NOTES ON LEGAL EDUCATION
IN THE PHILIPPINES
BY
Atty. Manuel J. Laserna Jr.
Laserna Cueva-Mercader Law Offices
Las Pinas City Bar Association (LPBA), Inc.
http://attylaserna.blogspot.com
R.A. No. 7662
In 1993, the Philippine Congress passed Republic Act No. 7662, entitled the "Legal Education Reform Act of 1993."
Based on the declared the policies of the Philippines as a state to uplift the standards of legal education in order to prepare law students for advocacy, counseling, problem-solving, and decision-making, to infuse in them the ethics of the legal profession; and to impress on them the importance, nobility and dignity of the legal profession as an equal and indispensable partner of the Bench in the administration of justice and to develop social competence, the Legal Education Board created by the law was tasked to undertake appropriate reforms in the legal education system, require proper selection of law students, maintain quality among law schools, and require legal apprenticeship and continuing legal education.
(Note: It is the Supreme Court and not the Legal Education Board that prepares, adopts, approves and implements the rule on mandatory continuing legal education (MCLE), pursuant to the constitutional powers of the Supreme Court under Article VIII of the 1987 Philippine Constitution).
The law enumerates the specific objectives of legal education as follows:
(1) to impart among law students a broad knowledge of law and its various fields and of legal institutions;
(2) to enhance their legal research abilities to enable them to analyze, articulate and apply the law effectively, as well as to allow them to have a holistic approach to legal problems and issues;
(3) to prepare law students for advocacy, counseling, problem-solving and decision-making, and to develop their ability to deal with recognized legal problems of the present and the future;
(4) to develop competence in any field of law as is necessary for gainful employment or sufficient as a foundation for future training beyond the basic professional degree, and to develop in them the desire and capacity for continuing study and self-improvement;
(5) to inculcate in them the ethics and responsibilities of the legal profession; and
(6) to produce lawyers who conscientiously pursue the lofty goals of their profession and to fully adhere to its ethical norms.
Under the law, the Legal Education Board is attached solely for budgetary purposes and administrative support to the Department of Education. It is composed of a Chairman, who is preferably a former justice of the Supreme Court or Court of Appeals, and the following as regular members: a representative of the Integrated Bar of the Philippines (IBP); a representative of the Philippine Association of Law Schools (PALS); a representative from the ranks of active law practitioners; and, a representative from the law students' sector. The Secretary of the Department of Education, Culture and Sports, or his representative, is an ex officio member of the Board. The Chairman and regular members of the Board are appointed by the President for a term of five (5) years without reappointment from a list of at least three (3) nominees prepared, with prior authorization from the Supreme Court, by the Judicial and Bar Council, for every position or vacancy, and no such appointment needs confirmation by the Commission on Appointments. Of those first appointed, the Chairman and the representative of the IBP shall hold office for five (5) years, the representatives of the PALS and the PALP, for three (3) years; and the representative from the ranks of active law practitioners and the representative of the law students' sector, for one (1) year, without reappointment. The Chairman and regular members of the Board have the same salary and rank as the Chairman and members, respectively, of the Constitutional Commissions.
The law enumerates the powers and functions of the Board as follows:
(a) to administer the legal education system in the country in a manner consistent with the provisions of this Act;
(b) to supervise the law schools in the country, consistent with its powers and functions as herein enumerated;
(c) to set the standards of accreditation for law schools taking into account, among others, the size of enrollment, the qualifications of the members of the faculty, the library and other facilities, without encroaching upon the academic freedom of institutions of higher learning;
(d) to accredit law schools that meet the standards of accreditation;
(e) to prescribe minimum standards for law admission and minimum qualifications and compensation of faculty members;
(f) to prescribe the basic curricula for the course of study aligned to the requirements for admission to the Bar, law practice and social consciousness, and such other courses of study as may be prescribed by the law schools and colleges under the different levels of accreditation status;
(g) to establish a law practice internship as a requirement for taking the Bar which a law student shall undergo with any duly accredited private or public law office or firm or legal assistance group anytime during the law course for a specific period that the Board may decide, but not to exceed a total of twelve (12) months. For this purpose, the Board shall prescribe the necessary guidelines for such accreditation and the specifications of such internship which shall include the actual work of a new member of the Bar.
(h) to adopt a system of continuing legal education. For this purpose, the Board may provide for the mandatory attendance of practicing lawyers in such courses and for such duration as the Board may deem necessary; and
(i) to perform such other functions and prescribe such rules and regulations necessary for the attainment of the policies and objectives of this Act.
Educational institutions may not operate a law school unless accredited by the Board. Accreditation of law schools may be granted only to educational institutions recognized by the Government. The Board may withdraw or downgrade the accreditation status of a law school if it fails to maintain the standards set for its accreditation status.
(Note: In the USA, it is the American Bar Association that accredits and rates American law schools).
The law created a special endowment fund, known as the Legal Education Fund, which is under the control of the Board, and administered as a separate fund by the Social Security System (SSS) which invests the same with due and prudent regard to its solvency, safety and liquidity. To form part of the Legal Education Fund, the amount of Ten Million Pesos (P10,000,000.00) was appropriated annually for a period of ten (10) years (1994-2004). Further, the Fund is supported by sixty percent (60%) of the privilege tax paid by every lawyer effective Fiscal Year 1994; and from such donations, legacies, grant-in-aid and other forms of contributions received by the Board for the purposes of the law. Being a special endowment fund, only the interests earned on the Legal Education Fund is used exclusively for the purposes of the law, including support for faculty development grants, professorial chairs, library improvements and similar programs for the advancement of law teaching and education in accredited law schools. The Fund is also used for the operation of the Board. For this purpose, an amount not exceeding ten percent (10%) of the interest on the Fund is utilized.
Rule 138: Admission to the Philippine Bar
Rule 138 of the Rules of court provides that “every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.” (Sec. 2).
All applicants for admission other than those referred to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law ,school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accom¬panied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. (Sec. 5).
No applicant shall be admitted to the bar examination unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics. (Id.).
No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, English, Spanish, history and economics. (Sec. 6).
Bar examinees shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation: Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing).
The bar examinations shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners (now held on the four [4] Sundays of November of each year). The subject shall be distributed as follows: First day: Political and International Law (morning) and Labor and Social Legislation (afternoon); Second day: Civil Law (morning) and Taxation (afternoon); Third day: Mercantile Law (morning) and Criminal Law (afternoon); Fourth day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon). (Sec. 11).
Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. (Sec. 12).
In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law, 10 per cent: Political and International Law, 15 per cent; Taxation, 10 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent. (Sec. 14).
Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school.
The professors of the individual review subjects attended by the candidates under this rule certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject. (Sec.16).
(Note: Under B.M. No. 1161, June 8, 2004, Re: Reform in the Bar Examinations, a candidate who has failed three (3) examinations may take a fourth and a fifth examinations if he successfully completes a one (1) year refresher course for each examination. Under the new rule, a candidate who has already failed in five (5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course. If he again fails that final chance, he must take the entire law course all over again).
Rule 138 enumerates the duties of an attorney as follows:
(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law;
(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;
(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law. (Sec. 20).
The foregoing duties must be correlated to the lawyer’s oath, thus:
"I,_____________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God." (Sec. 3).
Rule 138-A: Clinical Legal Education Program
Under Rule 138-A of the Rules of Court, the Supreme Court approves the clinical legal education programs of Philippine law schools, subject to the following adjustments/requirements:
1. Only students who have passed Civil Procedure, Criminal Procedure, Evidence, Special Proceedings, Legal Forms, and Legal Ethics may be enrolled in the program, subject to the requirements set forth in Rule 138-A of the Rules of Court;
2. Only students who have completed the 3rd year of the regular four-year prescribed law curriculum may be enrolled in the program; and
3. The amount of the allowance given to students should be minimal in compliance with the provision of the law that students should appear without any compensation. (For example, see: B.M. No. 1489 , November 15, 2005, RE: CLINICAL LEGAL EDUCATION PROGRAM OF THE MARCELO H. DEL PILAR, COLLEGE OF LAW, BULACAN STATE UNIVERSITY).
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.
The appearance of the law student shall be under, the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. All pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervening attorney for and in behalf of the legal clinic.
The rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic.
The law student shall comply with the standards of professional conduct governing members of the Bar.
Failure of a supervising attorney to provide adequate supervision to the law students enrolled in the program may be a ground for disciplinary action. (SC Circular No. 19, prom. Dec. 19, 1986.)
Corollary to this, Sec. 34, Rule 138, provides that in the court of a municipality 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.
Under Sec. 31, Rule 138, a court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. (Sec. 31, Rule 138).
Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. But the amounts thereof as provided in sec. 31, Rule 138, are embarrassingly impoverished, thus: “Whenever such compensation is allowed, it shall not be less than thirty pesos (P30) in any case, nor more than the following amounts: (1) Fifty pesos (P50) in light felonies; (2) One hundred pesos (P100) in less grave felonies; (3) Two hundred pesos (P200) in grave felonies other than capital offenses; (4) Five hundred pesos (P500) in capital offenses.” (Sec. 31, Id.).
B.M. No. 1161 (2004): Bar Examinations Reform
Since 2004, the Supreme Court has attempted to reform the bar examinations. The reforms stated in B.M. No. 1161, June 8, 2004 are enumerated hereinbelow.
For implementation within one (1) up to two (2) years:
1. Initial determination by the Chairman of admission to the bar examinations of candidates (on the merits of the each case) to be passed upon by the Court en banc.
2. Submission by law deans of a certification that a candidate has no derogatory record in school and, if any, the details and status thereof.
3. Disqualification of a candidate after failing in three (3) examinations, provided, that he may take a fourth and fifth examination if he successful completes a one (1) year refresher course for each examination; provided, further, that upon the effectivity of this Resolution, those who have already failed in five(5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course.
4. Promulgation of disciplinary measures for those involved in (a) attempts to violate or vitiate the integrity and confidentiality of the bar examination process; (b) improper conduct during the bar examination; and (c) improper conduct of "bar examinations."
5. Disqualification of a Bar Examination Chairperson:
5.1. kinship with an examinee who if his or her spouse or relative within the third civil degree of consanguinity;
5.2. having a member of his or her office staff as an examinee, or when the spouse or child of such staff member is an examinee; and
5.3. being a member of the governing board, faculty or administration of a law school.
6. Desirable qualifications of Examiners:
6.1. membership in good standing in the Philippine Bar;
6.2. competence in the assigned subject;
6.3. a teacher of the subject or familiarity with the principles of test construction; and
6.4. commitment to check test papers personally and promptly pending the creation and organization of the readership panels provided for in item B(6) below
7. Disqualifications of Examiners:
7.1. kinship with an examinee who is his or her spouse or relative within the third civil degree of consanguinity or affinity;
7.2. having a member of his or her office staff as an examinee; or when the spouse or child of such staff member is an examinee;
7.3. being a member of the governing board, faculty or administration of a law school;
7.4. teaching or lecturing in any law school, institution or review center during the particular semester following the bar examinations;
7.5. having any interest or involvement in any law school, bar review center or group; and
7.6. suspension or disbarment from the practice of law or the imposition of any other serious disciplinary sanction.
