Wednesday, November 25, 2009

Lady lawyers murdered; UN, EU condemn massacre.

As a lawyer myself, I grieve for the heinous murder of two lady lawyers in Mindanao the other day. They were victims (46 in all) of the infamous politically-motivated Maguindanao massacre. Maguindanao is a Muslim-dominated province in the beautiful but violent Philippine island of Mindanao. Also killed were more than 12 media practitioners and many other ranking political personalities in the province belonging to the opposite camp of the incumbent Muslim provincial governor who heads the Ampatuan political clan. His clan is affiliated with the ruling (but soon to expire lameduck) political party of Pres. Gloria Arroyo.

The two lady lawyers were Atty. Concepcion “Connie” Brizuela, 56, and Atty. Cynthia Oquendo, 35. They were the election lawyers of the Mangudadatu political clan, which is the strongest political opponent of the Ampatuan clan in Maguindanao province. Known as independent-minded and courageous lady advocates of alternative lawyering and human rights, lawyers Brizuela and Oquendo were active pro bono officers of the Union of Peoples Lawyers in Mindanao (UPLM), a local voluntary bar association in that province known for its public interest advocacy.

When a republican country, like the Philippines, directly or indirectly abets the killing of lawyers and journalists, either by reason of selfish political loyalties and unconscionable greed for power of those in command of the levers of local and national power and economic wealth or by reason of the lack of political will to enforce law and order and to defend the justice system on the part of the elective and appointive leaders and bureaucrats of the government or by reason of gross stupidity and glaring ignorance of the rule of law of such inutile leaders, it will not take very long before its helpless and demoralized people see the violent death of its much-cherished democratic system. Such a situation will definitely produce a civil war in any society.

The Maguindanao massacre will go down in the international history of mass media as the worst ever killing of so many journalists on one single date and at one single place. It has been occupying the front pages and the headlines of major world dailies and television channels these past days. It is one of the worst black eyes to the current world image of Philippine democracy (destroying whatever positive points the Philippines has recently garnered by reason of Manny Pacquiao's global historical feat in the realm of boxing and Efren Penaflorida’s much-acclaimed global "CNN Hero" award).

Below is a comprehensive news feature on the killing of the above-named lady Filipino lawyers.

I am also reproducing below a news item about the strong condemnation of the Maguindanao massacre in separate statements issued by the United Nations and the European Union.

Indeed, the whole world should unite to condemn and repudiate the massacre to teach the useless and corrupt Filipino political leaders and military and police generals a lesson by exposing them to global humiliation.

Humiliation is the best and the only teaching method that thieves and pirates disguised as elected politicians in expensive coats and ties and generals in shining military uniforms seem to seriously recognize.

Two spunky women lawyers among the dead
By Leila Salaverria, Jeffrey M. Tupas

Inquirer Mindanao
First Posted 04:14:00 11/25/2009

MANILA, Philippines—One was a passionate grandmother who refused to abandon her advocacy despite death threats. The other was a young, artistic mother who quietly fought for her beliefs.

The two female lawyers, who were reportedly slain in the massacre in Maguindanao on Monday, were among those who had kept hopes for peace and respect for human rights alive in Mindanao.

Concepcion “Connie” Brizuela, 56, and Cynthia Oquendo, 35, were with members of the Mangudadatu clan and at least a dozen media practitioners who were waylaid and murdered in Maguindanao by a group of armed men now being linked to the Mangudadatus’ political rivals.

Brizuela was a classmate of Buluan Vice Mayor Esmael “Toto” Mangudadatu, who had asked his wife, two sisters, Brizuela and Oquendo to file his certificate of candidacy for governor of Maguindanao in Shariff Aguak town.

Brizuela, the treasurer of the Union of Peoples Lawyers in Mindanao (UPLM), is known to her friends as a brave woman, such that her fellow lawyer Beverly Musni refused to believe that Brizuela was gone unless her own family relayed the news.

“She will fight. She will live. She’s not someone who would give up easily,” Musni told the Inquirer. “Her laughter is full of life. I refuse to believe she’s gone.”

Musni said that without official word from Brizuela’s family, she would consider her friend abducted.

Wellspring of strength

Brizuela has three grown children and doted on her grandchildren. To her friends and colleagues, she was a “wellspring of strength,” Musni added.

Brizuela’s small frame concealed the big heart she had for the oppressed, someone whose voice emanated from the pain and struggle of the victims of human rights violations, according to her friends.

Over the years, Brizuela was no stranger to death threats.
Brizuela had the gentleness of an “Ilongga” who was also firm and determined.

She was not known for being reckless as she would tell fellow human rights lawyers to be reminded of the dangers and threats that come with the territory.

Undeterred by the powerful

“In her diminutive frame loomed large a feisty people’s lawyer and human rights defender undeterred by the rich and the powerful in Mindanao,” said Bishop Felixberto Calang, convenor of the Initiatives for Peace Mindanao (InPeace), the group that Brizuela helped convene.

Calang said Brizuela had been at the forefront of the campaign against the climate of impunity.

“We are outraged that it has caught up with her through this tragic and gruesome death. We will miss her,” Calang said.

Lawyer Carlos Isagani Zarate said Brizuela’s death was revolting. “She’s a great loss not only to us but also to the people whose rights she fought for. We lost an elder sister. She will be sorely missed,” said Zarate, UPLM secretary general.

Zarate said Brizuela could not allow injustice to happen to anyone, without her doing something about it. “She always stood for the people. She was a people’s lawyer,” the
UPLM chief said.

Brizuela, one of the founding members of UPLM, the precursor of the National Union of People’s Lawyers (NUPL), was also one of those who convened the group Lawyers for Peace.

Libel suit from Piñol

A former broadcaster who did not flinch in criticizing wrongdoers, Brizuela had been one of the leaders of a group fighting for good governance in Cotabato.

In 2005, Brizuela and three others were jailed following a P5-million libel suit filed against them by former North Cotabato Gov. Emmanuel Piñol.

Brizuela, a Kidapawan native, came from a landed family but embraced human rights and public-interest cases when she entered the law profession, according to Zarate.

She also handled cases against military officials, the police and civilian armed groups.

“This was when she impressed us. She chose to do public-interest lawyering among women,” Zarate said.

While undeterred by threats, Brizuela also knew how to protect herself.

When the menacing messages started coming in, she relocated to Bacolod, although she crossed to Mindanao to attend to her cases, Zarate said.

Dutch fact-finding mission

Bayan Muna party-list Rep. Neri Colmenares, who worked with Brizuela in the NUPL, remembers his colleague as a passionate woman who actively participated in the fact-finding mission of the Dutch Lawyers for Lawyers group that probed the threats and harassment against lawyers and judges.

“I received a message that more people will be killed and one of them would be me … I received several death threats,” Brizuela told the mission then.

The group had produced a video report of its probe, and in it, Brizuela recalled her experiences and warned of the danger of attacking lawyers and justices.

“If they can kill lawyers, practically anybody. If they can kill judges, where cases are pending, then they can do that to ordinary people,” Brizuela said.

Oquendo at MSU

Oquendo was also a member of the UPLM.

Her friend, Violy Gloria, an Iligan-based journalist, recalled that Oquendo was involved in activism and health-related causes when they were at Mindanao State University (MSU). Oquendo had taken up nursing there.

But Oquendo’s brush with the militant life did not sit well with her mother, and she was later transferred to Cebu where she took up political science and became a lawyer, Gloria said.

As a lawyer, Oquendo went for “alternative lawyering” and was active in social justice movements. Gloria said that though she and Oquendo had not been meeting regularly, they had kept in touch through social networking sites. She learned that Oquendo had gotten married and had children.

Playing piano

In school, Oquendo was active in church and expressed herself through playing the piano, according to Gloria.

Oquendo did not keep an active social life back then and devoted her time to studying, activism and church, she added.

Oquendo was a quiet girl, but she was not weak. She stood fast for what she believed in, according to Gloria.

“As I know her, if she will be in a conflict situation, she would not be on the frontline. But her strength is that she will stand for what she believes is right,” Gloria said.

Friendster profile

Oquendo’s Friendster profile listed some of her hobbies—defending, cross-examining lying witnesses, ukay-ukay (used clothes), art classes and driving alone.

She was also interested in mental telepathy and the unknown. Her profile picture was that of three young boys, presumably her sons.

