Wednesday, April 29, 2009

Las Pinas City Bar Association

Email : Email :
Website :
Tel ./Fax No. 911-02281 ; 0918-90152334; 8007594

April 22, 20099
For Circulation To All Concerned


The New Officers and Directors of the Las Piñas City Bar Association (LPBA), Inc. for the term - March 2009 to March 2010 , elected during the Regular Monthly Board Meeting held on March 18, 2009 (3rd Wednesday) at 6:00 PM at the Cecille’s Restaurant , BF Resort Village, Las Piñas City:

Chairman Atty. MELVYN R. LAGASCA
Vice Chairman Atty. PURITA A. FAJILAN
Vice President Atty. FELIX S. SAYAGO.
Secretary Atty. JOSE M. CARINGAL
Treasurer Atty. ROLITO A. ABING



ADVISER : Judge RAUL B. VILLANUEVA Judge Joselito DJ Vibandor
Exe. Judge, RTC (Branch255) RTC Branch 199 Las Piñas City
Las Piñas City


Chairman - Atty. Manuel J. Laserna Jr.
Vice - Atty. Myrna C. Mercader
Chairman - Atty. Melvyn R. Lagasca
Vice - Atty. Hilda Sacay-Clave
Chairman - Atty. Rolito A. Abing
Vice - Atty. Felix S. Sayago
Chairperson - Atty. Corazon G. Figuerres
Chairman - Atty. Jose G. De Leon Jr.
Chairman - Atty. Richard V. Funk
Vice - Atty. Antonio B. Manzano

Email : Email :
Website : http://group,
Tel ./Fax No. 911-02281 ; 0918-90152334; 8007594

April 22, 2009

Sir / Madam :

The new set of officers and directors of the Las Piñas City Bar Association (LPBA), Inc. was elected during the general membership meeting which was held on March 18, 2009 (3rd Wednesday), 6:00 PM at the Cecille’s Restaurant , BF Resort Village, Las Piñas City,

The formal induction of the new set of officers and directors is set on June 24, 2009, 6:00 o’clock P.M. at the Pilar Village Club House, Las Piñas City. For this year your officers have lined-up several projects, one of which is to invite a resource person from the Supreme Court and IBP to enlighten the members on BAR Matter No. 2012, the compulsory 60 hours pro-bono legal service, and the possible accreditation of LPBA as a certifying body. Needless to say, in order to make this endeavor a successful one, we need the full support of all the members by way of updating their past dues and by participating in its projects. Although payment of your past dues are much desired, your payment of the 2009 annual dues will go a long way and help defray the expenses of the association (P500.00 for regular member, P250.00 for associate member).

Please fill-up the enclosed information sheet to update your membership profile, contact number, 2x2 photo, email address, etc. You may submit the same together with your payment for the 2009 Annual dues to our Treasurer:

Abing, Abrenica Dagcuta & Associate Law Office
Unit 2-L, New Pamplona Lumber Bldg.
267 Real (A-Z) Road , Pamplona, Las Pinas city
Tel. No. 875-2909 / 0917-7914445

or you may remit your payments directly to China Bank under the account name of LPBA, Account Number ____________________ and fax to us the copy of your deposit receipt.

We will also prepare a souvenir journal which will contain the historical profile of the LPBA , its vision and objectives, the Articles of Incorporation, By-Laws , the list of members with their updated profiles, addresses and contact numbers. Please support our association by placing your ads in the souvenir journal and by soliciting advertisement from your friends and clients. Attached is the copy of the Advertising Contract for your immediate reference.

Your prompt response on this matter will be highly appreciated. .

Very truly yours,

President 2009-2010

Chairman of the Board

Email :
Website: http://group,
Tel/Fax No. 911-02281; 0919-3536178 ; 8007594


Induction Night : Officers and Directors 2009-2010
Wednesday, June 24, 2009
Pilar Village Club House
Mohogany Road , Las Pinas City

Instructions : Please complete this form and return with subscription payment and advertisement by June 01, 2009.

Name of Person/Company _____________________________________________

Contact Person/Title ___________________________________________________
Address ___________________________________________________
Tel. No. / Cell No. ___________________________________________________

Authorized Signature______________________________ .



_____ Outside Back Cover . . . . . . . . . . P15,000.0

_____ Inside Front Cover . . . . . . . . . P10,000.00

_____ Inside Back Cover . . . . . . . . . P10,000.00

_____ Inside Full Page . . . . . . . . . P5,000.00

_____ Inside Half Page . . . . . . . . P2,500.00

_____ Inside One-fourth Page . . . . . . . . P1,250.00

CHECK ONE : ( ) Artwork is attached
( ) Business Card is attached
( ) Develop a “Congratulations Ad”

SPECIAL INFORMATION : All advertisement will be printed in black ink on white paper. Over-all Journal size is _________ .

IS JUNE 01, 2009 * *

FORM OF PAYMENT : Pay to the Order of :
“Las Pinas City Bar Association Inc”.
CHECK ONLY , no cash, please

SEND TO : Atty Melvyn R. Lagasca,
Blk. 2 Lot 1 Marcos Alvarez Ave Talon V,
Las Pinas City. Tel no. 800-7594;

Tuesday, April 28, 2009

Weaknesses of the IBP

RULE 139-A (Integrated Bar of the Philippines [IBP]) of the Rules of Court of the Philippines in effect serves as the charter and the vision and mission statement of the mandatory Integrated Bar of the Philippines.

The fundamental purposes of the Integrated Bar are “to elevate the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively”, according to Sec. 2 of the Rule.

The Philippines is divided into nine (9) Regions of the Integrated Bar. It will be noted that the Greater Manila Region consists only of the Manila and Quezon City. The cities of Makati, Las Pinas, Pasay, Paranaque, Muntinlupa, Caloocan, Malabon, and Navotas (all of which are parts of Metro Manila) are placed under the Southern Luzon Region. Other cities of the province of Rizal (which is under Southern Luzon Region) which are now part of Metro Manila are still under Southern Luzon Region, such as, San Juan, Mandaluyong, Taguig, Pasig, and Pateros. Valenzuela City (a part of Metro Manila) is placed under the province of Bulacan (Central Luzon Region).
The IBP Board of Governors, with the approval of the Supreme Court, has the power to determine the restructuring of the IBP Regions to which a new province or a new city should belong, but so far it has not taken concrete steps to update the structural distribution of IBP chapters in the country, taking into account the new cities and provinces created by special laws these past decades.

The IBP “chaptering” scheme is on a per province basis, and every city is considered part of the province within which it is geographically situated. There are exceptions. In the case of Manila, each congressional district is equivalent to one chapter. But not so in the case of Quezon City, which has more than 20,000 lawyers. It is not divided into district chapters. There is only one chapter that serves the four cities in the southern part of Metro Manila, i.e., Pasay, Paranaque, Las Pinas, and Muntinlupa (where I served as a ranking officer for many years from 1995 to 2007). Cebu City, which also has hundreds of lawyers, is not divided into district chapters. The cities of Zamboanga and Basilan, in Mindanao, which also has hundreds of lawyers, are combined into one chapter only.

No wonder, hundreds (if not thousands) of lawyers nationwide are not properly served by the IBP chapters; and the perfunctory role of the members is routinely activated only during the IBP chapter elections every two years. Once in a while, some chapters hold law seminars and bench and bar dialogues, but the attendance of ordinary lawyers in these events is limited.