8. Personal preparation, by handwriting or using a typewriter, of fifty (50) main questions, excluding subdivisions, and their submission to the Chairperson in sealed envelope at least forty-five (45) days before the schedule examination on any particular subject; examiners should not use computers in preparing questions;
9. Apportionment of examination questions among the various topics covered by the subject;
10. Burning and shredding of rough drafts and carbon papers used in the preparation of questions or in any other act connected with such preparation;
11. Publication of names candidates admitted to take the bar examinations;
12. Disqualification of a candidate who obtains a grade below 50% in any subject;
13. Fixing at June 30 of the immediately preceding year as the cut-off date for laws and Supreme Court decisions and resolutions to be included in the bar examinations; and
14. Consideration of suggested answers to bar examinations questions prepared by the U.P. Law Center and submitted to the Chairperson.
For implementation within two (2) years up to five (5) years:
1. Adoption of objective multiple-choice questions for 30% to 40% of the total number of questions;
2. Formulation of essay test questions and "model answers" as part of the calibration of test papers;
3. Introduction of performance testing by way of revising and improving the essay examination;
4. Designation of two (2) examiners per subject depending on the number of examinees ;
5. Appointment of a tenured Board of Examiners with an incumbent Supreme Court Justice as Chairperson;
6. Creation and organization of readership panels for each subject area to address the issue of bias or subjectivity and facilitate the formulation of test questions and the correction of examination booklets; and
7. Adoption of the calibration method in the corrections of essay questions to correct variations in the level of test standards.
For implementation within five (5) years and beyond is the further computerization or automation of the bar examinations to facilitate application, testing, and reporting procedures.
Items not covered by the resolution, such as those that pertain to a possible review of the coverage and relative weights of the subjects of the bar examinations, are maintained.
For referral to the Legal Education Board:
1. Accreditation and supervision of law schools.
2. Inclusion of a subject on clinical legal education in the law curriculum, including an apprenticeship program in the Judiciary, prosecution service, and law offices.
3. Imposition of sanctions on law schools that fail to meet the standards as may be prescribed by the Legal Education Board.
4. Mandatory Law School Admission Test.
University of the East vs. Romeo A. Jader,
G.R. No. 132344, February 17, 2000.
May an educational institution be held liable for damages for misleading a student into believing that the latter had satisfied all the requirements for graduation when such is not the case? The Supreme Court answered the question in the affirmative.
The Court held that when a student is enrolled in any educational or learning institution, a “contract of education” is entered into between said institution and the student. The professors, teachers or instructors hired by the school are considered “merely as agents and administrators tasked to perform the school’s commitment under the contract”. Since the contracting parties are the school and the student, the latter is not duty-bound to deal with the former’s agents, such as the professors with respect to the status or result of his grades, although nothing prevents either professors or students from sharing with each other such information.
Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, could not be said to have acted in good faith. Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious. It was the school that had access to those information and it was only the school that could compel its professors to act and comply with its rules, regulations and policies with respect to the computation and the prompt submission of grades. Students did not exercise control, much less influence, over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the school’s rules and orders. Being the party that hired them, it was the school that exercised general supervision and exclusive control over the professors with respect to the submission of reports involving the students’ standing. Exclusive control means that no other person or entity had any control over the instrumentality which caused the damage or injury.
The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and the supervision of faculty and student services. He must see to it that his own professors and teachers, regardless of their status or position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submitting a student’s grade, is not only imputable to the professor but is an act of the school, being his employer.
The Court cited Articles 19 and 20 of the Civil Code:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.
Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. In civilized society, men must be able to assume that others will do them no intended injury – that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society. Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Jksm â Ó
Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages. Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable. Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student’s grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioner’s liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course.
Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it. The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit. If mere fault or negligence in one’s acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse.
However, the Court stated that while petitioner was guilty of negligence and thus liable to respondent for the latter’s actual damages, it held that respondent should not have been awarded moral damages by the lower courts. The Court did not agree with the Court of Appeals’ findings that respondent suffered shock, trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations. As a senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those pertaining to his academic achievement, were in order. Given these considerations, the Court failed to see how respondent could have suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he had satisfied all the requirements including his school records, before preparing himself for the bar examination. Certainly, taking the bar examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites of documentation and submission of requirements which the prospective examinee must meet, the Court added.
FERDINAND A. CRUZ vs. JUDGE PRISCILLA MIJARES, et. al.,
G.R. No. 154464, September 11, 2008.
In the case of Cruz vs. Judge Mijares, G.R. No. 154464, September 11, 2008, the Supreme Court held that under Bar Matter 730, in relation to Section 34 of Rule 138, “a law student may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts”. The Court recognized the right of an individual to represent himself in any case to which he is a party. Sec. 34 of Rule 138 states that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, he runs the risk of falling into the snares and hazards of his own ignorance. In the case at bar, the petitioner Cruz was the plaintiff, at his own instance, in Civil Case No. 01-0410 before the Regional Trial Court of Pasay City. He would then be acting not as a counsel or lawyer, “but as a party exercising his right to represent himself”.
On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his appearance for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally.
Rule 138-A, or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. – 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.
Sec. 2. Appearance. – 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.
The respondent court held that the petitioner could not appear for himself and on his behalf because of his failure to comply with Rule 138-A. In denying petitioner’s appearance, the court a quo tersely found refuge in the fact that, on December 18, 1986, this Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to prove on record that he was enrolled in a recognized school’s clinical legal education program and was under supervision of an attorney duly accredited by the law school.
However, the petitioner insisted that the basis of his appearance was Section 34 of Rule 138, which provides:
Sec. 34. By whom litigation is conducted. - 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.
and is a rule distinct from Rule 138-A.
From the clear language of this provision of the Rules, the Court conceded that the contention of the petitioner had merit. The Court recognized the right of an individual to represent himself in any case to which he was a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, he, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. In the case at bar, Cruz who was the plaintiff, at his own instance, in Civil Case No. 01-0410 before the Regional Trial Court of Pasay City was “acting not as a counsel or lawyer, but as a party exercising his right to represent himself”.
The trial court must have been misled by the fact that the petitioner was a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of the petitioner’s claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non-lawyer as a party representing himself.
The Court held that the conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No. 19 was misplaced. The Court never intended to repeal Rule 138 when it released the guidelines for limited law student practice. In fact, it was intended as an addendum to the instances when a non-lawyer may appear in courts and was incorporated to the Rules of Court through Rule 138-A.
It may be relevant to recall that, in respect to the constitutional right of an accused to be heard by himself and counsel, the Court has held that during the trial, the right to counsel cannot be waived. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.
The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous concern that the Constitution accords the accused in a criminal prosecution obviously did not obtain in a civil case. Thus, a party litigant in a civil case, who insists that he can, without a lawyer’s assistance, effectively undertake the successful pursuit of his claim, may be given the chance to do so. In this case, petitioner alleges that he was a law student and impliedly asserted that he had the competence to litigate the case himself. Evidently, he was aware of the perils incident to this decision.
In addition, it was subsequently clarified that under Bar Matter 730, in relation to Section 34, Rule 138, “a law student may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts”. In the case at bar, petitioner Cruz “was a law student who, as party litigant, wished to represent himself in court”. The Court said it should grant his wish.
June 30, 2009
Tuesday, June 30, 2009
Monday, June 29, 2009
Legal aid
Good news for Filipino lawyers. The Supreme Court deferred until December 31, 2009 the implementation of the Rule on Mandatory Legal Aid Service, which should have taken effect on July 1. Instead, the Rule will take effect on January 1, 2010 provided its implementing regulations have been published prior to the said date.
In an En Banc resolution, the Court directed the Integrated Bar of the Philippines (IBP) Board of Governors to finalize and submit the draft implementing regulations for the final approval of this Court as soon as possible. Likewise, it directed the IBP to submit its comment on the Rule itself, particularly on the concerns that rendition of free legal aid service should be voluntary and that the Rule will spawn litigations and clog court dockets and other related concerns.
Under the Rule, every practicing lawyer will be mandated to render a minimum of 60 hours of free legal aid services to indigent litigants yearly, among others.
The Rule is aimed at enhancing “the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them.”
In an En Banc resolution, the Court directed the Integrated Bar of the Philippines (IBP) Board of Governors to finalize and submit the draft implementing regulations for the final approval of this Court as soon as possible. Likewise, it directed the IBP to submit its comment on the Rule itself, particularly on the concerns that rendition of free legal aid service should be voluntary and that the Rule will spawn litigations and clog court dockets and other related concerns.
Under the Rule, every practicing lawyer will be mandated to render a minimum of 60 hours of free legal aid services to indigent litigants yearly, among others.
The Rule is aimed at enhancing “the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them.”
Notarial violations
In the very recent case of AC No. 7036, Judge Laquindanum v. Atty. Quintana, June 26, 2009, which is summarized in the Philippine Supreme Court website (www.sc.judiciary.gov.ph), the Court revoked the notarial commission of Atty. Nestor Q. Quintana and disqualified him from being commissioned as notary public for a period of two years. Likewise, he was suspended from the practice of law for six months effectively immediately and was warned that a repetition of the same would be dealt more severely.
Atty. Quintana violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility when he has notarized documents outside the area of his commission as notary public, performed notarial acts with an expired commission, allowed his wife to notarize documents in his absence, and notarized a document where one of the signatories there was already dead at that time.
The High Court also said that Atty. Quintana “fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.”
Atty. Quintana violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility when he has notarized documents outside the area of his commission as notary public, performed notarial acts with an expired commission, allowed his wife to notarize documents in his absence, and notarized a document where one of the signatories there was already dead at that time.
The High Court also said that Atty. Quintana “fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.”
Ignorance
In the very fresh cases of AM No. RTJ-07-2063, Republic v. Judge Caguioa; AM No. RTJ-07-2064, CIR v. Judge Caguioa; and AM No. RTJ-07-2066, Burns Jr. v. Judge Caguioa, June 2009, the Philippine Supreme Court dismissed veteran trial judge Ramon S. Caguioa whose sala is located in the lucrative city of Olongapo, the site of the rich Subic Freeport where multi-billion companies do business.
According to an item in the Supreme Court website, the Court has dismissed the Judge Ramon S. Caguioa, presiding judge of the Olongapo City RTC, Branch 74, for gross ignorance of the law and conduct prejudicial to the best interest of the service.
In a 31-page per curiam consolidated decision, the Court ordered the forfeiture of Judge Caguioa’s retirement benefits, except accrued leave credits. Judge Caguioa was faulted for his erroneous issuances of writ of preliminary injunctions in cases pending before his sala.
“Ignorance of the law is the mainspring of injustice. Judges are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. Basic rules should be at the palm of their hands their inexcusable failure to observe basic laws and rules will render them administratively liable,” the Court said.
The first administrative case stemmed from the civil case Indigo Distribution Corp. Inc v. Secretary of Finance filed before Judge Caguioa’s court. Indigo, et al., importers and traders licensed to operate inside the Subic Bay Freeport Zone, have been granted by Subic Bay Metropolitan Authority (SBMA) certificates of registration and tax exemptions.