Her Friendster page has also been filled with messages of love, gratitude and lament.


UN chief, envoys condemn ‘brutal’ Maguindanao massacre
By Veronica Uy
First Posted 07:49:00

MANILA, Philippines—(UPDATE 3) United Nations Secretary General Ban Ki-moon led an international outcry against the “brutal” violence in southern Philippines, where more than 40 civilians were killed in relation to the upcoming local elections.

Ban condemned “this heinous crime” and called for the perpetrators to be brought to justice in a statement issued by his spokesperson and released by the UN Manila office.

The European Commission, the European Union’s executive arm, also condemned the killings in Maguindanao.

“I condemn in the strongest possible terms the barbaric killing on 23 November 2009 of innocent civilians, including women, journalists, and lawyers, who were preparing to participate in the electoral process in the Philippines,” said European Commissioner for External Relations Benita Ferrero-Waldner.

“I call for calm in the period leading up to the forthcoming elections scheduled for May 2010. In the face of this atrocity, the rule of law and democracy has to prevail,” she said in a statement released by the EC Delegation to the Philippines.

British Ambassador to the Philippines Stephen Lillie gave a similar statement.

"I condemn this brutal massacre of innocent civilians, including women, journalists and lawyers. I hope that the authorities in the Philippines will take urgent action to bring the perpetrators to justice and prevent further escalation of violence in the run-up to next year's elections here," the ambassador said.

"Effective action will be crucial in maintaining confidence in the Philippines' commitment to protect human rights," Lillie said.

The United States, through its embassy here, also denounced the killings “in the strongest possible terms.”

All four extended profound condolences to the families of the victims.

“The Secretary General extends heartfelt condolences to the families of the victims and hopes that no effort will be spared to bring justice and to hold the perpetrators accountable,” the UN statement said.

The UN, the EU, and the British embassy have a number of programs on human rights in the Philippines.

EC’s Ferrero-Waldner was optimistic that justice will prevail in this case. “I note with satisfaction the declaration of the President of the Philippines, that all will be done to bring the perpetrators to justice,” she said.

President Gloria Macapagal-Arroyo has declared a state of emergency in Maguindanao province, among other areas, following Monday’s killings, which have been described as the worst election-related violence in the nation’s history.


Tuesday, November 24, 2009

Threats to democracy and rule of law

The greatest threats to democracy and the rule of law in the Philippines are not the communist and Muslim rebels or the Abbu Sayaff kidnappers or the Kuratong Baleleng-type organized criminal syndicates.

The real and insidious threats to Philippine democracy are (a) the educated and rich but corrupt and violent Filipino politicians who proclaim themselves as the defenders of freedom and justice and (b) the indifferent and coward Filipino voters who justify their callous inaction and silence by calling themselves as poor and abused victims of capitalist exploitation while selfishly commercializing their precious individual votes by selling them to the corrupt feudal warlords masquerading as political visionaries in their villages.

The beautiful Philippine island of Mindanao is the epitome of such a deplorable political cancer since time immemorial.

Mindanao is one of my greatest frustrations as a Filipino lawyer who is willing to die for democracy and freedom in his country.

The island is billed as the bread basket of the Philippines and the ultimate savior of Philippine economy by reason of its huge size and untapped resources.

But at the rate the massive political killings, violence and frauds are escalating in the island there seems be no hope and optimism in the foreseeable future in the political and justice systems of the island.

For the past few days, local and world media establishments have been carrying dramatic reports on the mass murder of almost 40 persons in Maguindanao (22 confirmed dead) committed by local Muslim politicians affiliated with the ruling party of Pres. Gloria Arroyo.

Many of the dead were women and media practitioners who were accompanying a group of local politicians to file their certificates of candidacy with the local office of the Commission on Election (Comelec) in the province. (The pompous parade turned into a mass murder). Some of the victims were reportedly raped and beheaded by their killers.

The Philippine campaign period for the 2010 general elections has not yet officially started but as of now the number of fatalities and casualties has begun to rise.

The “Mindanao card” has always been the last resort of national politicians who aspire to win by fraudulent and violent means in cahoots with the local Comelec officials, military and police officers, and local political and feudal clans.

Almost all Philippine presidents since the end of World War II have used and abused the Mindanao card, the latest among them being Pres. Arroyo herself, whose “Hello, Garci” scandal in 2005 almost brought her down from power. Ex-Philippine dictator Ferdinand Marcos was the most prominent master of the Mindanao card.

The Philippines describes itself as the showcase of American-style democracy in Asia, as the only Christian country in Asia, as the first republic in Asia, and as a melting pot in Asia (having been a colony of Spain for 300 years and America for 50 years).

It brags itself as a country with a very high literacy rate and with millions of well-educated, English-speaking and productive workers.

It claims that its elected leaders and technocrats are foreign-educated academicians, top lawyers, professional military leaders, selfless doctors and visionary philosophers who claim to possess a noble and clear vision of genuine democracy.

But all of the above are empty bravado and hypocritical mass self-hypnosis propagated by its ruling elite.

I estimate that it will take 200 years for the Philippines to genuinely reform and transform itself into a model democratic nation-state and to truly practice the noble tenets of truth, freedom and justice.

As a Filipino who loves his country, I am very sad to openly state this.

Let me share with you some of the recent news on the Maguindanao mass political killings.

State of emergency declared after massacre
(The Philippine Star) Updated November 24, 2009 02:01 PM

MANILA, Philippines (AP) – President Arroyo placed two southern provinces under a state of emergency Tuesday, giving security forces free hands to pursue gunmen who killed at least 24 people in one of the country's worst election massacres.

The emergency measures, including checkpoints and random searches by authorities, will remain in place until the president is confident that law and order have been restored in the region, Mrs. Arroyo spokesman Cerge Remonde said.

The attack Monday was on a convoy of vehicles filled with supporters of a gubernatorial candidate along with his relatives, including his wife, and several journalists. The candidate, Ismael Mangudadatu, who was not a part of the convoy, accused his powerful political rival of being behind the slayings.

The government stressed that it would go after the culprits, regardless of where the investigation leads.

"No one will be untouchable," Remonde told reporters, calling Monday's killings "unconscionable."

Officials were still trying to determine the exact number of people intercepted by about 100 gunmen and taken to a remote mountainous area, said Interior Secretary Ronaldo Puno.
"We're hopeful that some people escaped, and we're hoping to find them alive," he said.

Police said the convoy of about 40 people was going to register Mangudadatu, vice mayor of Buluan township, to run for provincial governor when they were stopped.

Soldiers and police later found 24 bodies, including those of Mangudadatu's wife, Genalyn, and his two sisters, sprawled on the ground or shot in their vehicles about three miles (five kilometers) from where they were ambushed, police spokesman Leonardo Espina said.
Mangudadatu said Tuesday that four witnesses had told him the caravan was stopped by gunmen loyal to Andal Ampatuan Jr., a town mayor belonging to a powerful clan and his family's fierce political rival.

He refused to name the witnesses or offer other details.

"It was really planned because they had already dug a huge hole (for the bodies)," Mangudadatu said.

The National Union of Journalists of the Philippines said at least 10 local reporters were part of the convoy. Espina said they identified the remains of at least one journalist. Joy Sonza, head of a small private TV station, UNTV, said investigators told him they found the bodies of his correspondent and cameraman. A driver and an assistant cameraman were still missing, Sonza said.

If confirmed, it would be the "largest single massacre of journalists ever," according to Paris-based Reporters Without Borders.

The army and police were searching for as many as 16 other people who were missing, military spokesman Lt. Col. Romeo Brawner said, adding that troops were looking for more bodies in areas that appeared to have been recently dug up.

A backhoe was apparently used to bury the bodies, said army commander Lt. Col. Rolando Nerona.

Puno vowed there would be no sacred cows in the investigation. "Within day or two, we should be starting to call people or making arests. We have some information already about specific names but we can't disclose them," he said.

National police chief Jesus Verzosa relieved Maguindanao's provincial police chief and three other officers of their duties and confined them to camp while being investigated. One of the police officers was reported to have been seen in the company of the gunmen and pro-government militiamen who stopped the convoy, police said.

The Ampatuans were unreachable for comment.

The region, among the nation's poorest and awash with weapons, has been intermittently ruled by the Ampatuan family since 2001. It is allied with Mrs. Arroyo.

