independence, the Constitution included the remedy of impeachment to remove magistrates with otherwise fixed terms should they commit culpable violations of the Constitution, betrayal of public trust and graft and corruption. To provide the Court only with means to make it independent but bereft of an instrument of accountability would be to make a monster out of our courts. Hence, contrary to the position taken by the officers of the IBP, impeachment is a constitutional tool to promote accountability and not the sword of Damocles that it portrayed it to be.
Furthermore, as I argued in my paper which I delivered only this month in Hong Kong University on the occasion of the 4th International Conference of the Asian Society of Constitutional Law, the impeachment is a tool by which our policy makers, both from the House of Representatives and the Senate, can uphold the supremacy of the Constitution particularly on the issue of Corona’s appointment as Chief Justice. Normally, legal formalism demands that we accept as final and executory decisions made by the Supreme Court particularly where it interprets the Constitution. In Angara v. Electoral Tribunal, the Court declared that when it declares an act of any branch or instrumentality as unconstitutional and hence, null and void, this is not an exercise of “judicial supremacy”, but one that “upholds the supremacy of the Constitution”.
But what happens when the Court abdicates this duty to uphold the Constitution as it did in De Castro v. JBC when it resorted to constitutional draftsmanship in upholding Corona’s appointment as a midnight Chief Justice in a manner contrary to the language and intent of the Constitution? Are all the other branches of government precluded from defending the Constitution? Certainly not.
All public officers from all branches of government took an oath to uphold the Constitution. Here, the remedy is clearly impeachment, as the issue to be resolved by our policy makers will include that of the correctness and the wisdom of the Court’s ruling in De Castro. Surely, the people that gave life to the Constitution did not intend to grant unto the Court a monopoly of upholding the supremacy of the highest law of the land.
As correctly observed by Senator Joker Arroyo, Article 1 of the articles of impeachment will involve purely legal issues which includes the constitutionality of Corona’s acceptance of the post of Chief Justice.
I would also have appreciated it if the IBP’s leadership attempted to consult its members prior to issuing its statement against the impeachment of Chief Justice Corona. Certainly, as the compulsory national organization of lawyers, there is virtue in hearing what its members, all of whom are trained in constitutional law, have to say before issuing a statement that appears to bind all of its members. As it turned out, I am a bona fide member of the IBP and I have been whole-heartedly supporting the impeachment of Corona as a means of strengthening the constitution and the Court as an institution. My leaders in the IBP did not consult me before they issued their official position despite the fact that the articles of the IBP do contain a provision on consultation with its members. I am now constrained to put on record the fact that I do not approve of the IBP stand and that I have not authorized them to speak on my behalf on this particular issue. This is sad, but necessary.
In any case, I am pleased that the House of Representatives chose lawyer Mario “Ayo” Bautista to lead its panel of private prosecutors in the impeachment trial. Ayo was my boss during my first year of litigation practice and I know him to be a brilliant and dedicated litigator. With him on board, I am sure that the people’s interest would be promoted and safeguarded in the impeachment trial.

When trust does not prescribe - G.R. No. 140528

2011-12-29T09:42:00.000+08:00

G.R. No. 140528

"x x x.

The right of the Torbela siblings to recover Lot No. 356-A has not yet prescribed.

The Court extensively discussed the prescriptive period for express trusts in the Heirs of Maximo Labanon v. Heirs of Constancio Labanon,[65] to wit:

On the issue of prescription, we had the opportunity to rule in Bueno v. Reyes that unrepudiated written express trusts are imprescriptible:

“While there are some decisions which hold that an action upon a trust is imprescriptible, without distinguishing between express and implied trusts, the better rule, as laid down by this Court in other decisions, is that prescription does supervene where the trust is merely an implied one. The reason has been expressed by Justice J.B.L. Reyes in J.M. Tuason and Co., Inc. vs. Magdangal, 4 SCRA 84, 88, as follows:

Under Section 40 of the old Code of Civil Procedure, all actions for recovery of real property prescribed in 10 years, excepting only actions based on continuing or subsisting trusts that were considered by section 38 as imprescriptible. As held in the case of Diaz v. Gorricho, L-11229, March 29, 1958, however, the continuing or subsisting trusts contemplated in section 38 of the Code of Civil Procedure referred only to express unrepudiated trusts, and did not include constructive trusts (that are imposed by law) where no fiduciary relation exists and the trustee does not recognize the trust at all.”

This principle was amplified in Escay v. Court of Appeals this way: “Express trusts prescribe 10 years from the repudiation of the trust (Manuel Diaz, et al. vs. Carmen Gorricho et al., 54 O.G. p. 8429, Sec. 40, Code of Civil Procedure).”