Indigo, et al. filed a case before Judge Caguioa’s sala when SBMA, pursuant to RA 7227 (An Act Accelerating the Conversion of Military Reservations into Other Public uses, Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other Purposes), subsequently required them to pay corresponding duties and taxes on their importation of cigars, cigarettes, liquors and wines
Judge Caguioa granted Indigo’s petition for the issuance of writ of preliminary injunction and approved the injunction bond amounting to PhP1 million for all petitioners. During the pendency of Republic’s appeal before the High Court, Judge Caguioa granted various ex parte motions for interventions of different corporations claiming to be similarly situation with Indigo and allowed them to ride on the injunctive bond posted by Indigo. The High Court subsequently declared the assailed order of judge null and void citing for grave abuse of discretion.
The High Court ruled that taxes are the lifeblood of the government and it is of public interest that the collection of which should not be restrained. It held that the applicants for the writ showed no clear and unmistakable right that was material and substantial to warrant the issuance of writ, nor the urgency and necessity of such. Worst, Judge Caguioa, in his issuance of the said writ, had failed to observe due process when the Office of the Solicitor General (OSG), representing the Republic, was not served copies of the motions for intervention.
In a similar case, Judge Caguioa erroneously issued a temporary restraining order and writ of preliminary injunction in the petition for mandamus filed by District Collector of Customs in the Port of Subic Andres D. Salvacion, Jr. against his then would-be replacement Gracia Z Caringal, et al. Subsequently, he enjoined the CIR and the Finance Secretary to observe and respect his issuances.
On appeal, the CA ruled that Judge Caguioa should have dismissed the case for improper venue. The CA said that the petition for mandamus, which relates to the acts of officers, must be filed in the RTC exercising jurisdiction over the territorial area covering said officers, which in this case was Manila because the main office of Commission was in Manila.
The High Court said that Judge Caguioa’s issuance of the writ in the above case did not satisfy the legal requisite for its issuances and was enforced outside his territorial jurisdiction. It upheld the CA ruling that the applicant had failed to establish that he has a clear and unmistakable right that was violated so as to warrant the issuance of an injunction.
Judge Caguioa was also found guilty of simple misconduct and ordered suspended from office without pay for three months in a third administrative case which stemmed from another civil case. The case against his co-respondent Sheriff Christopher T. Perez, however, was dismissed for lack of merit. The Court said Sheriff Perez cannot be faulted for implementing a writ of execution pursuant to Judge Caguioa’s order.
The High Court held that Judge Caguioa did not adjudicate any rights of the parties and resolved no other matter except the dismissal of the case on the ground of prescription. Thus, his order to place private respondents in possession of the disputed property is not necessarily included in or necessary to the judgment of the dismissal of the case on the ground of “prescription.”
The High Court said that the execution was highly improper because of the fact that Judge Caguioa has been apprised of the pendency of the reversion suits filed by the Republic involving the same parcels of land in another Olongapo RTC.
According to an item in the Supreme Court website, the Court has dismissed the Judge Ramon S. Caguioa, presiding judge of the Olongapo City RTC, Branch 74, for gross ignorance of the law and conduct prejudicial to the best interest of the service.
In a 31-page per curiam consolidated decision, the Court ordered the forfeiture of Judge Caguioa’s retirement benefits, except accrued leave credits. Judge Caguioa was faulted for his erroneous issuances of writ of preliminary injunctions in cases pending before his sala.
“Ignorance of the law is the mainspring of injustice. Judges are called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. Basic rules should be at the palm of their hands their inexcusable failure to observe basic laws and rules will render them administratively liable,” the Court said.
The first administrative case stemmed from the civil case Indigo Distribution Corp. Inc v. Secretary of Finance filed before Judge Caguioa’s court. Indigo, et al., importers and traders licensed to operate inside the Subic Bay Freeport Zone, have been granted by Subic Bay Metropolitan Authority (SBMA) certificates of registration and tax exemptions.
Indigo, et al. filed a case before Judge Caguioa’s sala when SBMA, pursuant to RA 7227 (An Act Accelerating the Conversion of Military Reservations into Other Public uses, Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other Purposes), subsequently required them to pay corresponding duties and taxes on their importation of cigars, cigarettes, liquors and wines
Judge Caguioa granted Indigo’s petition for the issuance of writ of preliminary injunction and approved the injunction bond amounting to PhP1 million for all petitioners. During the pendency of Republic’s appeal before the High Court, Judge Caguioa granted various ex parte motions for interventions of different corporations claiming to be similarly situation with Indigo and allowed them to ride on the injunctive bond posted by Indigo. The High Court subsequently declared the assailed order of judge null and void citing for grave abuse of discretion.
The High Court ruled that taxes are the lifeblood of the government and it is of public interest that the collection of which should not be restrained. It held that the applicants for the writ showed no clear and unmistakable right that was material and substantial to warrant the issuance of writ, nor the urgency and necessity of such. Worst, Judge Caguioa, in his issuance of the said writ, had failed to observe due process when the Office of the Solicitor General (OSG), representing the Republic, was not served copies of the motions for intervention.
In a similar case, Judge Caguioa erroneously issued a temporary restraining order and writ of preliminary injunction in the petition for mandamus filed by District Collector of Customs in the Port of Subic Andres D. Salvacion, Jr. against his then would-be replacement Gracia Z Caringal, et al. Subsequently, he enjoined the CIR and the Finance Secretary to observe and respect his issuances.
On appeal, the CA ruled that Judge Caguioa should have dismissed the case for improper venue. The CA said that the petition for mandamus, which relates to the acts of officers, must be filed in the RTC exercising jurisdiction over the territorial area covering said officers, which in this case was Manila because the main office of Commission was in Manila.
The High Court said that Judge Caguioa’s issuance of the writ in the above case did not satisfy the legal requisite for its issuances and was enforced outside his territorial jurisdiction. It upheld the CA ruling that the applicant had failed to establish that he has a clear and unmistakable right that was violated so as to warrant the issuance of an injunction.
Judge Caguioa was also found guilty of simple misconduct and ordered suspended from office without pay for three months in a third administrative case which stemmed from another civil case. The case against his co-respondent Sheriff Christopher T. Perez, however, was dismissed for lack of merit. The Court said Sheriff Perez cannot be faulted for implementing a writ of execution pursuant to Judge Caguioa’s order.
The High Court held that Judge Caguioa did not adjudicate any rights of the parties and resolved no other matter except the dismissal of the case on the ground of prescription. Thus, his order to place private respondents in possession of the disputed property is not necessarily included in or necessary to the judgment of the dismissal of the case on the ground of “prescription.”
The High Court said that the execution was highly improper because of the fact that Judge Caguioa has been apprised of the pendency of the reversion suits filed by the Republic involving the same parcels of land in another Olongapo RTC.
Inner sanctum
Former Philippine Supreme Court Chief Justice Artemio Panganiban was the first Chief Justice produced by my high school and law alma mater, the Far Eastern University (Manila).
A self-made man, who worked while learning law, Chief Justice Panganiban had served for many years in various NGOs under the umbrella of the Business Sector and the Catholic Church to help promote the rule of law in the Philippines.
I had an opportunity to serve with him a few years ago when I was invited to be one of the resource persons in a forum on Judicial Appointments held at the FEU Graduate School auditorium under the joint auspices of the prominent law and justice NGO Kilosbayan, led by former Senate President and former FEU Law Dean Jovito Salonga, and the FEU Administration.
I found Chief Justice Panganiban to be a jolly, cheerful, warm and unassuming man, who loved his alma mater, who knew how to show his respect and debt of gratitude to his former law mentor, Sen. Salonga, and who knew how to adjust the presentation of his lecture to accommodate the level of knowledge of the participating FEU students.
I wish to reproduce in full below the two recent columns of Chief Justice Panganiban which were published in the prominent Philippine Daily Inquirer re: the inner workings of the Philippine Supreme Court, for the information of the foreign lawyers, law students and legal researchers visiting this blog.
Atty. Manuel J. Laserna Jr.
High School, FEU, Valedictorian, 1971
Bachelor of Laws, FEU, cum laude, 1984.
How the SC decides cases (Part 1)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 04:20:00 06/21/2009
WITHOUT asking for comment, the Supreme Court correctly threw out the petitions assailing the validity of House Resolution 1109. However, the Court still gave them special treatment by issuing a signed resolution extensively explaining its action. Normally, to show its disdain for utterly unmeritorious and “cerebrally deficient” petitions, it simply dismisses them via one-sentence resolutions. To explain, let me write a primer on how the Court decides cases in the normal course.
Review court
As a rule, the Supreme Court does not take initial cognizance of controversies. It merely reviews decisions of other tribunals; its work consists mainly of affirming, modifying or reversing decisions or orders of lower courts; and of determining whether a lower court, or an agency of the government (including the president and Congress) acted without or in excess of its jurisdiction or committed grave abuse of discretion.
On its own, the Supreme Court does not initiate such review. Its authority must be triggered by the filing of a petition by a proper party. In this sense, the Court (and the entire judiciary) is a “passive branch” of the government. It cannot act on a controversy unless asked to do so.
In trial courts, the proceedings are open to the public. But in the Supreme Court the internal deliberations are confidential; only their net results, written in the form of decisions, resolutions, orders and opinions (concurring, dissenting and separate), are released to the public. Emphasizing the sacredness of collegial deliberations, retired Justice Florenz D. Regalado said, “In trial courts, the rule is transparency; but in the Supreme Court, it is confidentiality.”
Collegial decisions
The justices debate and vote independently of each other but they decide collegially. Thus, all court actions are determined during sessions. Except in emergencies, no justice can act individually to bind the Court. Even simple motions for extension of time are calendared and acted upon by the Court as a collegial body.
The agenda of the Court (whether en banc or in division) usually consists of about 150 to 250 items per session. The Court disposes each of them speedily, but the backbreaking job is done in chambers and at home, when the justices study, read, reflect, pray, and write on the matters assigned to them.
Of course, prior to the session, they also need to study the reports of their fellow justices, so they can express concurrence or dissent to, or at least intelligently discuss, the items in the agenda. Nothing is more embarrassing than to be caught unprepared or to be unable to answer questions on matters being reported on.
Verbal discussions are very limited. Contrary to popular misimpressions, justices do not talk too much. Rather, they write a lot. Arguments, reflections and position papers are exchanged every day. When the verbal discussion of a case exceeds five minutes, the chief justice normally postpones further discussions, with the suggestion that members write their opinions, pro and contra, to be distributed a few days prior to the next calendar.
Oral arguments are usually held in the cavernous and rather intimidating hearing hall of the Court in Padre Faura Street. Oral arguments, which are rare, are usually held only in cases involving difficult and complicated questions.
The Court delineates the issues; and the lawyers for each side, who are expected to come extensively prepared, dwell on these issues within the allotted time, normally 20 minutes each. However, the justices may, and usually do, ask questions on any topic or issue. Hence, the allotted time is usually extended.
During oral arguments, the Court sometimes appoints amici curiae (friends of the court) to assist the justices in resolving difficult questions. An invitation to act as amicus curiae is a rare privilege granted only to lawyers of unquestioned stature, competence and lucidity. After the oral arguments, the lawyers are usually required to file written memoranda.