Mrs. Arroyo's political adviser Gabriel Claudio said he was meeting with Zaldy Ampatuan, governor of the Automous Region in Muslim Mindanao, when the killings occurred Monday to try to mediate in the long-running rivalrly between the the Ampatuans and the Mangudadatus.

"I really thought that at the time that the affinity, the relations between the two families, will be affirmed," he said.

He said the most important thing was to ensure there was no more violence.

"There has to be swift and decisive justice," Claudio said.

Philippine elections are particularly violent in the south because of the presence of armed groups, including Muslim rebels fighting for self-rule in the predominantly Roman Catholic nation, and political warlords who maintain private armies.

The last elections in 2007 were considered peaceful, even though about 130 people were killed.
The decades-long Muslim insurgency has killed about 120,000 people since the 1970s. But a presidential adviser, Jesus Dureza, said Monday's massacre was "unequaled in recent history."
Julkipli Wadi, a professor of Islamic studies at the University of the Philippines, said he doubted the national government's resolve in trimming the powers of political dynasties like the Ampatuans because they deliver votes during elections.

"Because of the absence of viable political institutions, powerful men are taking over," he said. "Big political forces and personalities in the national government are sustaining the warlords, especially during election time, because they rely on big families for their votes."


Maguindanao massacre
By James Mananghaya (The Philippine Star) Updated November 24, 2009 12:00 AM

MANILA, Philippines - Forty-three persons – including a politician about to file her and her brother’s certificates of candidacy (COCs), as well as journalists covering the event – were confirmed killed when heavily armed men waylaid the group on its way to the local Commission on Elections (Comelec) office in Maguindanao.

Armed Forces of the Philippines (AFP) Public Information Office chief Lt. Col. Romero Brawner confirmed that as of yesterday afternoon, ground troops had recovered 21 bodies – 13 women and eight men – from the massacre site in Barangay Saniag, Ampatuan town.

Supporters of Buluan Vice Mayor Toto Mangudadatu and Mangudadatu Vice Mayor Eden Mangudadatu and their companions were on their way to the Comelec office to file COCs at around 10:30 a.m. when they were blocked at a checkpoint manned by some 100 Maguindanao police personnel and armed civilian volunteers allegedly led by Datu Unsay town mayor Datu Andal Ampatuan Jr.

Ampatuan was not available for comment.

Reports from the Army’s 6th Infantry Division reported that a certain Police Senior Inspector Dicay of Shariff Aguak accompanied Ampatuan. Three vehicles owned by the Mangudadatu’s were found burned.

Toto Mangudadatu, who was not with the convoy, is reportedly eyeing the gubernatorial seat in the May 2010 elections and had asked his wife to file his COC.

Aside from Bai Eden, the other victims were identified as Genalyn Tiamzon-Mangudadatu, the vice mayor’s wife who was raped before being killed; lawyers Connie Brizuela and Cynthia Oquendo and her father, Bai Farinah Mangudadatu; Faridah Sabdulah; Manguba Bai Mangudadatu, Toto’s aunt; Farida Mangudadatu, Toto’s youngest sister.

The journalists were identified as Ian Toblan, Leah Dalmacio, Gina dela Cruz, Joy Duhay, Andy Teodoro, Mac-Mac Areola, Bart Maravilla of Bombo Radyo Koronadal, Henry Araneta of dzRH Cotabato, Bong Reblando of Manila Bulletin and Neneng Montano of local radio dxCP.

Also reported killed were Rasul Daud, driver of Mangudadatu, Wahida Ali Kaliman, Farida Sabdula, Zorayda Vernan, Victor Nuñez, Zaida Abdul, Pinky Balayman, Ella Balayman, Rahima Piopo, Abdullah Hajji, Patrick Pamansan, Meriam Calicol, a certain Unto and a certain Chito, and eight others who were not included in the list.
Toto said his wife and her companions left Buluan town at about 9 a.m. on board several vehicles and were flagged down by armed men at Barangay Kauran in Ampatuan, Maguindanao some 30 minutes later.

“Six members of the group that was to bring my certificate of candidacy to Shariff Aguak were beheaded by the gunmen that flagged them down at a portion of a highway near Shariff Aguak. The police and the military have to do something,” Mangudadatu told Catholic station dxND in Kidapawan City.

“I opted not to provide armed security escorts to the group to avoid possible tension during the filing of my COC,” he added.

The Mangudadatu clan is known to have a long-running feud with the family of Maguindanao’s incumbent Gov. Andal Ampatuan Sr., who police said is known to have his own private army.

Brutal death

Reporters have been trying to get information on the incident from the spokesman of the 6th ID, Col. Jonathan Ponce.

He, however, has not responded even if his staffers have confirmed that he is just inside the Army camp.

Sources from the Army’s 601st Brigade said unidentified armed men indeed flagged down several vehicles at a portion of the Cotabato-Isulan Highway in Kauran area,
which is at the boundary adjoining Maguindanao and Sultan Kudarat provinces.

The provincial police director of Maguindanao could not be reached for comment.
The tension worsened when text messages started circulating that the gunmen executed and killed four of the reporters who were with the group.

Local officials in towns at the border of Maguindanao and Sultan Kudarat said they still have to confirm from barangay leaders the veracity of the text messages that four journalist that accompanied the wife of Mangudadatu had been decapitated.

A source who requested anonymity said the victims were shot at random, and some were decapitated with chainsaws.

The same source added that the killers used a backhoe to dig mass graves where the victims were buried.

Brig. Gen. Medardo Geslani, chief of the army’s 601st Infantry Brigade, said they are now validating the reports.

Palace up in arms

Malacañang expressed shock and outrage over the executions and vowed that justice would be served.

Presidential Adviser for Political Affairs Gabriel Claudio said the Palace is still trying to determine the facts behind the incident.

“We are in shock and total outrage,” Claudio said. “Justice will be served and the perpetrators will be punished, whoever they are.”

Presidential Adviser for Mindanao Jesus Dureza recommended to President Arroyo to immediately declare a state of emergency in Maguindanao.

“This is a gruesome massacre of civilians unequalled in recent history. Even women and working mediamen were not spared. I grieve for my friends in the media and all those killed while doing their job,” Dureza said in a statement.

“There must be a total stop to this senseless violence and carnage. I strongly recommend that a state of emergency be imposed in the area and everyone disarmed.
Anything less will not work,” he said.

Claudio said he had a brief meeting with ARMM Gov. Zaldy Ampatuan at the Palace to discuss Sulu politics.

Ampatuan was accompanied by outgoing Sulu Rep. Munir Arbison and other local officials. They sought a meeting to be assured of fair arbitration from the leaders of the Lakas-Kampi-CMD, as Sulu Gov. Abdusakur Tan is also fielding his own local slate against Arbison’s group.

He said there was no discussion about Maguindanao politics.

NUJP condemns abduction of mediamen

Meanwhile, the National Union of Journalists of the Philippines (NUJP) condemned the abduction and death of their colleagues.

“We demand that government, from Malacañang to the (ARMM) and Maguindanao, and its security forces, move swiftly to resolve this crisis and ensure that no harm befalls the hostages; and, if true that violence has been inflicted on some of the hostages, to ensure swift justice on the perpetrators, no matter who they are,” the NUJP said in a statement.

“Taking hostage someone about to file a certificate of candidacy is, by itself, a brazen challenge to efforts to strengthen our admittedly fragile democracy. And, if true that a local government official and a police officer are involved, then it says a lot about how far government has gone to eradicate the warlord politics that continues to reign over many of our provinces, very often the poorest and most underdeveloped,” the NUJP added.

“But to take hostage journalists who were merely going about their job of informing the public worsens the already heinous crime and elevates it into an assault on the Constitution itself and the freedom of the press and of expression it enshrines, and the people’s right to know which these freedoms serve,” NUJP said.

Pimentel: Send the Marines

At the Senate, minority leader Aquilino Pimentel Jr. recommended sending the Marines to Maguindanao to control the peace and order situation.

Pimentel condemned the killings, which came on the heels of the filing of COCs for local and national posts.