Honestly, speaking, if a satisfaction survey were to be conducted today, a great majority of lawyers (and local communities) would surely condemn the IBP national board and the IBP chapters for technical absenteeism, incompetence, and failure to deliver the needed services to the Bar, the Justice System, and the Community.

Lawyers who are members of the Sigma Rho Fraternity of the College of Law of the University of the Philippines (and its competing fraternities from the same university) see to it that they control the internal politics of the IBP national board. The UP Sigma Rho Fraternity feels that it has the God-given right to monopolize the national power structure of the IBP since its birth in the 1970s.

Many of its members move from one chapter to another every two years to insure that their fraternity are able to maintain chapter leaders (voters in the regional elections) who will qualify as regional governors in order to ultimately control the political reins of the IBP national office, more particularly its presidency, executive vice presidency, Commission on Bar Discipline, and National Committee on Legal Aid (into which the Supreme Court pours in millions of pesos annually).

This “chapter shopping” is intentionally done in violation of the spirit of Sec. 4 of Rule 139-A simply to retain political control of the IBP national office. The said provision provides that “unless he otherwise registers his preference for a particular Chapter, a lawyer shall be considered a member of the Chapter of the province, city, political subdivision or area where his office, or, in the absence thereof, his residence is located” and that “in no case shall any lawyer be a member of more than one Chapter”.

Under Sec. 5 of the Rule, the IBP shall have a House of Delegates of not more than one hundred twenty members who shall be apportioned among all the Chapters as nearly as may be according to the number of their respective members. Each Chapter has at least one Delegate. The House holds annual conventions in April of each year “for the election of Governor, the reading and discussion of reports including the annual report of the Board of Governors, the transaction of such other business as may be referred to it by the Board, and the consideration of such additional matters as may be requested in writing by at least twenty Delegates.”

My experience with the past meetings of the IBP House of Delegates (when I was still a ranking officer of the IBP chapter in the southern district of Metro Manila) was very bad. The IBP national leaders had converted the House into a debasing nocturnal social event, with a few routine law lectures which were not even intellectually stimulating. The IBP House of Delegates has miserably failed to fulfill its clear mandate to serve as a national forum for congressional-type deliberations and debates on the concerns of and proposals from ordinary rural and urban lawyers whose small voices must be heard by the IBP national leaders if they want to improve the Philippine Bar and the Philippine Justice System.

The IBP is headed at the national level by a President and an Executive Vice President who are chosen by the Governors immediately after the latter's election during the regional elections, “either from among themselves or from other members of the Integrated Bar”. Each of the regional members of the Board is the ex officio Vice President for the Region which he represents.

The Executive Vice President automatically becomes the President for the next succeeding full term. (Note: It is unfortunate that this rule does not apply to the local IBP chapter, thus, derailing the continuity of policies at the local chapter level).

The Presidency shall rotate from year to year among all the nine Regions in such order or rotation as the Board of Governors shall prescribe. (Note: This is the basis for the “chapter shopping” political tactic of the UP Sigma Rho Fraternity to maintain its political hold on the IBP national office, as discussed earlier).
Every IBP member may pay the mandatory dues annually or he may avail himself of the Lifetime Membership Plan, which I did in the 1990s.

A fixed sum equivalent to ten percent (10%) of the collection from each Chapter shall be set aside “as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof” (provided that the member has no outstanding accounts as of the time of his death). This Fund must be audited strictly. Unfortunately, the IBP national office and the IBP local chapters do not publish their annual financial statements.

Default in the payment of annual dues for six months shall warrant suspension of membership in the IBP, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys. (Sec. 10).

A member may terminate his membership by filing a written notice to that effect with the Secretary of the Integrated Bar, who shall immediately bring the matter to the attention of the Supreme Court. Reinstatement may be made by the Court in accordance with rules and regulations prescribed by the Board of Governors and approved by the Court. (Sec. 11).

Sec. 12 of the Rule provides that the Board of Governors shall provide in the By-Laws for “grievance procedures for the enforcement and maintenance of discipline among all the members of the Integrated Bar”. However, “no action involving the suspension or disbarment of a member or the removal of his name from the Roll of Attorneys shall be effective without the final approval of the Supreme Court”.

The IBP is, in theory, “strictly non-political” (Sec. 13). No lawyer holding an elective, judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election or appointment to any position in the IBP. Despite this rule, many politicians seek the psychological endorsement of IBP officials during election time to make a good impression among the voters; and many politicians seek IBP positions prior to an election as an additional impressive credential in their resumes. I acknowledge, though, that the IBP national board has tried its very best to maintain its neutrality except on national political issues that affect the rule of law and the justice system in the country.

Under Sec. 14 of the Rule, an IBP position is “honorary”. The rule is that, “except as may be specifically authorized or allowed by the Supreme Court, no Delegate or Governor and no national or local Officer or committee member shall receive any compensation, allowance or emolument from the funds of the Integrated Bar for any service rendered therein or be entitled to reimbursement for any expense incurred in the discharge of his functions.

I do not believe that this rule is being followed by the IBP national leaders to the letter. I know for a fact, based on my observations as former IBP chapter officer, that during the multifarious national conventions, seminars, and law events that the IBP holds nationwide and during national board meetings, the IBP directly or indirectly spends for the fares, rooms, meals, and other incidental expenses of the IBP national leaders and their cliques of law fraternity brothers and sisters form local chapters.

I am not sure how strict the Supreme Court and the Commission on Audit are in conducting annual audits and examinations, if any, of the funds that are remitted to the IBP national office by the SC, e.g., legal aid funds, special funds.

As to the local chapter funds, as far as I know, the SC and the COA do not audit such funds. There are many chapters with huge funds, running into a million pesos or more, such as my local chapter in the southern district of Metro Manila and the other rich cities in the country. The SC and the COA do not regularly audit these chapters, even by way of random spot audits of selected chapters per region. This inaction is and can be a source of graft and corruption.

The Board of Governors administers the funds of the IBP and has the power to make appropriations and disbursements therefrom. It is duty bound to cause the proper Books of Accounts to be kept and Financial Statements to be rendered. It must see to it that the “proper audit is made of all accounts of the IBP and all the Chapters thereof”. (Sec. 15).

The IBP Journal, which is mandated by Sec. 16 of the Rule, is not issued on time. It is delayed by six months to one year, sometimes even more. The chapters give them annually to the members when they pay their annual dues. They are not mailed directly to the members.

Under Sec. 17 of the Rule, “all voluntary Bar associations now existing or which may hereafter be formed may co-exist with the Integrated Bar but shall not operate at cross-purposes therewith.” The problem is that the IBP does not seem to morally and financially support the voluntary bar associations nationwide, especially its free legal aid projects, local bench and bar dialogues, and other activities, as is my experience in the case of the Las Pinas City Bar Association which I founded in March 2001.

The IBP does not consult the voluntary bar association on major policy and implementation issues and procedures. I have the feeling that the IBP national and local leaders distrusts the voluntary bar associations and their active, innovative and forthright leaders as their competitors, which is a baseless and stupid fear.

Wednesday, April 22, 2009

How IBP was born

The history of the mandatory Integrated Bar of the Philippines (IBP) started in 1973 when the Philippine Supreme Court, by virtue of the power vested in it by Section 13 of Article VIII of the 1973 Philippine Constitution, ordained the integration of the Bar of the Philippines, effective on January 16, 1973. (See: IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE PHILIPPINES, En Banc, January 9, 1973).