In the more recent case of Secuya v. De Selma, we again ruled that the prescriptive period for the enforcement of an express trust of ten (10) years starts upon the repudiation of the trust by the trustee.[66]

To apply the 10-year prescriptive period, which would bar a beneficiary’s action to recover in an express trust, the repudiation of the trust must be proven by clear and convincing evidence and made known to the beneficiary.[67] The express trust disables the trustee from acquiring for his own benefit the property committed to his management or custody, at least while he does not openly repudiate the trust, and makes such repudiation known to the beneficiary or cestui que trust. For this reason, the old Code of Civil Procedure (Act 190) declared that the rules on adverse possession do not apply to “continuing and subsisting” (i.e., unrepudiated) trusts. In an express trust, the delay of the beneficiary is directly attributable to the trustee who undertakes to hold the property for the former, or who is linked to the beneficiary by confidential or fiduciary relations. The trustee's possession is, therefore, not adverse to the beneficiary, until and unless the latter is made aware that the trust has been repudiated.[68]

Dr. Rosario argues that he is deemed to have repudiated the trust on December 16, 1964, when he registered Lot No. 356-A in his name under TCT No. 52751, so when on February 13, 1986, the Torbela siblings instituted before the RTC Civil Case No. U-4359, for the recovery of ownership and possession of Lot No. 356-A from the spouses Rosario, over 21 years had passed. Civil Case No. U-4359 was already barred by prescription, as well as laches.

The Court already rejected a similar argument in Ringor v. Ringor[69] for the following reasons:

A trustee who obtains a Torrens title over a property held in trust for him by another cannot repudiate the trust by relying on the registration. A Torrens Certificate of Title in Jose’s name did not vest ownership of the land upon him. The Torrens system does not create or vest title. It only confirms and records title already existing and vested. It does not protect a usurper from the true owner. The Torrens system was not intended to foment betrayal in the performance of a trust. It does not permit one to enrich himself at the expense of another. Where one does not have a rightful claim to the property, the Torrens system of registration can confirm or record nothing. Petitioners cannot rely on the registration of the lands in Jose’s name nor in the name of the Heirs of Jose M. Ringor, Inc., for the wrong result they seek. For Jose could not repudiate a trust by relying on a Torrens title he held in trust for his co-heirs. The beneficiaries are entitled to enforce the trust, notwithstanding the irrevocability of the Torrenstitle. The intended trust must be sustained.[70] (Emphasis supplied.)

In the more recent case of Heirs of Tranquilino Labiste v. Heirs of Jose Labiste,[71] the Court refused to apply prescription and laches and reiterated that:

[P]rescription and laches will run only from the time the express trust is repudiated. The Court has held that for acquisitive prescription to bar the action of the beneficiary against the trustee in an express trust for the recovery of the property held in trust it must be shown that: (a) the trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust; (b) such positive acts of repudiation have been made known to thecestui que trust, and (c) the evidence thereon is clear and conclusive. Respondents cannot rely on the fact that the Torrens title was issued in the name of Epifanio and the other heirs of Jose. It has been held that a trustee who obtains a Torrens title over property held in trust by him for another cannot repudiate the trust by relying on the registration. The rule requires a clear repudiation of the trust duly communicated to the beneficiary. The only act that can be construed as repudiation was when respondents filed the petition for reconstitution in October 1993. And since petitioners filed their complaint in January 1995, their cause of action has not yet prescribed, laches cannot be attributed to them.[72] (Emphasis supplied.)

It is clear that under the foregoing jurisprudence, the registration of Lot No. 356-A by Dr. Rosario in his name under TCT No. 52751 on December 16, 1964 is not the repudiation that would have caused the 10-year prescriptive period for the enforcement of an express trust to run.

The Court of Appeals held that Dr. Rosario repudiated the express trust when he acquired another loan from PNB and constituted a second mortgage on Lot No. 356-A sometime in 1979, which, unlike the first mortgage to DBP in 1965, was without the knowledge and/or consent of the Torbela siblings.

The Court only concurs in part with the Court of Appeals on this matter.

For repudiation of an express trust to be effective, the unequivocal act of repudiation had to be made known to the Torbela siblings as the cestuis que trust and must be proven by clear and conclusive evidence. A scrutiny of TCT No. 52751 reveals the following inscription:

Entry No. 520099

Amendment of the mortgage in favor of PNB inscribed under Entry No. 490658 in the sense that the consideration thereof has been increased to PHILIPPINE PESOS Four Hundred Fifty Thousand Pesos only (P450,000.00) and to secure any and all negotiations with PNB, whether contracted before, during or after the date of this instrument, acknowledged before Notary Public of Pangasinan Alejo M. Dato as Doc. No. 198, Page No. 41, Book No. 11, Series of 1985.

Date of Instrument March 5, 1981

Date of Inscription March 6, 1981[73]

Although according to Entry No. 520099, the original loan and mortgage agreement of Lot No. 356-A between Dr. Rosario and PNB was previously inscribed as Entry No. 490658, Entry No. 490658 does not actually appear on TCT No. 52751 and, thus, it cannot be used as the reckoning date for the start of the prescriptive period.

The Torbela siblings can only be charged with knowledge of the mortgage of Lot No. 356-A to PNB onMarch 6, 1981 when the amended loan and mortgage agreement was registered on TCT No. 52751 as Entry No. 520099. Entry No. 520099 is constructive notice to the whole world[74] that Lot No. 356-A was mortgaged by Dr. Rosario to PNB as security for a loan, the amount of which was increased to P450,000.00. Hence, Dr. Rosario is deemed to have effectively repudiated the express trust between him and the Torbela siblings on March 6, 1981, on which day, the prescriptive period for the enforcement of the express trust by the Torbela siblings began to run.