He also said that the military should take control of the area to avoid further bloodbath.
“It’s going to lead to a bloodbath unless the government steps in. Arrest and jail whoever is responsible even if he might be a warlord. Send the Marines if need be,” Pimentel said. –With John Unson, Edith Regalado, John Paul Jubelag, Jaime Laude, Cecille Suerte Felipe, Christina Mendez, Paolo Romero


On priests and estafa

One sign that the justice system of Singapore effectively works (as contrasted with that of the Philippines) is its ability to prosecute, convict, and punish all guilty persons regardless of their status and influence in society and its ability to shield itself from the debilitating and cancerous effects of graft and corruption and the weakening influence of partisan politicians.

An example is the recent conviction of a high-living and influential Buddhist monk who ran one of Singapore's most well-known charities. He was jailed for 10 months for fraud.

The monk, Shi Ming Yi, 47, was handed the sentence after being convicted last month of conspiring with his personal aide, Raymong Yeung, 34, to cheat the Ren Ci charity out of 50,000 Singapore dollars (36,000 US).

In the Philippines, it is impossible to envision a scenario where influential, well-connected and well-oiled inter-parochial catholic or protestant preachers (like Mike Velarde, Eddie Villanueva, et. al.), prominent local diocesan priests, and big-time and famous bishops or archbishops would be indicted, much less convicted, for estafa or for any financial felony involving the corporate funds and assets of their religious entities, despite the fact that it is common knowledge among Catholics here that many of such personalities do not regularly account for and publish the financial conditions of their religious orders, dioceses, parishes, or inter-parochial movements.

Under the Code of Canon Law, the parish priest or the bishop is the king, so to speak, in his parish or diocese with respect to both its spiritual or religious activities and its corporal and social-action funds and assets.

Although the code allows for a civilian accounting and audit committee and for a ceremonial parish pastoral council, such bodies never really effectively work (other than to serve as the volunteer assistants and unpaid staff of the priest or bishop or as members of their de facto fans club) or courageously serve their ultimate purpose of fiscalization because of the overwhelming influence of the priest or bishop, aggravated by the blind obedience and unquestioning religiosity of conservative catholic lay leaders who would rather keep quiet than directly or indirectly offend their priest or bishop with questions on the financial conditions of their parish and diocese, whether such questions are harmless, well-intentioned, incisive or critical.

How do you free, save and exempt a guilty estafador priest or bishop from criminal and civil liability in the Philippines? Here are some of the routine methods:

1. Transfer the priest to another parish where he is unknown, preferably in another diocese at least 300 kilometers way from his former parish. Anyway, the social and historical memory of the Filipinos is very short.

2. Influence the parish pastoral council to keep quiet about any financial scandal, invoking the greater interest of the church as the motive. Assure them of spiritual salvation and future efforts to correct the situation. Give them free sacraments and other pastoral favors in return.

3. If the victimized charitable entity is a corporation, influence the Securities and Exchange Commission (SEC) to be anemic in its investigation (or better yet, not to commence any legal inquiry or audits at all, which the SEC would surely appreciate because of its laziness and incompetence and lack of field manpower).

4. Manage and bribe the mass media not to explode the scandal in the press. Assure their editors and reporters of spiritual salvation.

5. When things get worse, secure the affidavits of desistance, waivers or quitclaims from the members of the charity, parish pastoral council, or religious entity to free and exempt the priest or bishop from the effects of the scandal. No witnesses, no cases.

6. Use local and national politicians to influence the prosecutors and judges handling the criminal and civil cases involving priests and pastors, when such cases finally reach the justice system. These politicians are merely returning the favor to the church for the votes of its parishioners that it gives them during election times. (Priests and bishops secretly maintain and support their favorite local and national politicians. It is a quid pro quo scheme).

7. Others.

Here is the news item on the matter.

High-living Singapore monk jailed for fraud

SINGAPORE — A high-living Buddhist monk who ran one of Singapore's most well-known charities was Saturday jailed for 10 months for fraud, court officials said.

Shi Ming Yi, 47, was handed the sentence after being convicted last month of conspiring with his personal aide, Raymong Yeung, 34, to cheat the Ren Ci charity out of 50,000 Singapore dollars (36,000 US).

Yeung was sentenced to nine months for the crime.

Shi was the founder of Ren Ci -- a charity that provides subsidized medical care to
elderly patients -- and had lived the high life, owning several luxury cars and properties
in Singapore and Australia, before being caught.

He had also owned a horse in Australia.

In 2004, Shi, who was Ren Ci's chief executive at the time, made the unauthorized loan of 50,000 dollars from the charity's coffers to Yeung, who used the money to pay for a friend's home renovation in Hong Kong.

The pair said the money was loaned to a shop affiliated with the charity, but external auditors found this to be untrue.

Singapore is a predominantly Buddhist country, with 42.5 percent of the population over 15 subscribing to the religion.


Dialects in the courts

In my previous blogs, I posted a letter of mine addressed to the Chief Justice Reynato Puno (who was then a senior associate justice) containing the results of my researches on the intent of the judiciary to study the application of the native Filipino language in all court proceedings in the Philippines.

At that time, he was tasked by the Supreme Court to head the committee that would study the application of Filipino in Philippine court proceedings.

I sent the letter to him as a free service of the Las Pinas City Bar Association (LPBA), Inc., which I founded in 2001, to aid his committee in its aforecited task.

It is one of the corporate objectives of the LPBA to actively participate in all major deliberations and advocacies involving the rule of law and the improvement of the justice system in the Philippines.

The other day I was gladdened by the fact that in the Tagalog province of Bulacan, through the efforts of Tagalog-speaking judges in that province, the plan to pilot test the application and use of Filipino in the courts in that province has started to be implemented.

Below is a news item on the matter.

I invite the comments of my readers on the issue of whether or not it is wise, useful, and practical to use Filipino (and major regional dialects, for that matter, e.g., Bisaya, Ilongo, Waray, Bicolano, Ilocano) in court proceedings and legal instruments, and what procedural and substantive rules to apply and observe thereon.

Feel free to post your comments.

This issue is one important topic that that must explored and debated well by all Filipinos (not only by jurists and academicians) because it concerns all of us as one nation-state and because it has long-term effects on the equitable and effective operation of the justice system of the country and the fulfillment of the constitutional provision on access to justice by the poor, the oppressed, and the ignorant who compose the great majority of Philippine society.

Here is the news item on the matter.

MALOLOS CITY , Philippines – The use of the national language in court proceedings gained further foothold in Bulacan as legal judges, lawyers and other court employees underwent a training seminar yesterday.

Aimed at the full implementation of the use of Filipino language in regular court trials next year, the training seminar was initiated by the Integrated Bar of the Philippines (IBP) Bulacan chapter in collaboration with Philippine Judicial Academy and the Supreme Court of the Philippines.

The training seminar is dubbed as “Pagsasanay ng mga Hukom Ukol sa Paggamit ng Wikang Pilipino sa Hukuman.”

Lawyer Renato Samonte, the president of IBP-Bulacan chapter said the seminar was designed to prepare judges, lawyers and even court stenographers.

He said they planned to pilot the project in seven regional trial courts here and in the municipal trial court in Guiguinto, Bulacan.

This was affirmed by leading proponents on the use of the Filipino language in court proceedings like retired Justice Jose dela Rama, the coordinator of the PHILJA sub-committee on the Use of Flipino Language in Court Proceedings, and retired Judge Cezar Peralejo.

As a former judge in Makati RTC, Dela Rama is best remembered when he penned his ruling in Filipino on the libel case filed by the late President Corazon Aquino against the late STAR publisher Maximo Soliven and late STAR columnist Louie Beltran.

On the other hand, Peralejo has published a legal dictionary in Filipino which he said will greatly help court workers in the use of Filipino in court proceediongs.

Two years ago, Dela Rama initiated the use of Filipino in a criminal case proceedings at the sala of Judge Manuel Siayngco here.

He also initiated the use of the national language during lectures at the Marcelo H. Del Pilar Law School in the Bulacan State University here early this year by doing the lecture himself.

Dela Rama is aided by former Judge Hermin Arceo, who also delivered a lecture on Constitutional Law in Filipino.

Like Dela Rama, Arceo is a Bulakeñyo who have translated the 1992 Local Government Code into Filipino.