Prior to that, the Philippine Congress had passed R.A. No. 6397, entitled "An Act Providing for the Integration of the Philippine Bar, and Appropriating Funds Therefor", which took effect on September 17, 1971 and took effect on the same day as Rep. Act 6397. It provided that within two years from its approval, the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit “in order to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively”.

Integration of the Philippine Bar means the official unification of the entire lawyer population of the Philippines. This requires membership and financial support (in reasonable amount) of every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court. It was envisioned “to foster cohesion among lawyers and ensure the promotion of the objectives of the legal profession”.

The Court declared that the guiding principle of the integration of the Bar was “the principle of maximum Bar autonomy with minimum supervision and regulation by the Supreme Court”.

The objectives of an integrated Bar were:

(1) Assist in the administration of justice;
(2) Foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct;
(3) Safeguard the professional interests of its members;
(4) Cultivate among its members a spirit of cordiality and brotherhood;
(5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto;
(6) Encourage and foster legal education;
(7) Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon; and
(8) Enable the Bar to discharge its public responsibility effectively.

It was hoped that the integration of the Bar would make it possible for the legal profession to:

(1) Render more effective assistance in maintaining the Rule of Law;
(2) Protect lawyers and litigants against the abuse of tyrannical judges and prosecuting officers;
(3) Discharge, fully and properly, its responsibility in the disciplining and/or removal of incompetent and unworthy judges and prosecuting officers;
(4) Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence;
(5) Have an effective voice in the selection of judges and prosecuting officers;
(6) Prevent the unauthorized practice of law, and break up any monopoly of local practice maintained through influence or position;
(7) Establish welfare funds for families of disabled and deceased lawyers;
(8) Provide placement services, and establish legal aid offices and set up lawyer reference services throughout the country so that the poor may not lack competent legal service;
(9) Distribute educational and informational materials that are difficult to obtain in many of our provinces;
(10) Devise and maintain a program of continuing legal education for practising attorneys in order to elevate the standards of the profession throughout the country;
(11) Enforce rigid ethical standards, and promulgate minimum fees schedules;
(12) Create law centers and establish law libraries for legal research;
(13) Conduct campaigns to educate the people on their legal rights and obligations, on the importance of preventive legal advice, and on the functions and duties of the Filipino lawyer; and
(14) Generate and maintain pervasive and meaningful country-wide involvement of the lawyer population in the solution of the multifarious problems that afflict the nation.

The Court held that it may integrate the Philippine Bar in the exercise of its power, under Article VIII, Sec. 13 of the 1987 Philippine Constitution, "to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law."

Further, the Court stressed the following principles:

1. Courts have the inherent power to supervise and regulate the practice of law.

2. The practice of law is not a vested right but a privilege; a privilege, moreover, clothed with public interest, because a lawyer owes duties not only to his client, but also to his brethren in the profession, to the courts, and to the nation; and takes part in one of the most important functions of the State, the administration of justice, as an officer of the court.

3. Because the practice of law is privilege clothed with public interest, it is fair and just that the exercise of that privilege be regulated to assure compliance with the lawyer's public responsibilities.

4. These public responsibilities can best be discharged through collective action; but there can be no collective action without an organized body; no organized body can operate effectively without incurring expenses; therefore, it is fair and just that all attorneys be required to contribute to the support of such organized body; and, given existing Bar conditions, the most efficient means of doing so is by integrating the Bar through a rule of court that requires all lawyers to pay annual dues to the Integrated Bar.

According to the Court, to compel a lawyer to be a member of an integrated Bar is “not violative of his constitutional freedom to associate (or the corollary right not to associate).”

Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar “when he passed the Bar examinations”. The Court added, “All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member”.

Trying to pacify the minds of oppositionists to an integrated bar, the Court held that Bar integration “does not compel the lawyer to associate with anyone”. He is free “to attend or not attend the meetings” of his Integrated Bar Chapter or “vote or refuse to vote” in its elections as he chooses. “The body compulsion to which he is subjected is the payment of annual dues”, the Court clarified.

Unfortunately, the Court made a risky statement, thus: “Membership in the Unified Bar imposes only the duty to pay dues in reasonable amount”, i.e., “a compelled financial support of group activities, not involuntary membership in any other aspect”.

It stated further that such compulsion was “justified as an exercise of the police power of the State”.

It stressed that “the inherent power of the Supreme Court to regulate the Bar includes the authority to integrate the Bar”, the Court added.

It qualified that the annual membership dues are not a tax, the Court stated. A membership fee in the Integrated Bar is an “exaction for regulation”, while the purpose of a tax is “revenue”.

The Court also stressed, thus: “A lawyer is free, as he has always been, to voice his views on any subject in any manner he wishes, even though such views be opposed to positions taken by the Unified Bar”.

Citing the experience of England, Canada, and the United States, the Court dismissed the fears of many at the time that in the event of integration, “Government authority will dominate the Bar”; that “local Bar associations will be weakened”; that “cliquism will be the inevitable result”; that “effective lobbying will not be possible”; that “the Bar will become an impersonal Bar”; and “politics will intrude into its affairs.”

The Court stated that in a national poll its commission on bar integration had conducted, of a total of 15,090 lawyers from all over the archipelago who have turned in their individual responses, 96.45% voted in favor of Bar integration, while only 2.51% voted against it, and 1.04% were non-commital.

The Court further stated that a total of 80 local Bar associations all over the Philippines had submitted resolutions of unqualified endorsement and/or support for Bar integration. It added that of the 13,802 individual lawyers who cast their plebiscite ballots on the proposed integration Court Rule drafted by the Commission, 93.14% voted in favor thereof, 4.80% vote against it, and 2.06% were non-committal. All

(Note: I will comment in my future blogs on how effective [or useless] has the IBP been since its birth in 1973 in fulfilling its above-stated mandates).

Tuesday, April 21, 2009

Impeachable officers

The case of RODANTE D. MARCOLETA vs. RESURRECCION Z. BORRA AND ROMEO A. BRAWNER , A.C. No. 7732, March 30, 2009 involved a complaint for disbarment which was filed by Atty. Rodante D. Marcoleta (complainant) against respondents Commissioners Resurreccion Z. Borra (Borra) and Romeo A. Brawner (Brawner) of the Commission on Elections (Comelec) charging them with violating Canons 1 (1.01, 1.02 and 1.03) and 3 (3.01, 3.02, 3.05 and 3.06) of the Code of Judicial Conduct and Canons 4, 5, 6 and 17 of the Canons of Judicial Ethics. Additionally, complainant charges respondents of violating Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees.

During the 2007 National and Local Elections, the warring factions of complainant and Diogenes S. Osabel (Osabel) each filed a separate list of nominees for the party-list group Alagad.

With Alagad winning a seat in the House of Representatives, the two protagonists contested the right to represent the party. By Omnibus Resolution of July 18, 2007, the dispute was resolved by the Comelec’s First Division in favor of Osabel. Commissioner Borra wrote the ponencia while Commissioner Brawner concurred. The dispute was elevated to the Comelec En Banc which, by Resolution of November 6, 2007, reversed the First Division Resolution and reinstated the certificate of nomination of complainant’s group. For failing to muster the required majority voting, however, the Comelec ordered the re-hearing of the controversy. Notwithstanding the conduct of a re-hearing, the necessary majority vote could not still be obtained. The Comelec’s First Division’s Omnibus Resolution was eventually affirmed.