En banc or in division
The Court regularly sits en banc (all members of the Court) and in division (five members each). To grant a motion or petition and to approve a decision or resolution, the concurrence of a majority of those taking part is sufficient. The distribution of the justices to the three divisions is determined by the chief justice, who usually spreads the senior and the junior justices more or less evenly among the three groups.
Seniority based on the date of appointment is strictly observed in seating arrangements. En banc, the chief justice sits at the head of the table, with the most senior justice on his right and the next most senior on his left. The third most senior sits next to the first, the fourth most senior sits next to the second, and so on down to the fifteenth who sits at the foot of the table on the chief justice’s left. The seniority rule is observed also in the divisions, with the chairman sitting at the head of the table.
The foregoing seating arrangement is followed also during oral arguments, except that instead of sitting around a table, the justices sit on an elevated crescent-shaped rostrum facing the audience.
The most senior member usually chairs each division. Although the chief justice is also a division chairman, his functions as chair are actually performed by the “working chairman,” who is the next most senior in the division. To be continued next week to show the special treatment to Resolution 1109.
With Due Respect
How the SC decides cases (Part 2)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:57:00 06/27/2009
THIS IS a continuation of last week’s primer on how the Supreme Court decides litigations.
Sessions and titles. During their internal sessions – those held among themselves
only – the justices wear either business suits or barong Filipino. But they don their all-black working robes during oral arguments, whether en banc or in division, and their maroon-stripped ceremonial robes during official functions other than oral arguments.
The Court sits en banc on Tuesdays, and in division on Mondays and Wednesdays. The justices take turns in leading the opening prayer. Sometimes, the justice who is scheduled to report on the first item in the agenda leads the prayer.
The members of the Court are formally addressed as “Your Honor” or “Mr. Justice” or “Madam Justice” or simply “Justice.” The head is addressed as “Mr. Chief Justice,” or fondly – by the members of the Court – as “Chief” or “CJ.” Various formal resolutions of the Court restrict the use of these titles to current and retired members of the Supreme Court (and the three appellate courts).
Trial magistrates are called “judges.” Only officials belonging to the judiciary are allowed to use the titles “Chief justice,” “Justice” or “Judge.” Hence, officials to whom the law grants judicial ranks and privileges, like the solicitor general and the government corporate counsel, are prohibited from using these appellations.
Three rounds. There are “three rounds” in the Supreme Court. The first usually begins upon the filing of a petition, or a motion for extension of time to file a petition, or a notice of appeal.
The acceptance of any appeal or petition is addressed to the sound discretion of the Supreme Court. With few exceptions, like appeals of decisions imposing life imprisonment, it may summarily dismiss motu proprio worthless petitions. In this way, the Court saves its time and resources for more important cases that are ripe for resolution.
Although the Court has the discretion to deny or dismiss a petition during the “First Round,” in general it does so for (1) procedural errors, like violations of the Rules of Court or Supreme Court circulars; or (2) failure of the petition to demonstrate prima facie a “reversible” error or a grave abuse of discretion, or (3) prematurity. Orders dismissing petitions based on these grounds are known as minute resolutions and are normally couched in standard forms.
Second round. Once a petition passes these procedural and substantive tests, the first round ends. The “Second Round” begins when the Court requires the respondents to file their “comment.” After receipt of the comment, the Court may direct the petitioner(s) to file their “reply.” No pleading may be filed at this stage, unless ordered by the Court.
After this exchange, the Court may grant due course to the petition and ask the parties to file their memoranda. Alternatively, it may issue a resolution denying or dismissing the petition, usually unsigned by the justices but certified by the clerk of court (or deputy clerk of court).
Only the justices are present during the sessions. The minutes of the session are prepared by the division chairman or, in case of en banc sessions, by the chief justice. Some lawyers and litigants wrongly believe that the clerk of court or his/her deputies compose the unsigned resolutions. No, the justices themselves prepare them. They are included in the minutes of the sessions, from which they are excerpted and then sent to the parties.
Third round. If the Court believes that, on the basis of the comment and/or reply, the questions raised in the petition deserve a full-length decision, the second round ends and the Court generally issues a resolution, giving due course to the petition and requiring the parties to submit their respective memoranda.
On rare occasions, oral arguments are held after the Court grants due course to the petition. At the end of the oral arguments, the Court usually requires the parties to submit written memoranda to summarize their arguments or to answer questions raised during the hearing.
After the memoranda are received, the Court deliberates on the report of the justice to whom the petition had been earlier raffled. Once signed by the justices, the decision is promulgated by the clerk of court and then made public. Copies are sent to the parties. The parties have 15 days – with no extension allowed – from receipt of the decision or resolution, within which to file a motion for reconsideration. If no such motion is filed within the prescribed period, the decision becomes final.
Undeserved treatment. Had the Court followed normal procedure, it could have “short shrifted” the plainly unmeritorious petitions against House Resolution 1109 by dismissing them at sight through its usual one-sentence minute resolution saying that they were premature, that the petitioners lacked legal standing and that, in any event, they failed to show – at that point – any grave abuse of discretion.
In other words, it could have simply declined to review them. By showing off a full-length ponencia that is normally issued only after the “three rounds” described above are undertaken, the Court accorded what it said “cerebral deficits” did not deserve: its valuable time and attention. Worse, it may have cornered itself to a precedent that can be invoked by similarly worthless petitions in the future.
In damning the petitions garrulously, the Court relished the gallery more than its own time-tested profundity.
(end)
A self-made man, who worked while learning law, Chief Justice Panganiban had served for many years in various NGOs under the umbrella of the Business Sector and the Catholic Church to help promote the rule of law in the Philippines.
I had an opportunity to serve with him a few years ago when I was invited to be one of the resource persons in a forum on Judicial Appointments held at the FEU Graduate School auditorium under the joint auspices of the prominent law and justice NGO Kilosbayan, led by former Senate President and former FEU Law Dean Jovito Salonga, and the FEU Administration.
I found Chief Justice Panganiban to be a jolly, cheerful, warm and unassuming man, who loved his alma mater, who knew how to show his respect and debt of gratitude to his former law mentor, Sen. Salonga, and who knew how to adjust the presentation of his lecture to accommodate the level of knowledge of the participating FEU students.
I wish to reproduce in full below the two recent columns of Chief Justice Panganiban which were published in the prominent Philippine Daily Inquirer re: the inner workings of the Philippine Supreme Court, for the information of the foreign lawyers, law students and legal researchers visiting this blog.
Atty. Manuel J. Laserna Jr.
High School, FEU, Valedictorian, 1971
Bachelor of Laws, FEU, cum laude, 1984.
How the SC decides cases (Part 1)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 04:20:00 06/21/2009
WITHOUT asking for comment, the Supreme Court correctly threw out the petitions assailing the validity of House Resolution 1109. However, the Court still gave them special treatment by issuing a signed resolution extensively explaining its action. Normally, to show its disdain for utterly unmeritorious and “cerebrally deficient” petitions, it simply dismisses them via one-sentence resolutions. To explain, let me write a primer on how the Court decides cases in the normal course.
Review court
As a rule, the Supreme Court does not take initial cognizance of controversies. It merely reviews decisions of other tribunals; its work consists mainly of affirming, modifying or reversing decisions or orders of lower courts; and of determining whether a lower court, or an agency of the government (including the president and Congress) acted without or in excess of its jurisdiction or committed grave abuse of discretion.
On its own, the Supreme Court does not initiate such review. Its authority must be triggered by the filing of a petition by a proper party. In this sense, the Court (and the entire judiciary) is a “passive branch” of the government. It cannot act on a controversy unless asked to do so.
In trial courts, the proceedings are open to the public. But in the Supreme Court the internal deliberations are confidential; only their net results, written in the form of decisions, resolutions, orders and opinions (concurring, dissenting and separate), are released to the public. Emphasizing the sacredness of collegial deliberations, retired Justice Florenz D. Regalado said, “In trial courts, the rule is transparency; but in the Supreme Court, it is confidentiality.”
Collegial decisions
The justices debate and vote independently of each other but they decide collegially. Thus, all court actions are determined during sessions. Except in emergencies, no justice can act individually to bind the Court. Even simple motions for extension of time are calendared and acted upon by the Court as a collegial body.
The agenda of the Court (whether en banc or in division) usually consists of about 150 to 250 items per session. The Court disposes each of them speedily, but the backbreaking job is done in chambers and at home, when the justices study, read, reflect, pray, and write on the matters assigned to them.
Of course, prior to the session, they also need to study the reports of their fellow justices, so they can express concurrence or dissent to, or at least intelligently discuss, the items in the agenda. Nothing is more embarrassing than to be caught unprepared or to be unable to answer questions on matters being reported on.
Verbal discussions are very limited. Contrary to popular misimpressions, justices do not talk too much. Rather, they write a lot. Arguments, reflections and position papers are exchanged every day. When the verbal discussion of a case exceeds five minutes, the chief justice normally postpones further discussions, with the suggestion that members write their opinions, pro and contra, to be distributed a few days prior to the next calendar.
Oral arguments are usually held in the cavernous and rather intimidating hearing hall of the Court in Padre Faura Street. Oral arguments, which are rare, are usually held only in cases involving difficult and complicated questions.
The Court delineates the issues; and the lawyers for each side, who are expected to come extensively prepared, dwell on these issues within the allotted time, normally 20 minutes each. However, the justices may, and usually do, ask questions on any topic or issue. Hence, the allotted time is usually extended.
During oral arguments, the Court sometimes appoints amici curiae (friends of the court) to assist the justices in resolving difficult questions. An invitation to act as amicus curiae is a rare privilege granted only to lawyers of unquestioned stature, competence and lucidity. After the oral arguments, the lawyers are usually required to file written memoranda.
En banc or in division
The Court regularly sits en banc (all members of the Court) and in division (five members each). To grant a motion or petition and to approve a decision or resolution, the concurrence of a majority of those taking part is sufficient. The distribution of the justices to the three divisions is determined by the chief justice, who usually spreads the senior and the junior justices more or less evenly among the three groups.
Seniority based on the date of appointment is strictly observed in seating arrangements. En banc, the chief justice sits at the head of the table, with the most senior justice on his right and the next most senior on his left. The third most senior sits next to the first, the fourth most senior sits next to the second, and so on down to the fifteenth who sits at the foot of the table on the chief justice’s left. The seniority rule is observed also in the divisions, with the chairman sitting at the head of the table.
The foregoing seating arrangement is followed also during oral arguments, except that instead of sitting around a table, the justices sit on an elevated crescent-shaped rostrum facing the audience.
The most senior member usually chairs each division. Although the chief justice is also a division chairman, his functions as chair are actually performed by the “working chairman,” who is the next most senior in the division. To be continued next week to show the special treatment to Resolution 1109.
With Due Respect
How the SC decides cases (Part 2)
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:57:00 06/27/2009
THIS IS a continuation of last week’s primer on how the Supreme Court decides litigations.
Sessions and titles. During their internal sessions – those held among themselves
only – the justices wear either business suits or barong Filipino. But they don their all-black working robes during oral arguments, whether en banc or in division, and their maroon-stripped ceremonial robes during official functions other than oral arguments.