On sheriffs and pigs

In the recent administrative case of ATTY. HECTOR P. TEODOSIO vs. ROLANDO R. SOMOSA, et. al., En Banc, A.M. No. P-09-2610 (per curiam), August 13, 2009, the Philippine Supreme Court found the respondents, Sheriffs Gani Lacatan and Camilo Divinagracia, Jr., Deputy Sheriffs of the Regional Trial Court of Iloilo City, and Sheriffs Rolando Somosa, Edgardo Cordero and Rodolfo Haro, Deputy Sheriffs of the Municipal Trial Court in Cities of Iloilo City GUILTY of grave abuse of authority amounting to GRAVE MISCONDUCT, and were ordered DISMISSED from the service with forfeiture of all benefits and privileges, except accrued leave credits, if any, and with prejudice to re-employment in any branch or agency of the government, including government-owned or controlled corporations.

This administrative case involving judicial employees of a major Philippine province in the south was so embarrassing (to the point of being educational, if such a concept exists) that big Philippine dailies in Manila carried reports thereon, which I am reproducing at the end of this blog.

I wish to digest the abovementioned Supreme Court decision for legal research purposes of the visitors of this blog.

The case arose out of a letter-complaint dated July 3, 2007 filed by complainant Atty. Hector P. Teodosio against respondent Sheriffs Gani Lacatan and Camilo Divinagracia, Jr., Deputy Sheriffs of the Regional Trial Court (RTC) of Iloilo City, and respondents Sheriffs Rolando Somosa, Edgardo Cordero and Rodolfo Haro, Deputy Sheriffs of the Municipal Trial Court in Cities (MTCC) of Iloilo City, with the Office of the Court Administrator (OCA) relative to the irregular manner of implementing the writ of execution issued by the MTCC, Branch 2, Bacolod City, Negros Occidental in Criminal Case Nos. 03-6-5516 to 03-6-5542, 03-9-6218 to 03-9-6270, 03-10-6498 to 03-10-6549, entitled People of the Philippines v. Mary Ann Ng (for violation of BP Blg. 22, bouncing check law).

On August 27, 2004, the MTCC, Branch 2, Bacolod City, Negros Occidental, rendered a Decision on the civil aspect of the abovecited criminal cases filed by Lita Gamboa against Mary Ann Ng, President and Chief Executive Officer (CEO) of Nueva Swine Valley, Inc. (Nueva Swine). Said decision was based on an amicable settlement entered into between Ng and Keylargo Commodities Trading (Keylargo), represented by Lita Gamboa, wherein the former agreed to pay on installment basis her civil liability in the form of post dated checks she would issue, for and in behalf of Nueva Swine.

When Ng failed to comply with the terms and conditions of the judgment, Gamboa, through her counsel, moved for the execution of the decision. On August 4, 2006, the MTCC issued a Writ of Execution, which commanded the sheriffs to cause the execution of the aforesaid judgment on the civil aspect of the said criminal cases; to levy the goods and chattels of the accused, except those which are exempt from execution and to make the sale thereof in accordance with the procedure outlined by Rule 39, Revised Rules of Court, and in such cases made and provided together with all your lawful fees for the service of this Writ. The writ further stated that in case sufficient personal property of the accused could not be found whereof to satisfy the amount of the said judgment, the sheriffs were directed to levy the real property of said accused and to sell the same or so much thereof in the manner provided for by law for the satisfaction of the said judgment. The sheriffs were commanded only sell so much of the personal or real property as was sufficient to satisfy the judgment and lawful fees, and make a report to the trial court every thirty (30) days on the proceedings taken until the judgment was satisfied in full, or its effectivity expired.

On May 31, 2007, the respondent sheriffs proceeded to Nueva Swine’s hog farm at Barangay Talokgangan, Banate, Iloilo to implement the writ. Upon reaching the place, they introduced themselves and explained to the officer-in-charge (OIC) their purpose, as accused Ng was not around. They then served upon the OIC a copy of the writ, together with the decision, and demanded the money judgment. When the OIC failed to produce the money, respondents levied and took away 675 pigs and, thereafter, delivered them to Keylargo for safekeeping. A Notice of Levy on Execution was issued on the same day to accused Ng.

On June 1, 2007, complainant in this administrative case Atty. Teodosio (counsel for Nueva Swine’s hog farm) sought a 72-hour Temporary Restraining Order (TRO) with the RTC, Branch 66 of Barotac Viejo, Iloilo, which the latter granted, enjoining respondents, their agents and other persons acting for and on their behalf, from removing, transferring, disposing of and selling the swine in the hog farm of Nueva Swine in Brgy. Talokgangan, Banate, and in Nueva Invencion, Barotac Viejo, Iloilo, and from selling or disposing the swine already taken, which would be preserved and maintained in its present location under supervision of the sheriff of the court.

Despite the TRO, respondent sheriffs issued a Sheriff’s Notice of Sale on Execution, setting the auction sale of the pigs levied on June 5, 2007, 10:00 a.m., at the Victorias Milling Corporation Farm Site in Victorias City, Negros Occidental.

On June 4, 2007, Judge Rogelio Amador of the RTC, Branch 66 of Iloilo City issued an Order extending the 72-hour TRO to a full 20 days, or until June 21, 2007, and setting the case for a preliminary injunction on June 15, 2007. Said Order was served and received by the Provincial and City Sheriffs of Iloilo.

On June 5, 2007, respondents personally turned over all levied hogs to the MTCC, Branch 2 of Bacolod City.

On June 7, 2007, Branch Sheriff Emilio Portal of the MTC, Branch 2, Bacolod City, conducted the public auction sale of the levied hogs.

In a Memorandum dated February 4, 2009, the Office of the Court Administrator (OCA) agreed with the findings of the Investigating Judge establishing the guilt of the respondents.

The OCA stated that Section 9 of Rule 39 of the 1997 Rules of Civil Procedure provides that in the execution of a judgment for money, the officer enforcing such judgment shall demand from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.

The OCA added that in the implementation of the writ of execution, respondents failed to strictly comply with the above rule. They failed to show that they demanded from accused Ng the payment of the judgment obligation. Records show that the writ was served on an officer of Nueva Swine who is not a party to the case and not on accused Ng. In their Return of Service dated June 28, 2007, respondents stated that when they arrived in the hog farm of Nueva Swine, accused Ng was not present. Mr. Donglal, an officer of the corporation, allegedly contacted accused Ng but it was not shown whether respondents talked to the former and demanded from her the payment of her obligation. In his affidavit, Mr. Donglal, denied talking with accused Ng nor did respondents ask him to talk to her. Thereafter, respondents demanded from Mr. Donglal the payment of the judgment obligation. When the latter failed to pay the obligation, respondents levied the corporation’s properties. Again, this is in violation of the rules as the hogs levied upon by respondents are not the personal properties of accused Ng.

The OCA stated that respondents’ argument that the checks, subject of the criminal case, were issued by accused Ng as president of Nueva Swine and for the benefit of the corporation was irrelevant.

The OAC added that the Writ of Execution dated August 4, 2007 issued by MTCC, Branch 2, Bacolod City, specifically directed the sheriff or his deputies to cause the execution of the judgment on the civil aspect of the cases; to levy the goods and chattels of the accused, except those which are exempt from execution and to make the sale thereof in accordance with the procedure outlined by Rule 39, Revised Rules of Court. If the personal property of the accused is insufficient to satisfy the amount of the said judgment by levying the real property of said accused and to sell the same or so much thereof in the manner provided for by law for the satisfaction of the said judgment. The writ made no mention of implementing the writ on the properties of Nueva Swine, rather, it provided to levy the goods and chattels of the accused Ng. Further, the Order dated January 22, 2007 issued by Judge Demonteverde unequivocally directed the City Sheriff and/or the Provincial Sheriff of Iloilo to serve the writ of execution on the civil aspect of the criminal cases to accused Mary Ann Ng and not to Nueva Swine.

It is a basic principle of law that money judgments are enforceable only against property unquestionably belonging to the judgment debtor.

In the case at bench, the officer of Nueva Swine during the implementation of the writ of execution informed respondents that the personal properties being levied upon does not belong to accused Ng, the judgment obligor, but to Nueva Swine, a juridical person separate and distinct from the judgment obligor. Such information should have warned respondents of the possibility of levying properties not belonging to accused Ng. Respondents have no authority to determine which property to levy based on documents presented to them and to conclude that the checks issued by accused Ng was for and in behalf of Nueva Swine. Their only directive is to implement the writ on the properties of accused Ng. They have no capacity to vary the judgment and deviate therefrom based on their own interpretation thereof.