Respondent Brawner, in his Answer dated April 2, 2008, asserted in the main that “the remedy of complainant is not to file a complaint for disbarment, but to file an appeal before [the Supreme Court] via [p]etition for [c]ertiorari,” and that being members of a constitutional body enjoying presumption of regularity in the performance of their functions, he and co-respondent Borra “are supposed to be insulated from a disbarment complaint for being impeachable officers.”

In his Comment, respondent Borra contended that the Code of Judicial Conduct and Canons of Judicial Ethics could be made to apply to him and his co-respondent, they not being members of the judiciary; and that since they performed quasi-judicial functions as well as administrative duties, they were bound by the Comelec’s own set of internal rules and procedure over and above a Code of Conduct that prescribed the norms and standards of behavior to be observed by the officials and employees of the Comelec, a constitutional body.

Respondent Borra further contended that present complaint was premature as “the validity and legality of the resolutions are still subject to review;” and that the complaint was meant to “harass [him] and punish him for exercising his judgment on the case filed before him.”

The Court took notice that respondent Borra had retired from the Comelec on February 2, 2008 while respondent Brawner passed away on May 29, 2008.

As regards respondent Brawner then, the present case was already moot.

At the outset, the Court, guided by its pronouncements in Jarque v. Ombudsman, A.C. No. 4509, December 5, 1995, 250 SCRA xi, In Re: Raul M. Gonzales, A.M. No. 88-4-5433, April 15, 1988, 160 SCRA 771, and Cuenco v. Fernan, A.C. No. 3135, February 17, 1988, 158 SCRA 29, has laid down the rule that an impeachable officer who is a member of the Bar cannot be disbarred without first being impeached. (Sec. 2, Art. 11, 1987 Constitution).

As an impeachable officer who is at the same time a member of the Bar, respondent Borra must first be removed from office via the constitutional route of impeachment before he may be held to answer administratively for his supposed errant resolutions and actions.

The Court thus found respondent Borra’s contention that the grounds-bases of the disbarment complaint, fastened on supposed errors of judgment or grave abuse of discretion in the appreciation of facts, were proper for an appeal, hence, complainant’s remedy was judicial, not administrative.

The Court stated that the New Code of Judicial Conduct for the Philippine Judiciary applied only to courts of law, of which the Comelec was not, hence, sanctions pertaining to violations thereof were made exclusively applicable to judges and justices in the judiciary, not to quasi-judicial officers like the Comelec chairman and members, who have their own codes of conduct to steer them.

Even if the Court were to gauge the assailed actions of respondent Borra under the Code of Professional Responsibility, no specific incidents and sufficient evidence can be gathered to show that respondent did engage in dishonest, immoral or deceitful conduct in his capacity as a lawyer. It bears reiteration that the acts particularized in the complaint pertain to respondent Borra’s duties as a Comelec commissioner.

As for the release of retirement benefits to respondent Borra, there was nothing irregular therewith, the same being in line with Memorandum Circular No. 10 (series of 1995) of the Office of the Ombudsman reading:

x x x a person retiring from the government service, whether optional or compulsory, needs only to present a certification from this Office whether or not he has a pending criminal or administrative case with it. In the event the certification presented states that the prospective retiree has a pending case, the responsibility of determining whether to release his retirement benefits, as well as the imposition of necessary safeguards to ensure restitution thereof in the event the retiree is found guilty, rests upon and shall be left to the sound discretion of the head of the department, office or agency concerned. (Emphasis and underscoring in the original)

Corporate Rehabilitation

For purposes of legal research, may I digest below the salient portions of the landmark case of NEW FRONTIER SUGAR CORPORATION vs. REGIONAL TRIAL COURT, G.R. NO. 165001, January 31, 2007, on the matter of corporate rehabilitation, which is one kind of special and summary proceeding whose volume has escalated by reason of the current global economic crisis.

X X X.

In dismissing the petition, the CA sustained the findings of the RTC that since petitioner no longer has sufficient assets and properties to continue with its operations and answer its corresponding liabilities, it is no longer eligible for rehabilitation. The CA also ruled that even if the RTC erred in dismissing the petition, the same could not be corrected anymore because what petitioner filed before the CA was a special civil action for certiorari under Rule 65 of the Rules of Court instead of an ordinary appeal.

X x x.

Rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful operation and solvency. Presently, the applicable law on rehabilitation petitions filed by corporations, partnerships or associations, including rehabilitation cases transferred from the Securities and Exchange Commission to the RTCs pursuant to Republic Act No. 8799 or the Securities Regulation Code, is the Interim Rules of Procedure on Corporate Rehabilitation (2000).

Under the Interim Rules, the RTC, within five (5) days from the filing of the petition for rehabilitation and after finding that the petition is sufficient in form and substance, shall issue a Stay Order appointing a Rehabilitation Receiver, suspending enforcement of all claims, prohibiting transfers or encumbrances of the debtor’s properties, prohibiting payment of outstanding liabilities, and prohibiting the withholding of supply of goods and services from the debtor. Any transfer of property or any other conveyance, sale, payment, or agreement made in violation of the Stay Order or in violation of the Rules may be declared void by the court upon motion or motu proprio.

Further, the Stay Order is effective both against secure and unsecured creditors. This is in harmony with the principle of "equality is equity" first enunciated in Alemar’s Sibal & Sons, Inc. v. Elbinias, thus:

During rehabilitation receivership, the assets are held in trust for the equal benefit of all creditors to preclude one from obtaining an advantage or preference over another by the expediency of an attachment, execution or otherwise. For what would prevent an alert creditor, upon learning of the receivership, from rushing posthaste to the courts to secure judgments for the satisfaction of its claims to the prejudice of the less alert creditors.

As between creditors, the key phrase is "equality is equity." When a corporation threatened by bankruptcy is taken over by a receiver, all the creditors should stand on an equal footing. Not anyone of them should be given any preference by paying one or some of them ahead of the others. This is precisely the reason for the suspension of all pending claims against the corporation under receivership. Instead of creditors vexing the courts with suits against the distressed firm, they are directed to file their claims with the receiver who is a duly appointed officer of the SEC. (Emphasis supplied).

Nevertheless, the suspension of the enforcement of all claims against the corporation is subject to the rule that it shall commence only from the time the Rehabilitation Receiver is appointed. Thus, in Rizal Commercial Banking Corporation v. Intermediate Appellate Court, 378 Phil. 10 (1999), the Court upheld the right of RCBC to extrajudicially foreclose the mortgage on some of BF Homes’ properties, and reinstated the trial court’s judgment ordering the sheriff to execute and deliver to RCBC the certificate of auction sale involving the properties. The Court vacated its previous Decision rendered on September 14, 1992 in the same case, finding that RCBC can rightfully move for the extrajudicial foreclosure of the mortgage since it was done on October 16, 1984, while the management committee was appointed only on March 18, 1985. The Court also took note of the SEC’s denial of the petitioner’s consolidated motion to cite the sheriff and RCBC for contempt and to annul the auction proceedings and sale.

In this case, respondent bank instituted the foreclosure proceedings against petitioner’s properties on March 13, 2002 and a Certificate of Sale at Public Auction was issued on May 6, 2002, with respondent bank as the highest bidder. The mortgage on petitioner’s chattels was likewise foreclosed and the Certificate of Sale was issued on May 14, 2002. It also appears that titles over the properties have already been transferred to respondent bank.