The Court sits en banc on Tuesdays, and in division on Mondays and Wednesdays. The justices take turns in leading the opening prayer. Sometimes, the justice who is scheduled to report on the first item in the agenda leads the prayer.
The members of the Court are formally addressed as “Your Honor” or “Mr. Justice” or “Madam Justice” or simply “Justice.” The head is addressed as “Mr. Chief Justice,” or fondly – by the members of the Court – as “Chief” or “CJ.” Various formal resolutions of the Court restrict the use of these titles to current and retired members of the Supreme Court (and the three appellate courts).
Trial magistrates are called “judges.” Only officials belonging to the judiciary are allowed to use the titles “Chief justice,” “Justice” or “Judge.” Hence, officials to whom the law grants judicial ranks and privileges, like the solicitor general and the government corporate counsel, are prohibited from using these appellations.
Three rounds. There are “three rounds” in the Supreme Court. The first usually begins upon the filing of a petition, or a motion for extension of time to file a petition, or a notice of appeal.
The acceptance of any appeal or petition is addressed to the sound discretion of the Supreme Court. With few exceptions, like appeals of decisions imposing life imprisonment, it may summarily dismiss motu proprio worthless petitions. In this way, the Court saves its time and resources for more important cases that are ripe for resolution.
Although the Court has the discretion to deny or dismiss a petition during the “First Round,” in general it does so for (1) procedural errors, like violations of the Rules of Court or Supreme Court circulars; or (2) failure of the petition to demonstrate prima facie a “reversible” error or a grave abuse of discretion, or (3) prematurity. Orders dismissing petitions based on these grounds are known as minute resolutions and are normally couched in standard forms.
Second round. Once a petition passes these procedural and substantive tests, the first round ends. The “Second Round” begins when the Court requires the respondents to file their “comment.” After receipt of the comment, the Court may direct the petitioner(s) to file their “reply.” No pleading may be filed at this stage, unless ordered by the Court.
After this exchange, the Court may grant due course to the petition and ask the parties to file their memoranda. Alternatively, it may issue a resolution denying or dismissing the petition, usually unsigned by the justices but certified by the clerk of court (or deputy clerk of court).
Only the justices are present during the sessions. The minutes of the session are prepared by the division chairman or, in case of en banc sessions, by the chief justice. Some lawyers and litigants wrongly believe that the clerk of court or his/her deputies compose the unsigned resolutions. No, the justices themselves prepare them. They are included in the minutes of the sessions, from which they are excerpted and then sent to the parties.
Third round. If the Court believes that, on the basis of the comment and/or reply, the questions raised in the petition deserve a full-length decision, the second round ends and the Court generally issues a resolution, giving due course to the petition and requiring the parties to submit their respective memoranda.
On rare occasions, oral arguments are held after the Court grants due course to the petition. At the end of the oral arguments, the Court usually requires the parties to submit written memoranda to summarize their arguments or to answer questions raised during the hearing.
After the memoranda are received, the Court deliberates on the report of the justice to whom the petition had been earlier raffled. Once signed by the justices, the decision is promulgated by the clerk of court and then made public. Copies are sent to the parties. The parties have 15 days – with no extension allowed – from receipt of the decision or resolution, within which to file a motion for reconsideration. If no such motion is filed within the prescribed period, the decision becomes final.
Undeserved treatment. Had the Court followed normal procedure, it could have “short shrifted” the plainly unmeritorious petitions against House Resolution 1109 by dismissing them at sight through its usual one-sentence minute resolution saying that they were premature, that the petitioners lacked legal standing and that, in any event, they failed to show – at that point – any grave abuse of discretion.
In other words, it could have simply declined to review them. By showing off a full-length ponencia that is normally issued only after the “three rounds” described above are undertaken, the Court accorded what it said “cerebral deficits” did not deserve: its valuable time and attention. Worse, it may have cornered itself to a precedent that can be invoked by similarly worthless petitions in the future.
In damning the petitions garrulously, the Court relished the gallery more than its own time-tested profundity.
(end)
Monday, June 22, 2009
Cerebral deficit
Sometimes, the justices of the Philippine Supreme Court can be very insulting and impatient in their relationship with their brothers and sisters in the Bar.
For instance, take the fresh public-interest case of “ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009”, with companion case, which involved the controversial House Resolution No. 1109 (re: Con-Ass charter change attempt).
The lawyer petitioner Atty. Oliver Lozano is identified by many Filipinos as an alleged legal mercenary of the administration of Pres. Gloria Arroyo. He reportedly has the penchant for the very speedy filing of certiorari and prohibition petitions allegedly to entrap the Supreme Court to issue pronouncements that may be exploited by Pres. Arroyo’s political henchmen to perpetuate themselves in power.
In the abovecited case, Atty. Lozano was hit by the Supreme Court with stinging and harsh words which pictured him as a man suffering from “cerebral deficit”. Well, with due respect to Atty. Lozana, I think he deserves the apt description hurled by the highest tribunal of the land. Unfortunately for Atty. Lozano, his shameful tag will forever be recorded in the annals of Philippine legal history, courtesy of the Supreme Court Reports Annotated (SCRA) and the Philippine Reports (Phil.). Thus:
“Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.”
Below is the full text of the strongly worded decision, for legal research purposes of the visitors of this blog.
ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009, with companion case.
This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to wield its judicial power to settle "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government." [1] Be that as it may, no amount of exigency can make this Court exercise a power where it is not proper.
The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers, prayed for the nullification of House Resolution No. 1109 entitled “A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress.” In essence, both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution. Unfortunately, this Court cannot indulge petitioners’ supplications. While some may interpret petitioners’ moves as vigilance in preserving the rule of law, a careful perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will assume jurisdiction over cases involving constitutional disputes.
It is well settled that it is the duty of the judiciary to say what the law is. [2] The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its “solemn and sacred obligation” under the Constitution. [3] This Court’s power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. [4] The “case-or-controversy” requirement bans this court from deciding “abstract, hypothetical or contingent questions,” [5] lest the court give opinions in the nature of advice concerning legislative or executive action. [6] In the illuminating words of the learned Justice Laurel in Angara v. Electoral Commission [7]:
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.
An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. [8] Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. [9] In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. [10] An alternative road to review similarly taken would be to determine whether an action has already been accomplished or performed by a branch of government before the courts may step in. [11]
In the present case, the fitness of petitioners’ case for the exercise of judicial review is grossly lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant an intervention from this Court.
Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971 Constitutional Convention. The court resolved the issue thus:
More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new precedent being announced, it is controlling. It is implicit in the rule of law. [12]
Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus, generally, a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought. [13] In the cases at bar, petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional questions. [14] The lack of petitioners’ personal stake in this case is no more evident than in Lozano’s three-page petition that is devoid of any legal or jurisprudential basis.
Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as taxpayers and concerned citizens. A taxpayer’s suit requires that the act complained of directly involves the illegal disbursement of public funds derived from taxation. [15] It is undisputed that there has been no allocation or disbursement of public funds in this case as of yet. To be sure, standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of transcendental importance or when paramount public interest is involved. [16] While the Court recognizes the potential far-reaching implications of the issue at hand, the possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi under the “transcendental importance” doctrine.
The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." As stated in Kilosbayan, Incorporated v. Guingona, Jr., [17] viz.:
x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." It thus goes to the very essence of representative democracies.
x x x x
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.
In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury. [18] When warranted by the presence of indispensable minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it.
IN VIEW WHEREOF, the petitions are dismissed.
SO ORDERED.
For instance, take the fresh public-interest case of “ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009”, with companion case, which involved the controversial House Resolution No. 1109 (re: Con-Ass charter change attempt).
The lawyer petitioner Atty. Oliver Lozano is identified by many Filipinos as an alleged legal mercenary of the administration of Pres. Gloria Arroyo. He reportedly has the penchant for the very speedy filing of certiorari and prohibition petitions allegedly to entrap the Supreme Court to issue pronouncements that may be exploited by Pres. Arroyo’s political henchmen to perpetuate themselves in power.
In the abovecited case, Atty. Lozano was hit by the Supreme Court with stinging and harsh words which pictured him as a man suffering from “cerebral deficit”. Well, with due respect to Atty. Lozana, I think he deserves the apt description hurled by the highest tribunal of the land. Unfortunately for Atty. Lozano, his shameful tag will forever be recorded in the annals of Philippine legal history, courtesy of the Supreme Court Reports Annotated (SCRA) and the Philippine Reports (Phil.). Thus:
“Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.”
Below is the full text of the strongly worded decision, for legal research purposes of the visitors of this blog.
ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO vs. SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, En Banc, G.R. No. 187883. June 16, 2009, with companion case.
This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to wield its judicial power to settle "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of the government." [1] Be that as it may, no amount of exigency can make this Court exercise a power where it is not proper.
The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers, prayed for the nullification of House Resolution No. 1109 entitled “A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress.” In essence, both petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for the procedure for amending or revising the Constitution. Unfortunately, this Court cannot indulge petitioners’ supplications. While some may interpret petitioners’ moves as vigilance in preserving the rule of law, a careful perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will assume jurisdiction over cases involving constitutional disputes.
It is well settled that it is the duty of the judiciary to say what the law is. [2] The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its “solemn and sacred obligation” under the Constitution. [3] This Court’s power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. [4] The “case-or-controversy” requirement bans this court from deciding “abstract, hypothetical or contingent questions,” [5] lest the court give opinions in the nature of advice concerning legislative or executive action. [6] In the illuminating words of the learned Justice Laurel in Angara v. Electoral Commission [7]:
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.
An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. [8] Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. [9] In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. [10] An alternative road to review similarly taken would be to determine whether an action has already been accomplished or performed by a branch of government before the courts may step in. [11]
In the present case, the fitness of petitioners’ case for the exercise of judicial review is grossly lacking. In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant an intervention from this Court.
Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971 Constitutional Convention. The court resolved the issue thus:
More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new precedent being announced, it is controlling. It is implicit in the rule of law. [12]
Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus, generally, a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought. [13] In the cases at bar, petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional questions. [14] The lack of petitioners’ personal stake in this case is no more evident than in Lozano’s three-page petition that is devoid of any legal or jurisprudential basis.
Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as taxpayers and concerned citizens. A taxpayer’s suit requires that the act complained of directly involves the illegal disbursement of public funds derived from taxation. [15] It is undisputed that there has been no allocation or disbursement of public funds in this case as of yet. To be sure, standing as a citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of transcendental importance or when paramount public interest is involved. [16] While the Court recognizes the potential far-reaching implications of the issue at hand, the possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi under the “transcendental importance” doctrine.
The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable." As stated in Kilosbayan, Incorporated v. Guingona, Jr., [17] viz.:
x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government." It thus goes to the very essence of representative democracies.
x x x x
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.
In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury. [18] When warranted by the presence of indispensable minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it.
IN VIEW WHEREOF, the petitions are dismissed.
SO ORDERED.
Monday, June 15, 2009
Judicial elections
One of the main weaknesses of the American justice system lies in the fact that at the state level the trial judges and appellate justices are all elected, thus, exposing the justice system to real possibilities and risks of judicial corruption, partisan politics, and influence peddling.
There seems to be the wrong notion that elections are the sole criterion or prerequisite for democratic governance and for a free and fair justice system.