Acting on the reports of the investigating executive judge and the OCA, the Court, by way of affirming the same, held that sheriffs are ministerial officers. They are agents of the law and not agents of the parties, neither of the creditor nor of the purchaser at a sale conducted by either of them. As such, sheriffs and deputy sheriffs must discharge their duties with due care and utmost diligence, because in serving the court’s writs and processes and in implementing the orders of the court, they cannot afford to err without affecting the efficiency of the process of the administration of justice. Sheriffs play an important role in the administration of justice and as agents of the law, high standards are expected of them.

The procedure for the implementation of a writ of execution of judgment is provided for under Section 9, Rule 39 of the Rules of Court, which states:

SEC. 9. Execution of judgments for money, how enforced. -

(a) Immediate payment on demand. – The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. (Emphasis Supplied.)

x x x x

In the present case, it was clearly shown that respondents failed to follow the above-cited procedure. Instead of demanding payment from accused Ng, the judgment obligor and therein defendant, as to the civil aspect in Criminal Case Nos. 03-6-5516 to 03-6-5542, 03-9-6218 to 03-9-6270, 03-10-6498 to 03-10-6549, respondents served the writ of execution on Dr. Donglal, an officer of Nueva Swine. Respondents claimed that they tried to contact accused Ng through Dr. Donglal although the latter did not mention such incident in his affidavit. However, respondents failed to establish that they exerted all means to look for accused Ng, who should have been given the option as to which of her personal properties could be levied. They merely proceeded to demand payment from Dr. Donglal who was not even a party to the said criminal case. Worse, they levied the property of Nueva Swine.

The Supreme Court stressed that in the execution of a money judgment, the sheriff must first make a demand on the obligor for payment of the full amount stated in the writ of execution. Property belonging to third persons cannot be levied upon. Accused Ng was the judgment obligor as stated in said writ, and not Nueva Swine, although she was the President and CEO of the said company. She has a personality which is separate and distinct from that of the corporation and, likewise, her properties cannot be considered as properties of the corporation. Even assuming that accused Ng owned a majority of the stocks of Nueva Swine, respondents could have, at most, proceeded against her shares of stock, but not levy the hogs of Nueva Swine. Although the legal fiction that a corporation has a personality separate and distinct from that of stockholders and members may be disregarded, this exception should not be applied if it is used as a means to perpetrate fraud or an illegal act; or as a vehicle to evade an existing obligation, to circumvent statutes, or to confuse legitimate issues. Therefore, when respondents levied the properties of the corporation, a third party to the case and not named in the writ, they exceeded their authority to strictly comply with the writ of execution.

The Court added that therespondents committed grave abuse of authority when they forcibly took the swine despite the explanation of Dr. Donglal that the properties being levied did not belong to accused Ng. They continued to load the hogs into their cargo trucks even after having been informed of the TRO. Respondents’ taking was aggravated by the fact that they slaughtered one of the hogs, a fact that they expressly admitted and even stated in the Sheriffs’ Return of Service dated June 28, 2007. The slaughtered pig was then cooked into lechon (roasted pig), and respondents feasted on it while still in the premises of Nueva Swine. While respondents maintain that it was Dr. Donglal who proposed that the pig be slaughtered as food for them, such excuse is unacceptable because sheriffs cannot appropriate levied property for themselves, even though the same be purportedly upon the instance of Dr. Donglal. Sheriffs are enjoined to keep levied properties securely in their custody, and file a return of the writ of execution.

According top the Court such conduct of respondents evidently fell short of the standard established by the pertinent provisions of the Code of Conduct for Court Personnel, specifically Section 2, which states that court personnel shall carry out their responsibilities as public servants in as courteous a manner as possible; and Section 6, which states that court personnel shall expeditiously enforce rules and implement orders of the court within the limits of their authority.

Respondents became administratively liable for grave abuse of authority when they forcibly levied and took away properties belonging to a third person and, thereafter, appropriated the levied property for themselves. Respondents’ grave abuse of authority amounted to gross misconduct, which under the Uniform Rules on Administrative Cases in the Civil Service, Rule IV, Section 52 A (3) thereof, is a grave offense punishable by dismissal even for the first offense.

The news item on the above matter appears below.

SC dismisses 5 Iloilo sheriffs for seizure of pigs

By Nestor P. Burgos Jr.

Philippine Daily Inquirer
Inquirer Visayas
First Posted 20:25:00 11/22/2009

ILOILO CITY, Philippines—The Supreme Court stood pat on its decision dismissing from service five court sheriffs in this city for illegally confiscating pigs and feasting on one of them in 2007.

In an en banc ruling promulgated on Oct. 13 and released on Nov. 4, the high court dismissed with finality the motions for reconsideration filed in September by the sheriffs.
“The court resolved to deny with finality the …motions … there being no substantial matter raised to warrant the reversal of the questioned decision,” it said.

The latest ruling upheld an Aug. 13 order dismissing Rolando Somosa, Edgar Cordero and Rodolfo Haro, sheriffs of the Municipal Trial Court in Cities (MTCC); and Gani Lacatan and Camilo Divinagracia Jr., sheriffs of the Iloilo Regional Trial Court (RTC).
The court also ordered the forfeiture of all benefits and privileges of the sheriffs, except accrued leave credits.

The high court found them guilty of grave misconduct after they illegally confiscated 675 heads of swine from Nueva Swine Valley Inc. and admitted roasting and eating one of the pigs when they served a writ of execution related to a civil case two years ago.

The executive judge of the Iloilo RTC and the Office of the Court Administrator (OCA) had earlier found the sheriffs to have violated procedures under the 1997 Rules of Civil Procedure governing the implementation of execution of judgments for money when they levied the property of Nueva Swine Valley, which was not the subject of the writ of execution.

Mary Ann Ng, president and chief executive officer of the swine firm, was the subject of a criminal and civil complaint of Lita Gamboa, representing Keylargo Commodities Trading. Gamboa accused Ng of violating Batas Pambansa Bilang 22 (Bouncing Checks Law) for not paying her liabilities to complainant.

Investigations showed that on May 31, 2007, the sheriffs served the order of execution issued by the Municipal Trial Circuit Court Branch 2 in Bacolod City.

The order required Ng to pay her debts and the sheriffs to levy her properties if she failed to do so.

The high court had also pointed out that the properties of Nueva Swine were not the subject of the levy order because Ng has a separate and distinct personality from that of the corporation even if she was the corporation’s president and chief executive officer.


Friday, November 20, 2009

Gay rights

The homosexuals and lesbians constitute a marginalized sector in Philippine society (in fact, in all societies worldwide).

As such they deserve full legal and political representation and protection via the beneficial provisions of the current Philippine party-list law and related election laws.

The Bill of Rights and the Statement of State Policies of the 1987 Philippine Constitution expressly protect and defend the rights of all sectors of society regardless of sexual orientation, gender, race, color, ethnicity, religion, and creed.

This is a universal precept enshrined in all international covenants on human rights since the very foundation of the United Nations in the late 1940s.

Unfortunately, the Commission on Elections (whose ignorant and biased commissioners and lawyers still live in the ancient age of Queen Victoria) sees the gay sector as a menace to the morals and spirituality of society.

This hyprocritical holier-than-thou attitude of the commission endangers the spirit and substance of democracy and republicanism in the Philippines.

A recent item in the column of former UP law dean Raul Pangalangan condemns this wrong view.

It appeared in today’s issue of the Philippine Daily Inquirer, which I wish to share with my readers.

Passion For Reason

Gay-bashing by Comelec bullies

By Raul Pangalangan

Philippine Daily Inquirer
First Posted 21:29:00 11/19/2009

THE ELECTION commissioners belong to homo sapiens, yet they are so homogeneous in their homophobia that they might think I have actually insulted them by using any word that can pass for a homonym. By the Comelec’s backward logic, anything homo can’t be good.

What amazes me is the gall of Nicodemo Ferrer, Lucenito Tagle and Elias Yusuph in citing the Bible and the Koran to curtail a right of political participation guaranteed by the Constitution. What was going on inside their heads? Were they brown-nosing the fundamentalist clergy of both religions? Were they pandering to the hardy machos in the gallery? Or could they actually have been serious in rejecting the gay and lesbian rights party-list group Ang Ladlad?