On the other hand, the petition for corporate rehabilitation was filed only on August 14, 2002 and the Rehabilitation Receiver appointed on August 20, 2002. Respondent bank, therefore, acted within its prerogatives when it foreclosed and bought the property, and had title transferred to it since it was made prior to the appointment of a rehabilitation receiver.

The fact that there is a pending case for the annulment of the foreclosure proceedings and auction sales is of no moment. Until a court of competent jurisdiction, which in this case is the RTC of Dumangas, Iloilo, Branch 68, annuls the foreclosure sale of the properties involved, petitioner is bereft of a valid title over the properties (Yulienco v. Court of Appeals, 441 Phil. 397, 409 (2002)). In fact, it is the trial court’s ministerial duty to grant a possessory writ over the properties.

Consequently, the CA was correct in upholding the RTC’s dismissal of the petition for rehabilitation in view of the fact that the titles to petitioner’s properties have already passed on to respondent bank and petitioner has no more assets to speak of, specially since petitioner does not dispute the fact that the properties which were foreclosed by respondent bank comprise the bulk, if not the entirety, of its assets.

It should be stressed that the Interim Rules was enacted to provide for a summary and non-adversarial rehabilitation proceedings (Rule 3, Section 1, Interim Rules of Procedure on Corporate Rehabilitation (2000). This is in consonance with the commercial nature of a rehabilitation case, which is aimed to be resolved expeditiously for the benefit of all the parties concerned and the economy in general.

As provided in the Interim Rules, the basic procedure is as follows:

(1) The petition is filed with the appropriate Regional Trial Court;

(2) If the petition is found to be sufficient in form and substance, the trial court shall issue a Stay Order, which shall provide, among others, for the appointment of a Rehabilitation Receiver; the fixing of the initial hearing on the petition; a directive to the petitioner to publish the Order in a newspaper of general circulation in the Philippines once a week for two (2) consecutive weeks; and a directive to all creditors and all interested parties (including the Securities and Exchange Commission) to file and serve on the debtor a verified comment on or opposition to the petition, with supporting affidavits and documents.

3) Publication of the Stay Order;

4) Initial hearing on any matter relating to the petition or on any comment and/or opposition filed in connection therewith. If the trial court is satisfied that there is merit in the petition, it shall give due course to the petition (Rule 4, Sec. 9);

5) Referral for evaluation of the rehabilitation plan to the rehabilitation receiver who shall submit his recommendations to the court;

6) Modifications or revisions of the rehabilitation plan as necessary (Rule 4, Secs. 20-22);

7) Submission of final rehabilitation plan to the trial court for approval;

8) Approval/disapproval of rehabilitation plan by the trial court;

In the present case, the petition for rehabilitation did not run its full course but was dismissed by the RTC after due consideration of the pleadings filed before it. On this score, the RTC cannot be faulted for its summary dismissal, as it is tantamount to a finding that there is no merit to the petition. This is in accord with the trial court’s authority to give due course to the petition or not under Rule 4, Section 9 of the Interim Rules. Letting the petition go through the process only to be dismissed later on because there are no assets to be conserved will not only defeat the reason for the rules but will also be a waste of the trial court’s time and resources.

The CA also correctly ruled that petitioner availed of the wrong remedy when it filed a special civil action for certiorari with the CA under Rule 65 of the Rules of Court.

Certiorari is a remedy for the correction of errors of jurisdiction, not errors of judgment. It is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. More importantly, since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy. A petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution, and a motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors.

The Omnibus Order dated January 13, 2003 issued by the RTC is a final order since it terminated the proceedings and dismissed the case before the trial court; it leaves nothing more to be done. As such, petitioner’s recourse is to file an appeal from the Omnibus Order.

In this regard, A.M. No. 00-8-10-SC promulgated by the Court on September 4, 2001 provides that a petition for rehabilitation is considered a special proceeding given that it seeks to establish the status of a party or a particular fact. Accordingly, the period of appeal provided in paragraph 19 (b) of the Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129 for special proceedings shall apply. Under said paragraph 19 (b), the period of appeal shall be thirty (30) days, a record of appeal being required.

However, it should be noted that the Court issued A.M. No. 04-9-07-SC on September 14, 2004, clarifying the proper mode of appeal in cases involving corporate rehabilitation and intra-corporate controversies. It is provided therein that all decisions and final orders in cases falling under the Interim Rules of Corporate Rehabilitation and the Interim Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799 shall be appealed to the CA through a petition for review under Rule 43 of the Rules of Court to be filed within fifteen (15) days from notice of the decision or final order of the RTC.

In any event, as previously stated, since what petitioner filed was a petition for certiorari under Rule 65 of the Rules, the CA rightly dismissed the petition and affirmed the assailed Orders.

X X X.


In the case of EDUARDO E. KAPUNAN, JR. vs. COURT OF APPEALS, et. al., G.R. Nos. 148213-17, March 13, 2009; and OSCAR E. LEGASPI vs. SERAFIN CUEVAS, G.R. No. 148243, March 13, 2009, which involved the 1986 extrajudicial killing of prominent Kilusang Mayo Uno (KMU) chairman Rolando Olalia, the Philippine Supreme Court held, among other things, that the defense of whether or not the two military officers indicted by the Department of Justice for murder were exempted from criminal liability, by virtue of an amnesty granted to them by the Philippine Government, was a factual issue and a matter of defense which must be presented during trial and was not a proper ground to quash the criminal Informations filed against them.

The petitioners asked the Supreme Court to consider “whether they were immune from prosecution for the Alay-ay/Olalia slayings by reason of a general grant of amnesty issued by President Fidel V. Ramos to rebels, insurgents and other persons who had committed crimes in furtherance of political ends.”

I wish to digest below the salient parts of the aforecited decision.

The Investigating Panel of the Department of Justice refused to consider petitioners’ defense of amnesty on the ground that documents pertaining to the amnesty failed to show that the Olalia-Alay-ay murder case was one of the crimes for which the amnesty was applied for. Moreover, the Panel pointed out that the criminal liability of petitioners was not obliterated by the amnesty granted to them. It was held that the killings were not committed in furtherance of a political belief because at that time, there was no rebellion yet launched against the Cory Aquino government. The rebellion mounted by the Reform the Armed Forces Movement (RAM) against the government was made long after the killing.

On appeal to the Supreme Court, the petitioners invoked as grounds for the allowance of their petition the Court of Appeals’ erroneous refusal to: (1) rule on the applicability of amnesty to him; and (2) the issue of whether the Olalia-Alay-ay double murder was committed in pursuit of a political belief.

In fine, the main issues raised by Kapunan and Legaspi may be synthesized into one, that is, “whether or not the grant of amnesty extinguished their criminal liability.”

Off hand, the Court held that as a rule it “refrains from interfering in the conduct of preliminary investigations and to leave the Department of Justice ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders.” Consistent with this policy, the Court stated that “courts do not reverse the Secretary of Justice’s findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion.”