A clear example of the dangers of partisan judicial elections, especially with respect to the spirit and substance of the code of ethics of judges and justices, is the very recent case of CAPERTON et al. v. A. T. MASSEY COAL CO., INC., et al., certiorari to the Supreme Court of Appeals of West Virginia, No. 08-22, which was argued before the US Supreme Court on March 3, 2009 and decided by it on June 8, 2009 (see: www.findlaw.com):
After a West Virginia jury found respondents (Massey, et. al.) liable for fraudulent misrepresentation, concealment, and tortuous interference with existing contractual relations and awarded petitioners (Caperton, et. al.) $50 million in damages, West Virginia held its 2004 judicial elections.
Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey's chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin's own committee. Benjamin won by fewer than 50,000 votes.
Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State's Code of Judicial Conduct, based on the conflict caused by Blankenship's campaign involvement.
Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant.
The court then reversed the $50 million verdict.
During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict.
Four months later, Justice Benjamin filed a concurring opinion, defending the court's opinion and his recusal decision.
On certiorari, the US Supreme Court held that in all the circumstances of the case, due process required recusal.
The salient parts of the ratiocination of the Court are digested hereinbelow, for legal research purpose of the visitors of this blog. I wish to acknowledge the leading US law website, www.findlaw.com, for the summary of the case. Thus:
(a) The Due Process Clause incorporated the common-law rule requiring recusal when a judge has "a direct, personal, substantial, pecuniary interest" in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has also identified additional instances which, as an objective matter, require recusal where "the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable," Withrow v. Larkin, 421 U. S. 35, 47. Two such instances place the present case in proper context.
(1) The first involved local tribunals in which a judge had a financial interest in a case's outcome that was less than what would have been considered personal or direct at common law. In Tumey, a village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts: Because he received a salary supplement for performing judicial duties that was funded from the fines assessed, he received a supplement only upon a conviction; and sums from the fines were deposited to the village's general treasury fund for village improvements and repairs. Disqualification was required under the principle that "[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." 273 U. S., at 532. In Ward v. Monroeville, 409 U. S. 57, a conviction in another mayor's court was invalidated even though the fines assessed went only to the town's general fisc, because the mayor faced a " ' possible temptation' " created by his "executive responsibilities for village finances." Id., at 60. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit pending in Alabama's lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper constitutional inquiry was not "whether in fact [the justice] was influenced," id., at 825, but "whether sitting on [that] case ... ' "would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true," ' " ibid. While the "degree or kind of interest ... sufficient to disqualify a judge ... '[could not] be defined with precision, ' " id., at 822, the test did have an objective component.
(2) The second instance emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133. Finding that "no man can be a judge in his own case," and "no man is permitted to try cases where he has an interest in the outcome," id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal. The judge's prior relationship with the defendant, as well as the information acquired from the prior proceeding, was critical. In reiterating that the rule that "a defendant in criminal contempt proceedings should be [tried] before a judge other than the one reviled by the contemnor," Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the relationship between the judge and the defendant, id., at 465, the Court noted that the objective inquiry is not whether the judge is actually biased, but whether the average judge in his position is likely to be neutral or there is an unconstitutional " 'potential for bias,' "
(b) Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin's subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is whether, "under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." Withrow, 421 U. S., at 47. There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The proper inquiry centers on the contribution's relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin's victory. In an election decided by fewer than 50,000 votes, Blankenship's campaign contributions--compared to the total amount contributed to the campaign, as well as the total amount spent in the election--had a significant and disproportionate influence on the outcome. And the risk that Blankenship's influence engendered actual bias is sufficiently substantial that it "must be forbidden if the guarantee of due process is to be adequately implemented." Ibid. The temporal relationship between the campaign contributions, the justice's election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when--without the other parties' consent--a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal.
(c) Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard's application rare.
There seems to be the wrong notion that elections are the sole criterion or prerequisite for democratic governance and for a free and fair justice system.
A clear example of the dangers of partisan judicial elections, especially with respect to the spirit and substance of the code of ethics of judges and justices, is the very recent case of CAPERTON et al. v. A. T. MASSEY COAL CO., INC., et al., certiorari to the Supreme Court of Appeals of West Virginia, No. 08-22, which was argued before the US Supreme Court on March 3, 2009 and decided by it on June 8, 2009 (see: www.findlaw.com):
After a West Virginia jury found respondents (Massey, et. al.) liable for fraudulent misrepresentation, concealment, and tortuous interference with existing contractual relations and awarded petitioners (Caperton, et. al.) $50 million in damages, West Virginia held its 2004 judicial elections.
Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey's chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin's own committee. Benjamin won by fewer than 50,000 votes.
Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State's Code of Judicial Conduct, based on the conflict caused by Blankenship's campaign involvement.
Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant.
The court then reversed the $50 million verdict.
During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict.
Four months later, Justice Benjamin filed a concurring opinion, defending the court's opinion and his recusal decision.
On certiorari, the US Supreme Court held that in all the circumstances of the case, due process required recusal.
The salient parts of the ratiocination of the Court are digested hereinbelow, for legal research purpose of the visitors of this blog. I wish to acknowledge the leading US law website, www.findlaw.com, for the summary of the case. Thus:
(a) The Due Process Clause incorporated the common-law rule requiring recusal when a judge has "a direct, personal, substantial, pecuniary interest" in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has also identified additional instances which, as an objective matter, require recusal where "the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable," Withrow v. Larkin, 421 U. S. 35, 47. Two such instances place the present case in proper context.
(1) The first involved local tribunals in which a judge had a financial interest in a case's outcome that was less than what would have been considered personal or direct at common law. In Tumey, a village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts: Because he received a salary supplement for performing judicial duties that was funded from the fines assessed, he received a supplement only upon a conviction; and sums from the fines were deposited to the village's general treasury fund for village improvements and repairs. Disqualification was required under the principle that "[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." 273 U. S., at 532. In Ward v. Monroeville, 409 U. S. 57, a conviction in another mayor's court was invalidated even though the fines assessed went only to the town's general fisc, because the mayor faced a " ' possible temptation' " created by his "executive responsibilities for village finances." Id., at 60. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit pending in Alabama's lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper constitutional inquiry was not "whether in fact [the justice] was influenced," id., at 825, but "whether sitting on [that] case ... ' "would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true," ' " ibid. While the "degree or kind of interest ... sufficient to disqualify a judge ... '[could not] be defined with precision, ' " id., at 822, the test did have an objective component.
(2) The second instance emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133. Finding that "no man can be a judge in his own case," and "no man is permitted to try cases where he has an interest in the outcome," id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal. The judge's prior relationship with the defendant, as well as the information acquired from the prior proceeding, was critical. In reiterating that the rule that "a defendant in criminal contempt proceedings should be [tried] before a judge other than the one reviled by the contemnor," Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the relationship between the judge and the defendant, id., at 465, the Court noted that the objective inquiry is not whether the judge is actually biased, but whether the average judge in his position is likely to be neutral or there is an unconstitutional " 'potential for bias,' "
(b) Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin's subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is whether, "under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." Withrow, 421 U. S., at 47. There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The proper inquiry centers on the contribution's relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin's victory. In an election decided by fewer than 50,000 votes, Blankenship's campaign contributions--compared to the total amount contributed to the campaign, as well as the total amount spent in the election--had a significant and disproportionate influence on the outcome. And the risk that Blankenship's influence engendered actual bias is sufficiently substantial that it "must be forbidden if the guarantee of due process is to be adequately implemented." Ibid. The temporal relationship between the campaign contributions, the justice's election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when--without the other parties' consent--a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal.
(c) Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard's application rare.
Saturday, June 13, 2009
Despicable stupidity
Article VI of the 1987 Philippine Constitution provides for a bicameral Congress. Legislative power is vested “in the Congress of the Philippines which consists of a Senate and a House of Representatives”. (Sec. 1).
Article XVII of the 1987 Philippine Constitution provides that any amendment to, or revision of, the Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. (Sec. 1). Amendments may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. (Sec. 2). The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. (Sec. 3). Any amendment to, or revision of, the Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite. (Sec. 4).
The recent midnight railroading by the House of Representatives of the notorious and obnoxious H.R. No. 1109, which seeks to amend the Constitution without the participation of the independent-minded Philippine Senate, has sparked justified indignation and condemnation by the Filipino people. Many see the resolution as a blatant and ugly attempt of Pres. Gloria Arroyo and her political clique of feudal lords and cronies to perpetuate themselves in power beyond the forthcoming 2010 national elections.
Below are news items detailing the unconscionable birth and railroading of the resolution and showing the despicable stupidity of the legal theory of the Arroyo party and henchmen.
House rams through Con-ass resolution
Nograles: Arroyo told allies to push HR 1109
By Gil C. Cabacungan Jr., Leila Salaverria, Lira Dalangin-Fernandez
Philippine Daily Inquirer, INQUIRER.net
First Posted 02:36:00 06/03/2009
MANILA, Philippines—Using their massive numbers, President Gloria Macapagal-Arroyo’s allies in the House of Representatives Tuesday night crushed all objections and passed a resolution setting up a constituent assembly (Con-ass) amid opposition warnings it would allow Ms Arroyo to stay in power beyond 2010.
In a marathon session that dragged toward midnight, a former administration stalwart, ousted Speaker Jose de Venecia Jr., lambasted the majority vote as “a charade.”
“We oppose this, this charade… Let us amend the Constitution after the term of President Arroyo. That is the time to amend the Constitution of the Philippines. The best way to amend the Constitution is by constitutional convention,” said de Venecia.
Other opposition lawmakers accused the majority of railroading the resolution, which was approved by acclamation at about 11:20 p.m.
Approval of House Resolution No. 1109 empowered Congress to convene itself into a Con-ass in which members of the House and the Senate would vote jointly—not separately—to amend the 1987 Constitution.
Senators have said this would render the upper chamber inutile because the larger House membership could override any Senate objections to proposed amendments.
“This means that under 1109, we are opening the entire Constitution to amendments .... This is where Malacañang’s agenda to keep President Arroyo in power will come in,” Bayan Muna party-list Rep. Teodoro Casiño warned the chamber before the House leadership pushed through with the vote.
“This will allow our politicians to keep themselves in power,” Casiño added.
He said that with the majority’s insistence on such an “unconstitutional move, we are putting our democracy in danger.”
He said the members of the majority voted for HR 1109 on pain of losing their pork barrel.
He said one of the sponsors of the resolution had admitted on the floor that the "whereas clause" in the resolution that prohibits the term extension of the incumbent president and vice president, senators, congressmen, mayors and other elected officials whose term will expire in 2010, and that there would be elections in 2010 was "not binding."
Parañaque Rep. Roilo Golez said the majority pledged to have an exhaustive discussion of the resolution in plenary.
"If we cannot trust them [majority] on this very small pledge, how can the people trust the members of this Congress as a constituent assembly," Golez said.
Gabriela party-list Rep. Luzviminda Ilagan called the proceedings a "night of ignominy" where the administration allies once again used their numbers to push their agenda.
“Tonight we witnessed a railroading,” Ilagan declared on the floor.