From March 6, 1981, when the amended loan and mortgage agreement was registered on TCT No. 52751, to February 13, 1986, when the Torbela siblings instituted before the RTC Civil Case No. U-4359 against the spouses Rosario, only about five years had passed. The Torbela siblings were able to institute Civil Case No. U-4359 well before the lapse of the 10-year prescriptive period for the enforcement of their express trust with Dr. Rosario.

Civil Case No. U-4359 is likewise not barred by laches. Laches means the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. As the Court explained in the preceding paragraphs, the Torbela siblings instituted Civil Case No. U-4359 five years after Dr. Rosario’s repudiation of the express trust, still within the 10-year prescriptive period for enforcement of such trusts. This does not constitute an unreasonable delay in asserting one's right. A delay within the prescriptive period is sanctioned by law and is not considered to be a delay that would bar relief. Laches apply only in the absence of a statutory prescriptive period.[75]

xxx"

Philippine Laws and Cases - Atty. Manuel J. Laserna Jr.

Mass Incarceration and Criminal Justice in America : The New Yorker

The US vs. Genuine Reforms at the UN » Counterpunch: Tells the Facts, Names the Names

Employers, you might (or might not) be liable for retaliation if . . . : Employment and Labor Insider : Constangy Brooks and Smith: Insight into workplace, affirmative action, workers' compensation, occupational safety, class action, and wage and hour law.

Raps filed vs SC spokesman over WB fund mess - The Philippine Star » News » Headlines

Older Prisoners Mean Rising Health Costs, Study Finds - NYTimes.com

The Indefinite Detention of Citizens and Non-Citizens Under the NDAA | Joanne Mariner | Verdict | Legal Analysis and Commentary from Justia

Why Interdisciplinary Legal Scholarship Is Good for the Law, the Academy, and Society at Large | Neil H. Buchanan | Verdict | Legal Analysis and Commentary from Justia

The Lower Court Rulings in Nordyke and Heller II Highlight Judicial Confusion Over Gun Rights: | Vikram David Amar | Verdict | Legal Analysis and Commentary from Justia

Men Who Give It Away: | Joanna L. Grossman | Verdict | Legal Analysis and Commentary from Justia

Resigned; not illegally dismissed - G.R. No. 183915

Renewal of lease; mutuality of contract - G.R. No. 161718

Estoppel explained - G.R. No. 161718

Flawed selection of and degraded Supreme Court

Judicial pork barrel?

US Supreme Court ruling for Pinoy could slow down massive deportation - InterAksyon.com

raissa robles Realty broker: Corona’s posh condo “a steal” at P14 million

Realty broker: Corona’s posh condo“a steal” at P14 million

Low taxes “unheard of” in the business, broker says

My Exclusive

By Raïssa Robles

My brain had quickly dismissed it because I was thinking it must be a different Corona since his first name starts with “R.” Now I realize that “J.” stands for “Justice”. Click on this link to read CJ Corona’s decision.

Why the Bellagio condo “is a steal”

Why was Corona’s condo purchase taxed so low?

What CJ Corona has admitted so far

DEED OF ABSOLUTE SALE for Bellagio 1, page one

DEED OF ABSOLUTE SALE for Bellagio 1, page two

CERTIFICATE AUTHORIZING REGISTRATION, BIR

CONDOMINIUM CERTIFICATE OF TITLE -CJ CORONA’S CONDO at Bellagio Tower 1, 38th floor

CONDOMINIUM CERTIFICATE OF TITLE – parking slot 1

CONDOMINIUM CERTIFICATE OF TITLE – parking slot 2

CONDOMINIUM CERTIFICATE OF TITLE – parking slot 3

U.S. Supreme Court ruling for Pinoy could slow down massive deportation - ZamboTimes Online

More political than legal | Inquirer Opinion

Between law and politics | Inquirer Opinion

Farmers join manhunt for Palparan | Inquirer News

Small-scale miners choose to live in valley of death | Inquirer News

Chief Justice Corona declared SALN P15M in 1992, P14M in 2002 | Inquirer News

Abalos lawyer faces jail time | Inquirer News

Small-scale miners in 30 provinces account for 70% of mined gold - MGB - InterAksyon.com

For lawyers: Middle-Aged Brains Are Already Past Their Prime : Shots - Health Blog : NPR

Lawyer of the Day: Alleged Death Threats Put Attorney on Ice « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts

Judges slam House panel for CJ 'trial by publicity' - The Philippine Star » News » Headlines

House prosecutors to obey Senate 'gag rule' - The Philippine Star » News » Headlines

OPINION: Corona's impeachment and the power of scrutiny - InterAksyon.com

New mentality in the Court

Palace commends SALN disclosure of 2 SC members - Home » Other Sections » Breaking News

SC warned: Corona trial could be another 'Garci' | ABS-CBN News

IBP statement supporting CJ Corona assailed

When trust does not prescribe - G.R. No. 140528

Realty broker: Corona’s posh condo
“a steal” at P14 million