Section 1 of Proclamation No. 347 reads, thus:

“Section 1. Grant of Amnesty. – Amnesty is hereby granted to all persons who shall apply therefore and who have or may have committed crimes, on or before thirty (30) days following the publication of this Proclamation in two (2) newspapers of general circulation, in pursuit of political beliefs, whether punishable under the Revised Penal Code or special laws, including but not limited to the following: rebellion or insurrection; coup d’ etat; conspiracy and proposal to commit rebellion, insurrection or coup d’ etat; disloyalty of public officers or employees; inciting to rebellion or insurrection; sedition; conspiracy to commit sedition; inciting to sedition; illegal assembly; illegal association; direct assault; indirect assault; resistance and disobedience to a person in authority or the agents of such person; tumults and other disturbances of public order; unlawful use of means of publication and unlawful utterances; alarms and scandals; illegal possession of firearms, ammunition or explosives, committed in furtherance of, incident to, or in connection with the crimes of rebellion or insurrection; and violations of Articles 59 (desertion), 62 (absence without leave), 67 (mutiny or sedition), 68 (failure to suppress mutiny or sedition), 94 (various crimes) 96 (conduct unbecoming an officer and a gentleman), and 97 (general article) of the Articles of War: Provided, that the amnesty shall not cover crimes against chastity and other crimes committed for personal ends.”

Section 1 of Proclamation No. 348, as amended by Section 1 of Proclamation No. 377, provides:

“Section 1. Grant of Amnesty. – Amnesty is hereby granted to all personnel of the AFP and PNP who shall apply therefor and who have or may have committed, as of the date of this Proclamation, acts or omissions punishable under the Revised Penal Code, the Articles of War or other special laws, in furtherance of, incident to, or in connection with counter-insurgency operations; Provided, that such acts or omissions do not constitute serious human rights violations, such as acts of torture, extra-legal execution, arson, massacre, rape, other crimes against chastity or robbery of any form; and Provided, That the acts were not committed for personal ends.” (Emphasis supplied)

Administrative Order No. 1-94, as amended, served as the implementing rules to the two proclamations.

The Court noted that the text of Proclamation No. 347 was sufficiently clear that members of the Armed Forces of the Philippines are indeed covered by the Proclamation.

Both petitioners had duly applied for amnesty with the National Amnesty Commission, and both had been issued amnesty certificates. However, an examination of these certificates reveals that the grant of amnesty was not as far-reaching as the petitioners imply.

The amnesty granted to Kapunan extends to acts constituting only one crime, rebellion. Thus, any inquiry whether he is liable for prosecution in connection with the Olalia killings will necessarily rely not on the list of acts or crimes enumerated in Section 1 of Proclamation No. 347, but on the definition of rebellion and its component acts.

The limited scope of the amnesty granted to Legaspi is even more apparent. At most, it could only cover offenses connected with his participation in the 1987 and 1989 coup attempts.

The Court noted that, on their face, the murders of Olalia and Alay-ay do not indicate they are components of rebellion. It is not self-explanatory how the murders of two private citizens could have been oriented to the aims of rebellion, explained in the Revised Penal Code as “removing from the allegiance to [the] Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

Assuming that Kapunan, Jr. was intent to invoke the amnesty granted him in his defense against the charges connected with the Olalia/Alay-ay slays, it would be incumbent upon him to prove before the courts that the murders were elemental to his commission or attempted commission of the crime of rebellion, and not just by way of a general averment, but through detailed evidence.

Friday, April 17, 2009

Obstruction of justice

The Philippine version of the anti-obstruction of justice law is Presidential Decree No. 1829 (1981), entitled “Penalizing the Obstruction of Apprehension and Prosecution of Criminal Offenders”.

On the premise that crime and violence continue to proliferate despite the sustained vigorous efforts of the government to effectively contain them and that to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, the law thought it necessary to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders.

Under Sec. 1 of the decree, the penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed “upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases” by committing any of the following acts:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.

If any of the acts mentioned above is penalized by any other law with a higher penalty, the higher penalty shall be imposed. If any of the foregoing acts is committed by a public official or employee, he shall in addition to the penalties provided thereunder, suffer perpetual disqualification from holding public office.

It is unfortunate that the prevailing (erroneous) belief among Filipino policemen is that since the offense of obstruction of justice is allegedly a “continuing offense”, they may arrest persons whom they suspect to be guilty of the said offense at any time even without a warrant of arrest issued by the courts.

In the case of ROGER POSADAS, et. al. vs. OMBUDSMAN, et. al., G.R. No. 131492. September 29, 2000, the Philippine Supreme Court upheld the supremacy of the constitutional rights of Filipino citizens over attempts by law enforcers to harass the lawyers and officials of the University of the Philippines (UP) whose only fault was to defend and protect the basic right of two of their college students (who were suspects in a fraternity-related death of a UP student) to be free from any form of search and seizure without valid warrants of arrest issued by the courts for the purpose. The National Bureau of Investigation (NBI) retaliated against the UP lawyers and officials by filing a criminal complaint against them for alleged violation of P.D. No. 1829.

Two issues were raised in the aforecited case, to wit: (1) Whether the attempted arrest of the student suspects by the NBI could be validly made without a warrant; and (2) Whether there was probable cause for prosecuting petitioners for violation of P.D. No. 1829.

The Supreme Court answered the questions in the negative.

Pursuant to Art. III, §2 of the Constitution, “no arrest may be made except by virtue of a warrant issued by a judge after examining the complainant and the witnesses he may produce and after finding probable cause to believe that the person to be arrested has committed the crime”.

The exceptions when an arrest may be made even without a warrant are provided in Rule 113, §5 of the Rules of Criminal Procedure, thus:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of the facts indicating that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

The arresting officers in this case did not witness the crime being committed. Neither were the students fugitives from justice nor prisoners who had escaped from confinement. The question was whether paragraph (b) applies because a crime had just been committed and the NBI agents had personal knowledge of facts indicating that the two students Narag and Taparan were probably guilty.

The NBI contended that a peace officer may, without a warrant, arrest a person "when an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it" and that a law enforcer “who had knowledge of facts gathered by him personally in the course of his investigation” may arrest a suspect without a warrant of arrest.

The Supreme Court however noted that in contrast, the NBI agents in the case at bar tried to arrest Narag and Taparan “four days after the commission of the crime”. They had “no personal knowledge of any fact” which might indicate that the two students were probably guilty of the crime. What they had were the “supposed positive identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant by the NBI”.

The Court took the occasion to explain what constitutes "personal knowledge" on the part of the arresting officers, thus:

"’Personal knowledge’ of facts in arrests without a warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion." The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.”

The Court noted that at the time the deceased UP student Dennis Venturina was killed in a fraternity-related incident, the NBI agents were nowhere near the scene of the crime. When the NBI agents attempted to arrest UP students Taparan and Narag, the latter were not committing a crime nor were they doing anything that would create the suspicion that they were doing anything illegal. On the contrary, Taparan and Narag, under the supervision of the U.P. police, were taking part in a peace talk called to put an end to fraternity-related violence on the campus.

The Court stressed that to allow the arrest which the NBI agents intended to make without warrant “would in effect allow them to supplant the courts”. The determination of the existence of probable cause that the persons to be arrested committed the crime was for the judge to make. The law authorizes a police officer or even an ordinary citizen to arrest criminal offenders only if the latter are “committing or have just committed a crime”. Otherwise, “we cannot leave to the police officers the determination of whom to apprehend if we are to protect our civil liberties”.