The Constitution says it loud and clear. “The separation of Church and State shall be inviolable.” “No religious test shall be required for the exercise of civil or political rights.” Yet the Comelec cites the Bible where it condemns “vile affections” which, this time citing the Koran, are punished with a “shower of brimstone.” These constitute precisely the “religious test” barred by the Constitution.

What is appalling is these were completely superfluous to the Comelec’s logic, which, in the end, actually relied on secular morality. The Comelec said that Ang Ladlad “serve[d] no other purpose but to satisfy the market for … lust or pornography … offend[s a] race or religion” and are “offensive to morals.” They took one look at Ang Ladlad’s openness to “intimate and sexual relations [among] individuals of a different gender, of the same gender, or more than one gender” and concluded that Ang Ladlad “advocate[s] immoral doctrines.” But where does it say that the Comelec commissioners can use the law to carry out their private prejudices?

The Comelec concluded that Ang Ladlad lied when it said that none of its supposedly gay nominees “have [not] violated … laws, rules or regulations relating to elections.” I wonder: Since when has the “Kamasutra” been an election-related manual? Philippine elections are so lewd that the “Kamasutra” can only be so profaned. But seriously now. What laws did Ang Ladlad breach? What was the charge? Who was the complainant? What court rendered judgment? Can the Comelec so blithely arrogate unto itself the role of accuser, judge and executioner?

When the Comelec hears an application for party-list accreditation, it is limited to specific legal tests and nothing more. Is the group genuinely not part of the government? Is the group a mere front of religious groups otherwise excluded from forming political parties? Does a Forbes Park matron belong to the purportedly marginalized minority of homeowners’ associations? Does the group represent a bona fide “marginalized and under-represented group”? Indeed, for the 2007 elections, the Comelec disqualified Ang Ladlad because it couldn’t show that it had enough muscle as a nationwide party. Now that Ang Ladlad has apparently shown some political bicep, why does the Comelec suddenly want to poke into its other parts?

Granting that the Comelec truly has a “roving commission” as our moral guardian, why did they discover it only now that the gay and lesbians stand before them? For instance, shouldn’t they have first disqualified Gloria Macapagal-Arroyo from public office because she immorally spoke to a Comelec commissioner during the 2004 elections? Shouldn’t they disqualify that Comelec commissioner who immorally answered when Ms Arroyo said, “Hello, Garci”? Shouldn’t they disqualify retired Maj. Gen. (now party-list congressman) Jovito Palparan? After all the Supreme Court no less, speaking through the Chief Justice in a writ of amparo decision, documented Palparan’s interrogating two torture victims who were almost “disappeared”? Did the Comelec even bother to investigate the Court’s finding that its Mega-Pacific computerization deal had violated its own bidding rules?

Why the selective application of rules? One set of rules but two ways to apply them: liberal in favor of the politically well connected, strict against the political outsiders?
The Constitution frowns upon unequal treatment, especially when it burdens constitutionally protected rights of political participation, of speech, of assembly, or of privacy.

The Comelec cannot push Ang Ladlad around. But gays and lesbians have lived a whole lifetime of standing up to bullies, of fighting off the daily insults, the deprecating attitudes, the nasty jokes. They are veterans of a different kind of war, and for them, the commissioners are, metaphorically, small nuts to chew.

The US Supreme Court called for exacting judicial scrutiny when “prejudice against discrete and insular minorities [curtail] those political processes ordinarily to be relied upon to protect minorities.” The Comelec gay exclusion fits that description to a T.
The US high court reasoned: “Only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence [and that we] define themselves in a significant way through [our] intimate sexual relationships … [M]uch of the richness of a relationship will come from the freedom of an individual to choose the form and nature of these intensely personal bonds.” Ferrer has threatened to out the closet gays in Congress, but he merely succeeded in outing himself as a closet fascist.

It is no surprise when weak political institutions like the Comelec ally themselves with powerful religious orthodoxies. That is the way of bullies, typical of the authoritarian impulse to kowtow before the powerful while riding roughshod over the weak. The “kiss-ass, kick-ass” syndrome is especially ridiculous here since the only behind the Comelec must cover is its own.

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Wednesday, November 18, 2009

Judicial security

Nothing has happened to my letter last year addressed to the Supreme Court to create a Judicial Armed Security Command (JASC) to protect the administration of justice in the Philippines. The Court must be independent in protecting the national justice system. It is not good to rely solely on the Armed Forces of the Philippines and the Philippine National Police, whose leaders and personnel, more often than not, are involved in the multifarious cases pending before the Court and its lower echelon. Last year the Philippine Daily Inquirer published my letter on the matter, which I wish to reproduce below to refresh our memories. I am not aware of any movement along this line in any committee or office of the Court but I recall that last year the Office of the Court Administrator wrote me to express its general interest in the idea. It stopped there.

Judiciary should have own security
Philippine Daily Inquirer
First Posted 00:35:00 02/19/2008

The Bar is deeply bothered by repeated murders inside the halls of justice, especially in Metro Manila. Last year, a fellow trial lawyer was murdered inside Branch 199 of the Regional Trial Court of Las Piñas City. Last month a former Mindanao mayor was murdered just outside the Regional Trial Court of Manila. Many trial judges nationwide have been murdered over the past five years in the course of their work.

Such killings, like a cancer, destroy the rule of law and the administration of justice in our country. They aggravate the poor image of our legal system, which is already drawing painful criticism from local and foreign media, rightly or wrongly, for alleged weaknesses, ineptness, lack of independence, politicization, and corruption.

The security seminars and firearms/target shooting training sessions conducted by the Supreme Court for trial judges and selected court personnel are not enough to solve the problem. What is required is an institutional and systems-oriented solution.

In this regard, we respectfully recommend the formation by the Supreme Court of a Judicial Armed Security Command (JASC) under its full control and supervision (not under the Philippine National Police or the Armed Forces of the Philippines).
With due respect, we say it is useless and inadvisable for the Supreme Court to rely on the local police and military units to secure the halls of justice in the country while preserving the independence of the courts.

Like the Bangko Sentral ng Pilipinas, the Supreme Court should have its own national judicial armed security command to protect the justice system, which is its primary constitutional responsibility.

The funds for the proposed command should be sourced from the annual budgets of the national government, starting with the 2009 Supreme Court budget (not from increased docket and filing fees, which now heavily penalize the poor and middle-income litigants).

It is time for the Supreme Court to give flesh to the constitutional doctrine of judicial (and financial) independence.

The current Judicial Development Fund (JDF) collections are sorely insufficient for the purpose. It cannot even pay for the meager employee benefits of the judicial workers, whose weekly protests (Black Fridays) are going on.
We suggest that the Supreme Court create a technical planning committee to study the idea of forming an internal JASC for the sake of the rule of law and the administration of justice.

MANUEL J. LASERNA JR., board consultant, Las Piñas City Bar Association, Unit 15, Star Arcade, C.V. Starr Avenue, Philamlife Village, Las Piñas City


R.A. No. 9745, anti-torture act of 2009

In accordance with my previous promise, I am digesting below the salient parts of the newly approved R.A. No. 9745¸ otherwise known as the ANTI-TORTURE ACT OF 2009 of the Philippines.

(Note: As in all other Philippine human rights-related laws, we still have to wait and see how serious, sincere, and honest the military and police sectors of the Philippine society would enforce and respect the letter and spirit of the new law. As we all know, the military and police officers and personnel are the number one human rights violators in the Philippines, abetted and funded by national and local war, drug, and crime lords and by regional and local political dynasties -- as if we still live in the deplorable and sick middle ages of the feudal 9th-century Europe).

Let me digest the new law.

Sec. 2 of the new law declares the policy of the State:

(a) to value the dignity of every human person and guarantee full respect for human rights;

(b) to ensure that the rights of all persons, including suspects, detainees and prisoners are respected at all times; that no person placed under investigation or held in custody by any person in authority or agent of a person in authority shall be subjected to torture, physical harm, force, violence, threat or intimidation or any act that impairs his/her free will; and that secret detention places, solitary, incommunicado or other similar forms of detention, where torture may be carried out with impunity, are hereby prohibited; and

(c) to fully adhere to the principles and standards on the absolute condemnation and prohibition of torture set by the 1987 Philippine Constitution and various international instruments, such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), to which the Philippines is a State party.

Under Sec. 3, “torture” refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

“Other cruel, inhuman and degrading treatment or punishment” refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter.