Nueva Vizcaya Rep. Carlos Padilla, said the one-sided vote showed the “tyranny of the majority.”
“I believe in democracy, but this tyranny,” South Cotabato Rep. Darlene Antonino-Custodio said.
Quezon Rep. Lorenzo Tañada III said he voted against the resolution because Congress does not need to pass one in its use of its inherent legislative powers. He added he is also against the "crass" manifestation that the House alone can act in amending the Constitution without engaging the Senate.
“This is a massive deception of the Filipino people,” Anak Pawis party-list Rep. Rafael Mariano said. Akbayan lawmaker Walden Bello said the vote was in effect an extension of Ms Arroyo’s term beyond 2010.
"Have we no shame? Let us stop this farce immediately," Bukidnon Rep. Teofisto Guingona III said.
With the resolution’s passage, Nueva Ecija Rep. Eduardo Nonato Joson likened the country to a woman fighting off a rapist, saying “Huwag po kuya [Please don’t, sir].”
“Let us not gang rape our Constitution,” he said.
The House plenary will have to decide on when to convene the Con-ass, as well as the next steps to be taken, according to La Union Rep. Victor Ortega, chair of the committee on constitutional amendments.
To speed up passage of the resolution, the House leadership cut short the interpellation period and limited to 5 minutes the speeches of lawmakers opposing the voting.
At 9:30 p.m., Shariff Kabunsuan Rep. Didagen Dilangalen suddenly moved to close the debate after only five of the 13 representatives lined up— Minority Leader Ronaldo Zamora, Bayan Muna party-list Rep. Satur Ocampo, Guingona, Maza and Golez—were able to speak out against HR 1109.
Dilangalen claimed that the arguments raised against HR 1109 were repetitive.
At 9:53 p.m., the majority voted to shut down the debate and, after a 20-minute break, the minority resumed their opposition against what they called the majority’s “railroading” of the Con-ass.
Padilla said the mad rush to approve HR 1109 had made “this Congress the worst in the annals of history.”
Zamora questioned the haste with which it was being discussed in plenary, with only two session days left and with other key legislation pending for passage.
“Why the short cut? Why not go for the long haul, for the harder route? Why not eschew the easy path and make the amendments to the Constitution as important as the role of the committee on constitutional amendments?” Zamora said.
Gabriela party-list Rep. Liza Maza asked one of the sponsors, Cavite Rep. Elpidio Barzaga Jr., if it was possible under the resolution to postpone the 2010 elections.
"Everything is possible, but it depends on the sound judgment of our colleagues," Barzaga said.
Ortega also echoed the same view, saying that they would rely on "trust" basis in implementing the “whereas clause.”
After an early afternoon caucus, the majority decided to tackle HR 1109 ahead of the other contentious measures pending on the floor, such as the bills on the right of reply and on the extension of the Comprehensive Agrarian Reform Program (CARP).
Speaker Prospero Nograles then announced that the Tuesday plenary session would be devoted to HR 1109. As of 4:30 p.m., 211 lawmakers were present.
Critics have also warned that HR 1109 is a veiled attempt to stop the May 2010 elections and lift term limits on elected officials, including Ms Arroyo.
The original author of the measure, Camarines Sur Rep. Luis Villafuerte, had withdrawn support for it. He said he expected the resolution to be challenged in the Supreme Court.
Those pushing HR 1109 have said that they merely wanted to force the Supreme Court to rule on whether Charter change (Cha-cha) required the vote of three-fourths of all members of Congress, or three-fourths of the House and three-fourths of the Senate.
Arroyo’s tacit approval
The President herself gave tacit approval for Lakas-Kampi-CMD allies in the House to push for the passage of HR 1109, according to Nograles.
He said the decision to push for HR 1109 over his own HR 737—which seeks to lift constitutional limits on foreign investments through regular legislation, or the “fourth mode” of Charter change—was reached during the official merger on Thursday of the ruling parties Lakas-Christian Muslim Democrats and Kabalikat ng Malayang Pilipino (Kampi).
“The leaders of Lakas and Kampi decided in that meeting that this is one of the things that we will push for. I will not deny that she (the President) was present when we decided on that, but she did not say anything,” Nograles said in an interview.
HR 1109 was aggressively promoted for signatures in the House by the President’s elder son, Pampanga Rep. Juan Miguel Arroyo.
Although Villafuerte, the president of Kampi, decided to drop the resolution, Ms Arroyo’s allies in the House committee on constitutional amendments voted to have it debated on the floor ahead of HR 737, which has been pending for more than a month.
Nograles said HR 1109 was easier to pass in the House because it only required a simple majority vote (136) compared to his own resolution, which proposed a specific amendment and, therefore, needed three-fourths of the vote (199).
The latter is more difficult to muster.
“If I do not get three-fourths for 737 after nominal voting, the resolution is lost. It will never see the light of day, it will be buried. So we will not force a vote on 737 if we are not sure we can get three-fourths of the House,” Nograles said.
He added that his resolution would be tackled after HR 1109.
Congress is to adjourn on June 5.
‘That’s nothing’
Informed late Tuesday of the House plenary discussions on HR 1109, Senate President Juan Ponce Enrile responded with a shrug.
“Wala yun (That’s nothing). How can they do it?” he told reporters.
Enrile reiterated the senators’ position that the House move to amend the Constitution without Senate participation was “an exercise in futility.”
“They need the Senate,” he said. “It’s impossible for them to accomplish that. Huwag ninyo nang pag-abalahan yan (Don’t bother with it).”
Said Sen. Francis Escudero: “It is only the President now who can stop the Cha-cha train in the lower house. She is, after all, the head of the newly merged Lakas-Kampi-CMD.”
But in a report, Reuters quoted Interior Secretary Ronaldo Puno as saying: “Nobody believes there will be a constituent assembly in Congress. Nobody, not even the sponsors of the resolution.”
Gabriel Claudio, Ms Arroyo’s political adviser, said he doubted that the House plenary debate on HR 1109 would affect the “certainty and inevitability” of the May 2010 elections.
“I think the leaders of the House and the proponents of Charter change are just being consistent. They have said that as far as the proposal for Con-ass is concerned, they are just after a trigger mechanism for a case to be filed before the Supreme Court so there could be a final interpretation on the manner of voting by Congress in a constituent assembly,” Claudio said at a briefing.
“[The lawmakers] are very consistent about their observation that there is really no more time for actual changes in the Constitution to take place before the elections. So nobody is disputing the certainty of the elections in 2010,” Claudio said.
He added: “This is all the more bolstered by the successful merger of the two administration parties.”
‘Easy’ resolution
Nograles told reporters that HR 1109 was put on the table first because the right of reply and CARP extension bills had been discussed extensively.
HR 1109 needs only a majority vote of the House members to be approved because it does not propose any specific amendment to the Constitution.
“It’s a resolution that’s easy to get the majority [to vote for], as long as they’re all present. We won’t have a hard time getting that,” Nograles said.
“It’s not that we want to put it first. Let’s give it a startup … It’s very simple.
It’s just a resolution. It only needs a majority vote. It does not need three-fourths,” he said.
Asked if the constituent assembly would be convened after the approval of HR 1109, Nograles said he did not think so.
“Maybe after we come back [at the resumption of the session]. Maybe after the SONA (State of the Nation Address),” he said.
If HR 1109 is approved, Nograles will call for a leadership meeting to discuss the next steps.
“It would have to be implemented. How, I don’t know,” he said.
Interior Secretary Puno said the Philippines would “completely lose its credibility” before the international community if it flip-flopped on its assurance on the holding of elections next year.
At a forum organized by the Foreign Correspondents Association of the Philippines (Focap), Puno said his decision to seek the ruling coalition’s nomination as its vice presidential candidate was proof that the polls would push through as scheduled.
According to Puno, amending the Constitution before the 2010 elections was now virtually impossible. With reports from TJ Burgonio and Christine O. Avendaño
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090603-208528/House-rams-through-Con-ass-resolution
Palace soothes no-el fears; Senate shrugs
By Christian V. Esguerra, Leila Salaverria, Christine Avendaño
Philippine Daily Inquirer
Posted date: June 04, 2009
Enter Lozanos
As it happened, Oliver Lozano and his daughter Evangeline Lozano-Endriano, both lawyers, outdid everyone else in filing a petition at the Supreme Court asking that HR 1109 be nullified “in the interest of public welfare” and naming Nograles and the House of Representatives as respondents.
In the five-page petition, Lozano said: “The railroaded HR No. 1109 is unconstitutional or bogus for deviation from the prescribed procedures to amend the Constitution by excluding the Senate … from the complete process of proposing amendments to the Constitution and for lack of thorough debates.”
The high court, through its spokesperson Jose Midas Marquez, said it was prepared to address the issue.
“This is not something new for the court,” Marquez said. “The court is prepared for that. We will deal with that as it comes.”
Lozano said the resolution’s hidden agenda was to extend Ms Arroyo’s term.
He said it was not a proposal by Congress “but allegedly a dictation of the presidency in order to extend the term of the President.”
Told that Lozano had asked the Supreme Court to nullify HR 1109, Senate Minority Leader Aquilino Pimentel said he hoped Lozano “means it sincerely.”
“[But] whatever his petition is, it does not foreclose the right of other parties to bring proper suits before the Supreme Court when needed,” Pimentel said.
As for the senators, he said: “Why should we bother [to take the House to court] with such a patently irregular, unconstitutional act? What a waste of time that will be.”
Sen. Francis Pangilinan said the Lozano petition should be dismissed for being premature.
See:
http://services.inquirer.net/print/print.php?article_id=20090604-208702
Article XVII of the 1987 Philippine Constitution provides that any amendment to, or revision of, the Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. (Sec. 1). Amendments may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. (Sec. 2). The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. (Sec. 3). Any amendment to, or revision of, the Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite. (Sec. 4).
The recent midnight railroading by the House of Representatives of the notorious and obnoxious H.R. No. 1109, which seeks to amend the Constitution without the participation of the independent-minded Philippine Senate, has sparked justified indignation and condemnation by the Filipino people. Many see the resolution as a blatant and ugly attempt of Pres. Gloria Arroyo and her political clique of feudal lords and cronies to perpetuate themselves in power beyond the forthcoming 2010 national elections.
Below are news items detailing the unconscionable birth and railroading of the resolution and showing the despicable stupidity of the legal theory of the Arroyo party and henchmen.
House rams through Con-ass resolution
Nograles: Arroyo told allies to push HR 1109
By Gil C. Cabacungan Jr., Leila Salaverria, Lira Dalangin-Fernandez
Philippine Daily Inquirer, INQUIRER.net
First Posted 02:36:00 06/03/2009
MANILA, Philippines—Using their massive numbers, President Gloria Macapagal-Arroyo’s allies in the House of Representatives Tuesday night crushed all objections and passed a resolution setting up a constituent assembly (Con-ass) amid opposition warnings it would allow Ms Arroyo to stay in power beyond 2010.
In a marathon session that dragged toward midnight, a former administration stalwart, ousted Speaker Jose de Venecia Jr., lambasted the majority vote as “a charade.”
“We oppose this, this charade… Let us amend the Constitution after the term of President Arroyo. That is the time to amend the Constitution of the Philippines. The best way to amend the Constitution is by constitutional convention,” said de Venecia.