Art. III, §2 of the Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

The question was not whether petitioners had reasonable grounds to believe that the suspects were guilty. The question was whether the student suspects could be arrested even in the absence of a warrant issued by a court, considering that, as already explained, the attempted arrest did not fall under any of the cases provided in Rule 113, §5. Regardless of their suspicion, petitioners could not very well have authorized the arrest without warrant of the students or even effected the arrest themselves. Only courts could decide the question of probable cause since the students were not being arrested in flagrante delicto.

The aforecited case was an occasion for the Court to reiterate the doctrine that although as a rule a criminal prosecution may not be restrained or enjoined either through a preliminary or final injunction or a writ of prohibition and that ordinarily the Court does not interfere with the discretion of the Ombudsman or the Department of Justice to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts, there are, however, settled exceptions to this rule, to wit:

a. To afford protection to the constitutional rights of the accused (Hernandez vs. Albano, et al. L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. (1953), cited in Rañoa vs. Alvendia, CA G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577);

j. Where there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438); and

k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L- 6374, August 1, 1953) cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)

The Court added that, whether or not petitioner Posadas surrendered the student suspects to the NBI agents the following day is immaterial. In the first place, the petitioners were not sureties or bondsmen who could be held to their undertaking. In the second place, the fact remains that the NBI agents could not have validly arrested Taparan and Narag at the U.P. Police Station as they did not have a warrant at that time. Hence, only the NBI agents themselves could be faulted for their inability to arrest Taparan and Narag. If the NBI believed the information given to them by the supposed eyewitnesses, the NBI should have applied for a warrant before making the attempted arrest instead of taking the law into their own hands. That they chose not to and were prevented from making an arrest for lack of a warrant is their responsibility alone. Petitioners could not be held accountable therefor.

Notwithstanding the highly publicized death of UP student Dennis Venturina and the pressures faced by law enforcement agencies to effect immediate arrests and produce results without unnecessary delay, the Court nonetheless stressed that the need to enforce the law cannot be justified by sacrificing constitutional rights. The petitioners cannot be indicted because they dared to uphold the rights of the students. Hence, the Court saw no other recourse but to enjoin the Sandiganbayan and the Ombudsman from proceeding with the case against petitioners.

Monday, April 13, 2009

When may a non-lawyer litigate in court?

Reiterating a previous article that I had posted on the same subject matter, in the case of FERDINAND A. CRUZ vs. ALBERTO MINA, HON. ELEUTERIO F. GUERRERO and HON. ZENAIDA LAGUILLES, G.R. No. 154207, April 27, 2007, the Philippine Supreme Court interpreted, clarified and implemented:

(a) Section 34, Rule 138 of the Rules of Court,
(b) Bar Matter No. 730, Circular No. 19 governing law student practice, and
(c) Rule 138-A of the Rules of Court (Law Student Practice Rule).

The basic question was “whether the petitioner, a law student, may appear before an inferior court as an agent or friend of a party litigant.”

The courts a quo held that the Law Student Practice Rule as encapsulated in Rule 138-A of the Rules of Court, prohibits the petitioner, as a law student, from entering his appearance in behalf of his father, the private complainant in the criminal case without the supervision of an attorney duly accredited by the law school.

Section 1 of Rule 138-A provides that a law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.

Section 2 of the said Rule provides that the appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.

However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the Court En Banc clarified that the said Rule, however, is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer.

Section 34, Rule 138 provides that in the court of a justice of the peace, a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.

Thus, a law student may appear before an inferior court as an agent or friend of a party without the supervision of a member of the bar.

The phrase "in the court of a justice of the peace" in Bar Matter No. 730 is subsequently changed to "In the court of a municipality" as it now appears in Section 34 of Rule 138.

In Section 34 of Rule 138, the appearance of a non-lawyer, as an agent or friend of a party litigant, is expressly allowed, while Rule 138-A provides for conditions when a law student, not as an agent or a friend of a party litigant, may appear before the courts.

Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed, irrespective of whether or not he is a law student.

As succinctly clarified in Bar Matter No. 730, by virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant, without the supervision of a lawyer before inferior courts.

Friday, April 3, 2009

Death squads

During an election-related law seminar sponsored in 2004 by the Lawyers For Reform (a movement of lawyers also called Lawyers For Roco which supported the presidential candidacy of the late Sen. Raul Roco, of which I was a co-convenor), I had the occasion to meet Atty. Leila de Lima.

She is now the brave and visionary Chairperson of the Human Rights Commission of the Republic of the Philippines.

At that time, she was known as an election law expert and practitioner.

I found her to be soft-spoken, warm, friendly, modest, humble, articulate, and intelligent. (Her law school should be proud of her [San Beda College of Law]).

I am glad that CHR Chairperson Leila de Lima is courageously performing her constitutional duty and mandate to defend Human Rights in the country, particularly in cities in Mindanao where death squads and vigilantes operate with the subtle and implied but effective support of criminal-minded local political leaders and police and military officers.

The once beautiful City of Davao has now become fearsome, its serene image splashed with the blood of victims of extrajudicial killings and numbed by the tears of their bereaved families.

The City of Davao is led by a war-freak and trigger-happy mayor, Rodrigo Duterte.

He is a former public prosecutor and a member of the Philippine Bar whose sense of the rule of law and administration of justice is perverted and despicable.

I am ashamed to have Duterte as a brother in the noble legal profession.

His public pronouncements during media interviews sicken me, as they sicken all sane and intelligent Filipinos who love and cherish democracy and freedom in the country.

His words speak of war, death, violence, blood, hate, anger, dictatorship, and the conceit of a deluded person intoxicated by political power and by the smell of gun powder.

They are the very same unconscionable attributes of his equally deluded political idol and protector, the illegitimate Philippine President Gloria Arroyo.

Below is a recent editorial of the Philippine Daily Inquirer on the matter.


Enabling Duterte

Philippine Daily Inquirer
First Posted 01:31:00 04/03/2009

The key to understanding Davao City Mayor Rodrigo Duterte, the self-proclaimed herald of peace and order in the country’s most sprawling city, is not to distinguish between what he says and what he does. That would make him merely an ordinary politician, swimming in the waters of hypocrisy. The trick is to understand that he means exactly what he says; he is soaked in sincerity. There is no difference between his person and his public persona.

When he says, as he did at a city assembly last February, that criminals ought to be assassinated, his constituents know that he isn’t merely paying lip service to the organizing principle of the tough-on-crime set. “If you are doing an illegal activity in my city, if you are a criminal or part of a syndicate that preys on the innocent people of the city, for as long as I am the mayor, you are a legitimate target of assassination.”

A legitimate target of assassination — he sounds almost like a covert operative, discussing the failings of foreign heads of state. But in fact he is the head of government in Davao City, explaining the rationale for the gangland-style “rubout” of criminals preying on innocent people.

To drive the point home, Duterte at the February forum also warned those resisting arrest that he would order the police to “shoot you and aim for your head to make sure that you are dead.”

Here’s the thing: The citizens of Davao take him at his word. Is it any wonder that it is “his” city that suffers the highest number of unsolved gangland-style murders in the country? The Commission on Human Rights (CHR) this week started an investigation into what CHR Chair Leila de Lima called “the most audacious spate of localized criminal violations against the right to life in our times.” This killing spree, laid by many (even by some of those who approve of the executions) at the door of the so-called Davao Death Squad, has claimed 814 lives since 1998—33 in February 2009 alone.

Duterte and other city officials have denied any involvement in the killings. Indeed, we can almost say that the official communication policy of the shield-the-mayor-from-any-liability gang is to claim that he is in fact a liar, that when he warns criminals that they are legitimate targets of assassination he is merely playing to the gallery. Entertaining the public?

Without a hint of irony, Duterte and other city officials say the hundreds of killings were caused by gang wars and the like. But if this were even remotely true, it would make Davao a hot zone of instability, instead of the beacon of peace and order Duterte claims it to be.

What I want is to instill fear,” President Gloria Macapagal-Arroyo’s former adviser on peace and order said at that February assembly. “If it will send the wrong signals, then I am sorry. But what wrong did I commit?”

But that’s precisely the point. He is sending exactly the right signals. The criminals know it; the vigilantes know it; the citizens of Davao City know it.
At the start of the CHR probe, De Lima challenged the city’s citizens to come forward saying, “I know that it is impossible for all of you not to know anything at all about the rash of vigilante killings that have remained the outstanding quality of Davao City.” (Sometimes, a little sarcasm goes a long way.)

De Lima’s placing of the burden — of evidence or of exoneration, of explaining the vigilante killings away or stopping them altogether — on the citizenry is severe, but it is the right tack to take.

In her courageous opening statement, De Lima asked whether the “peace and order” Davao is said to enjoy was worth the price of hundreds of summary killings: “What peace, what order does the local government gift to the people of Davao City at the expense of the same rights that are granted to law-abiding persons?”

She ended with a challenge: “I dare, yet again, say that even here in Davao City there are those who believe it [the spree of vigilante killings] is shockingly intolerable. Among yourselves, government officials and private citizens alike, there are those who believe that this is intolerable. What peace, what order, do we gift to the people of Davao City if no one is free to speak their intolerance for vigilante killings for fear for their own lives?”

That silence allows Duterte to speak his mind.


Reform the IBP

At long last, the national office of the Integrated Bar of the Philippines (IBP), after a long silence, has finally submitted its official comment to my pending petition in the Supreme Court, docketed as Bar Matter No. 1696 (circa 2007), that seeks to institute major reforms in the organizational structure and leadership succession of the IBP nationwide and in the composition, objectives and programs of the IBP House of Delegates. I wish to reproduce the IBP comment in full below.

I am also reproducing below the recent endorsement of the Chief Justice to the IBP national office of my previous letter that seek to adopt as a policy the regular consultation with all local voluntary bar associations nationwide on all future matters, programs and policies that affect the Bar.

Republic of the Philippines

Re: Letter of Atty. Manuel J. Laserna Jr.
Campaign to Introduce Certain Amendment
To Rule 139-A


The Integrated Bar of the Philippines (IBP), thru the undersigned counsel, in compliance with the resolution of the honorable Court dated February 3, 2009, respectfully files its Comment on the two (2) letters of Atty. Manuel Laserna Jr., as follows:

I. On the Proposed Reforms in the Integrated Bar of the Philippines (March 14, 2007 Letter)

1. The proposed reforms in this letter of Atty. Laserna Jr. have been included in the agenda of the IBP National Convention on March 68-28, 2009 in Bacolod City.

2. While we agree with the wisdom of the reforms proposed in his letter of March 14, 2007, it is best that the membership of the Integrated Bar of the Philippines be consulted, as it might be necessary to carve out exceptions to the general rules proposed by Atty. Laserna.

3. The Integrated Bar of the Philippines will inform the Honorable Court of the action taken by the IBP National Convention with regard to the proposals.

II. On the Petition to Amend Rule 139-A of the Rules of Court (Letter of February 28, 2007)

4. This petition will also be referred to the IBP National Convention set for March 26-28, 2009 for comment.

5. The proposal in the petition would restructure the composition of the local IBP Chapters nationwide as presently provided for in the Rules of Court and in the By-Laws of the Integrated Bar of the Philippines. This is therefore an urgent need to sound out the members of the IBP Chapters involved.

6. Radical reforms of this nature should be initiated from the grassroots level, instead of coming from the court.

7. In this respect, we adopt the suggestion of the proponent that chapter representatives from the different IBP Regions and external consultants from active law NGOs and law schools be invited to participate in the deliberations of the Supreme Court Committee.

Respectfully submitted.

Pasig City for Manila, March 20, 2009.

IBP Building
#15 Julia Vargas Avenue, Ortigas Center
Pasig City

General Counsel
Roll of Attorney No. 16609/06/07/61
IBP Lifetime Member No. 251
PTR No. 1576217/01/12/09/Makati
MCLE Exempt
c/o Agabin Versola Hermoso Law Office
26/F Pacific star Building
Gil Puyat Ave., cor. Makati Avenue
Makati City

Copy furnished:

Atty. Ma. Cristina B. Layusa
Deputy Clerk of Court and Bar Confidant
Supreme Court

Atty. Manuel J. Laserna Jr.
Laserna Cueva-Mercader & Associates Law Offices
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Las Pinas City

Atty. Antonio Manzano
Chairman, Las Pinas City Bar Association
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Las Pinas City


The undersigned counsel respectfully manifests that the forgoing compliance is being served by registered mail due to time constraint and distance between the places of service.


Supreme Court of the Philippines

Reynato S. Puno

1ST Indorsement
March 23, 2009

Referred to Atty. Feliciano M. Bautista, National President of the Integrated Bar of the Philippines (IBP), for appropriate action, the attached letter dated March 16, 2009 received by the Office of the undersigned on March 20, 2009, of Atty. Manuel J. Laserna Jr., Founder and Board Consultant, suggesting that in all major issuances and new policies or activities of the Supreme Court which may affect the Bar, the Voluntary Local Bar Associations nationwide be consulted, in addition to the usual consultation that the Supreme Court makes with the mandatory Integrated Bar of the Philippines.


Copy furnished:

Atty. Manuel J. Laserna Jr.
Las Pinas City Bar Association

Unit 15, Star Arcade, C.V. Starr Avenue
Philamlife Village, Las Pinas City 1743

Thursday, April 2, 2009

New lawyers

The Supreme Court will release the results of the 2008 Bar examinations on April 3, 2009.

Justice Dante O. Tinga was the Chairperson of the 2008 Committee on Bar Examinations.

The results can be viewed simultaneously at, the official website of the High Court.

A total of record 6,364 law graduates from 109 law schools nationwide took and finished the exams held in September, 2008 at the De La Salle University in Manila.

The Rules of Court provide that “a candidate may be deemed to have passed his examination successfully if he has obtained a general average of 75% in all subjects without falling below 50% in any subject.”

In determining the average, subjects in the examinations are given the following relative weights:

Political and International Law, 15%; Labor and Social Legislation, 10%; Civil Law, 15%; Taxation, 10%; Mercantile Law, 15%; Criminal Law, 10%; Remedial Law, 20%; and Legal Ethics and Practical Exercises, 5%, for a total of 100%.

The following are the statistics on the Bar exams results for the past eight years:

Year Total Number of Examinees Total Number of Those Who Passed Percentage

2007 5,626 1,289 22.91
2006 6,187 1,893 30.60%
2005 5,607 1,526 27.22%
2004 5,249 1,659 31.61%
2003 5,349 1,108 20.71%
2002 4,659 917 19.68%
2001 3,849 1,266 32.89%
2000 4,698 979 20.84%

Source : Supreme Court website