Other opposition lawmakers accused the majority of railroading the resolution, which was approved by acclamation at about 11:20 p.m.
Approval of House Resolution No. 1109 empowered Congress to convene itself into a Con-ass in which members of the House and the Senate would vote jointly—not separately—to amend the 1987 Constitution.
Senators have said this would render the upper chamber inutile because the larger House membership could override any Senate objections to proposed amendments.
“This means that under 1109, we are opening the entire Constitution to amendments .... This is where Malacañang’s agenda to keep President Arroyo in power will come in,” Bayan Muna party-list Rep. Teodoro Casiño warned the chamber before the House leadership pushed through with the vote.
“This will allow our politicians to keep themselves in power,” Casiño added.
He said that with the majority’s insistence on such an “unconstitutional move, we are putting our democracy in danger.”
He said the members of the majority voted for HR 1109 on pain of losing their pork barrel.
He said one of the sponsors of the resolution had admitted on the floor that the "whereas clause" in the resolution that prohibits the term extension of the incumbent president and vice president, senators, congressmen, mayors and other elected officials whose term will expire in 2010, and that there would be elections in 2010 was "not binding."
Parañaque Rep. Roilo Golez said the majority pledged to have an exhaustive discussion of the resolution in plenary.
"If we cannot trust them [majority] on this very small pledge, how can the people trust the members of this Congress as a constituent assembly," Golez said.
Gabriela party-list Rep. Luzviminda Ilagan called the proceedings a "night of ignominy" where the administration allies once again used their numbers to push their agenda.
“Tonight we witnessed a railroading,” Ilagan declared on the floor.
Nueva Vizcaya Rep. Carlos Padilla, said the one-sided vote showed the “tyranny of the majority.”
“I believe in democracy, but this tyranny,” South Cotabato Rep. Darlene Antonino-Custodio said.
Quezon Rep. Lorenzo Tañada III said he voted against the resolution because Congress does not need to pass one in its use of its inherent legislative powers. He added he is also against the "crass" manifestation that the House alone can act in amending the Constitution without engaging the Senate.
“This is a massive deception of the Filipino people,” Anak Pawis party-list Rep. Rafael Mariano said. Akbayan lawmaker Walden Bello said the vote was in effect an extension of Ms Arroyo’s term beyond 2010.
"Have we no shame? Let us stop this farce immediately," Bukidnon Rep. Teofisto Guingona III said.
With the resolution’s passage, Nueva Ecija Rep. Eduardo Nonato Joson likened the country to a woman fighting off a rapist, saying “Huwag po kuya [Please don’t, sir].”
“Let us not gang rape our Constitution,” he said.
The House plenary will have to decide on when to convene the Con-ass, as well as the next steps to be taken, according to La Union Rep. Victor Ortega, chair of the committee on constitutional amendments.
To speed up passage of the resolution, the House leadership cut short the interpellation period and limited to 5 minutes the speeches of lawmakers opposing the voting.
At 9:30 p.m., Shariff Kabunsuan Rep. Didagen Dilangalen suddenly moved to close the debate after only five of the 13 representatives lined up— Minority Leader Ronaldo Zamora, Bayan Muna party-list Rep. Satur Ocampo, Guingona, Maza and Golez—were able to speak out against HR 1109.
Dilangalen claimed that the arguments raised against HR 1109 were repetitive.
At 9:53 p.m., the majority voted to shut down the debate and, after a 20-minute break, the minority resumed their opposition against what they called the majority’s “railroading” of the Con-ass.
Padilla said the mad rush to approve HR 1109 had made “this Congress the worst in the annals of history.”
Zamora questioned the haste with which it was being discussed in plenary, with only two session days left and with other key legislation pending for passage.
“Why the short cut? Why not go for the long haul, for the harder route? Why not eschew the easy path and make the amendments to the Constitution as important as the role of the committee on constitutional amendments?” Zamora said.
Gabriela party-list Rep. Liza Maza asked one of the sponsors, Cavite Rep. Elpidio Barzaga Jr., if it was possible under the resolution to postpone the 2010 elections.
"Everything is possible, but it depends on the sound judgment of our colleagues," Barzaga said.
Ortega also echoed the same view, saying that they would rely on "trust" basis in implementing the “whereas clause.”
After an early afternoon caucus, the majority decided to tackle HR 1109 ahead of the other contentious measures pending on the floor, such as the bills on the right of reply and on the extension of the Comprehensive Agrarian Reform Program (CARP).
Speaker Prospero Nograles then announced that the Tuesday plenary session would be devoted to HR 1109. As of 4:30 p.m., 211 lawmakers were present.
Critics have also warned that HR 1109 is a veiled attempt to stop the May 2010 elections and lift term limits on elected officials, including Ms Arroyo.
The original author of the measure, Camarines Sur Rep. Luis Villafuerte, had withdrawn support for it. He said he expected the resolution to be challenged in the Supreme Court.
Those pushing HR 1109 have said that they merely wanted to force the Supreme Court to rule on whether Charter change (Cha-cha) required the vote of three-fourths of all members of Congress, or three-fourths of the House and three-fourths of the Senate.
Arroyo’s tacit approval
The President herself gave tacit approval for Lakas-Kampi-CMD allies in the House to push for the passage of HR 1109, according to Nograles.
He said the decision to push for HR 1109 over his own HR 737—which seeks to lift constitutional limits on foreign investments through regular legislation, or the “fourth mode” of Charter change—was reached during the official merger on Thursday of the ruling parties Lakas-Christian Muslim Democrats and Kabalikat ng Malayang Pilipino (Kampi).
“The leaders of Lakas and Kampi decided in that meeting that this is one of the things that we will push for. I will not deny that she (the President) was present when we decided on that, but she did not say anything,” Nograles said in an interview.
HR 1109 was aggressively promoted for signatures in the House by the President’s elder son, Pampanga Rep. Juan Miguel Arroyo.
Although Villafuerte, the president of Kampi, decided to drop the resolution, Ms Arroyo’s allies in the House committee on constitutional amendments voted to have it debated on the floor ahead of HR 737, which has been pending for more than a month.
Nograles said HR 1109 was easier to pass in the House because it only required a simple majority vote (136) compared to his own resolution, which proposed a specific amendment and, therefore, needed three-fourths of the vote (199).
The latter is more difficult to muster.
“If I do not get three-fourths for 737 after nominal voting, the resolution is lost. It will never see the light of day, it will be buried. So we will not force a vote on 737 if we are not sure we can get three-fourths of the House,” Nograles said.
He added that his resolution would be tackled after HR 1109.
Congress is to adjourn on June 5.
‘That’s nothing’
Informed late Tuesday of the House plenary discussions on HR 1109, Senate President Juan Ponce Enrile responded with a shrug.
“Wala yun (That’s nothing). How can they do it?” he told reporters.
Enrile reiterated the senators’ position that the House move to amend the Constitution without Senate participation was “an exercise in futility.”
“They need the Senate,” he said. “It’s impossible for them to accomplish that. Huwag ninyo nang pag-abalahan yan (Don’t bother with it).”
Said Sen. Francis Escudero: “It is only the President now who can stop the Cha-cha train in the lower house. She is, after all, the head of the newly merged Lakas-Kampi-CMD.”
But in a report, Reuters quoted Interior Secretary Ronaldo Puno as saying: “Nobody believes there will be a constituent assembly in Congress. Nobody, not even the sponsors of the resolution.”
Gabriel Claudio, Ms Arroyo’s political adviser, said he doubted that the House plenary debate on HR 1109 would affect the “certainty and inevitability” of the May 2010 elections.
“I think the leaders of the House and the proponents of Charter change are just being consistent. They have said that as far as the proposal for Con-ass is concerned, they are just after a trigger mechanism for a case to be filed before the Supreme Court so there could be a final interpretation on the manner of voting by Congress in a constituent assembly,” Claudio said at a briefing.
“[The lawmakers] are very consistent about their observation that there is really no more time for actual changes in the Constitution to take place before the elections. So nobody is disputing the certainty of the elections in 2010,” Claudio said.
He added: “This is all the more bolstered by the successful merger of the two administration parties.”
‘Easy’ resolution
Nograles told reporters that HR 1109 was put on the table first because the right of reply and CARP extension bills had been discussed extensively.
HR 1109 needs only a majority vote of the House members to be approved because it does not propose any specific amendment to the Constitution.
“It’s a resolution that’s easy to get the majority [to vote for], as long as they’re all present. We won’t have a hard time getting that,” Nograles said.
“It’s not that we want to put it first. Let’s give it a startup … It’s very simple.
It’s just a resolution. It only needs a majority vote. It does not need three-fourths,” he said.
Asked if the constituent assembly would be convened after the approval of HR 1109, Nograles said he did not think so.
“Maybe after we come back [at the resumption of the session]. Maybe after the SONA (State of the Nation Address),” he said.
If HR 1109 is approved, Nograles will call for a leadership meeting to discuss the next steps.
“It would have to be implemented. How, I don’t know,” he said.
Interior Secretary Puno said the Philippines would “completely lose its credibility” before the international community if it flip-flopped on its assurance on the holding of elections next year.
At a forum organized by the Foreign Correspondents Association of the Philippines (Focap), Puno said his decision to seek the ruling coalition’s nomination as its vice presidential candidate was proof that the polls would push through as scheduled.
According to Puno, amending the Constitution before the 2010 elections was now virtually impossible. With reports from TJ Burgonio and Christine O. Avendaño
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090603-208528/House-rams-through-Con-ass-resolution
Palace soothes no-el fears; Senate shrugs
By Christian V. Esguerra, Leila Salaverria, Christine Avendaño
Philippine Daily Inquirer
Posted date: June 04, 2009
Enter Lozanos
As it happened, Oliver Lozano and his daughter Evangeline Lozano-Endriano, both lawyers, outdid everyone else in filing a petition at the Supreme Court asking that HR 1109 be nullified “in the interest of public welfare” and naming Nograles and the House of Representatives as respondents.
In the five-page petition, Lozano said: “The railroaded HR No. 1109 is unconstitutional or bogus for deviation from the prescribed procedures to amend the Constitution by excluding the Senate … from the complete process of proposing amendments to the Constitution and for lack of thorough debates.”
The high court, through its spokesperson Jose Midas Marquez, said it was prepared to address the issue.
“This is not something new for the court,” Marquez said. “The court is prepared for that. We will deal with that as it comes.”
Lozano said the resolution’s hidden agenda was to extend Ms Arroyo’s term.
He said it was not a proposal by Congress “but allegedly a dictation of the presidency in order to extend the term of the President.”
Told that Lozano had asked the Supreme Court to nullify HR 1109, Senate Minority Leader Aquilino Pimentel said he hoped Lozano “means it sincerely.”
“[But] whatever his petition is, it does not foreclose the right of other parties to bring proper suits before the Supreme Court when needed,” Pimentel said.
As for the senators, he said: “Why should we bother [to take the House to court] with such a patently irregular, unconstitutional act? What a waste of time that will be.”
Sen. Francis Pangilinan said the Lozano petition should be dismissed for being premature.
See:
http://services.inquirer.net/print/print.php?article_id=20090604-208702
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