Sec. 4 provides that torture (physical and mental) shall include, but is not be limited to, the following:

(a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:

1. systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;

2. food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;

3. electric shock;

4. cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);

5. the submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation;

6. being tied or forced to assume fixed and stressful bodily position;

7. rape and sexual abuse, including the insertion of foreign bodies into the sex organ or rectum, or electrical torture of the genitals;

8. mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;

9. dental torture or the forced extraction of the teeth;

10. pulling out of fingernails;

11. harmful exposure to the elements such as sunlight and extreme cold;

12. the use of plastic bag and other materials placed over the head to the point of asphyxiation;

13. the use of psychoactive drugs to change the perception, memory, alertness or will of a person, such as: (i) the administration of drugs to induce confession and/or reduce mental competency; or (ii) the use of drugs to induce extreme pain or certain symptoms of a disease; and

14. other analogous acts of physical torture; and

(b) Mental/Psychological torture refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person’s dignity and morale, such as:

1. blindfolding;

2. threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts;

3. confinement in solitary cells or secret detention places;

4. prolonged interrogation;

5. preparing a prisoner for a “show trial”, public display or publichumiliation of a detainee or prisoner;

6. causing unscheduled transfer of a person deprived of liberty from one place
to another, creating the belief that he/she shall be summarily executed;

7. maltreating a member/s of a person’s family;

8. causing the torture sessions to be witnessed by the person’s family, relatives or any third party;

9. denial of sleep/rest;

10. shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim’s head or putting marks on his/her body against his/her will;

11. deliberately prohibiting the victim to communicate with any member of his/her family; and

12. other analogous acts of mental/psychological torture.

Per Sec. 5, other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim.

Sec. 6 expressly declares that torture as a criminal act. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. An “Order of Battle” or any order from a superior officer or public authority shall not be invoked as a justification for the commission of torture.

Sec. 7 commands that any confession, admission or statement obtained as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that said confession, admission or statement was made.
Sec. 8 provides that any individual who alleges that he/she has been subjected to torture and other cruel, inhuman and degrading treatment or punishment shall have the right to complain to and to have his/her case promptly and impartially examined by competent authorities. The State through its appropriate agencies shall ensure the safety of the complainant or victim and all other persons involved in the investigation and prosecution of cases of torture and other cruel, inhuman and degrading treatment or punishment such as the legal counsel, witnesses, relatives of the victims, representatives of human rights organizations and media. They shall be entitled to the Witness Protection, Security and Benefit Program, as provided under Republic Act No. 6981, and other laws, rules and regulations. They shall be protected from ill-treatment and any act of intimidation or reprisal as a result of the complaint or filing of charges. Any person committing such acts shall be punished under existing laws.

Under Sec. 9 a writ of habeas corpus or writ of amparo or writ of habeas data proceeding, if any, filed on behalf of the victim of torture or other cruel, degrading and inhuman treatment or punishment shall be disposed of expeditiously and any order of release by virtue thereof, or other appropriate order of a court relative thereto, shall be executed or complied with immediately.

Sec. 10 commandes the the Commission on Human Rights of the Philippines (CHRP) and the Public Attorney’s Office (PAO) to render legal assistance in the investigation and monitoring and/or filing of the complaint for a person who suffers torture and other cruel, inhuman and degrading treatment or punishment, or for any interested party thereto.

The victim or interested party may also seek legal assistance from the Barangay Human Rights Action Center nearest him/her as well as from human rights nongovernment organizations (NGOs).

Under Sec. 11, before and after interrogation, every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand a physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall be provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavour to provide the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation shall have the right to immediate access to quality medical treatment.

The physical examination and/or psychological evaluation of the victim shall be contained in a medical report which shall include in detail his/her medical history and findings, and which shall be attached to the custodial investigation report. Following applicable protocol agreed upon by agencies, medical reports shall, among others, include the following:

(a) The name, age and address of the patient;
(b) The name and address of the nearest of kin of the patient;
(c) The name and address of the person who brought the patient to a hospital clinic or to a health care practitioner for physical and psychological examination;
(d) The nature and probable cause of the patient’s injuries and trauma;
(e) The approximate time and date when the injury and/or trauma was sustained;
(f) The place where the injury and/or trauma was sustained;
(g) The time, date and nature of treatment necessary; and
(h) The diagnosis, prognosis and/or disposition of the patient.

Any person who does not wish to avail of the rights under this provision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel.

Sec. 12 expressly provides that any person who actually participated or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture by previous or simultaneous acts shall be liable as principal. Any superior military, police or law enforcement officer or senior government official who issued an order to a lower ranking personnel to subject a victim to torture or other cruel, inhuman and degrading treatment or punishment for whatever purpose shall be held equally liable as principal. Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner:

(a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or

(b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or

(c) By harboring, concealing or assisting in the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official’s public functions.

Command responsibility is enshrined in the new law. Under Sec. 13,the immediate superior of the unit concerned of the Armed Forces of the Philippines or the equivalent senior official of the offender shall be held accountable for “neglect of duty” under the doctrine of “command responsibility” if he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence, shall, without prejudice to criminal liability, be held administratively liable under the principle of command responsibility.

Sec. 14 provides for the penalty of reclusion perpetua upon the perpetrators of the following acts:

1. Torture resulting in the death of any person;
2. Torture resulting in mutilation;
3. Torture with rape;
4. Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and
5. Torture committed against children.

The penalty of reclusion temporal shall be imposed on those who commit any act of mental/psychological torture resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame.

The penalty of prision mayor in its medium and maximum periods shall be imposed if, in consequence of torture, the victim shall have lost the power of speech or the power to hear or to smell; or shall have lost an eye, a hand, a foot, an arm or a leg; or shall have lost the use of any such member; or shall have become permanently incapacitated for labor.

The penalty of prision mayor in its minimum and medium periods shall be imposed if, in consequence of torture, the victim shall have become deformed or shall have lost any part of his/her body other than those aforecited, or shall have lost the use thereof, or shall have been ill or incapacitated for labor for a period of more than ninety (90) days.

The penalty of prision correccional in its maximum period to prision mayor in its minimum period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for more than thirty (30) days but not more than ninety (90) days.

The penalty of prision correccional in its maximum period shall be imposed on the immediate officer who, either deliberately or by inexcusable negligence, failed to do an act even if he/she has knowledge or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman or degrading treatment or punishment shall be committed, is being committed or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment.

The penalty of prision correccional in its minimum and medium period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for thirty (30) days or less.

The penalty of arresto mayor shall be imposed for acts constituting cruel, inhuman or degrading treatment or punishment.

In order not to depreciate the crime of torture, persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions. (Sec. 15).

Sec. 16 provides for the international law aspect of the crime. Notwithstanding the provisions of the foregoing section, any investigation, trial and decision in any Philippine court or other agency for any violation of this Act shall be without prejudice to any investigation, trial, decision or any other legal or administrative process before the appropriate international court or agency under applicable international human rights and humanitarian laws.

Sec. 17 provides that no person shall be expelled, returned or extradited to another State where there are substantial grounds for believing that such person would be in danger of being subjected to torture and other cruel, inhuman and degrading treatment or punishment.

For the purpose of determining whether there are such grounds, the Secretary of Foreign Affairs and the Secretary of Justice, in coordination with the Chairperson of the CHRP, shall take into account all relevant considerations including, where applicable, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights.

Sec. 18 contains the compensation clause of the law. Any person who has suffered torture or other cruel, inhuman and degrading treatment or punishment shall have the right to claim for compensation as provided for under Republic Act No. 7309:
Provided, That in no case shall the compensation be any lower; than Ten thousand pesos (P10,000.00). The victim shall also have the right to claim for compensation from such other financial relief programs that may be available to him/her.

Sec. 19 provides that within one (1) year from the effectivity of this Act, the Department of Social Welfare and Development (DSWD), together with the Department of Justice (DOJ) and the Department of Health (DOH) and such other concerned government agencies, shall formulate a comprehensive rehabilitation program for victims of torture and their families. Toward the attainment of restorative justice, a parallel rehabilitation program for persons who have committed torture and other cruel, inhuman and degrading treatment or punishment shall likewise be formulated by the same agencies.

Sec. 20 assigns the CHRP as the head of the oversight committee to monitor the enforcement of the new law. An oversight committee is created to periodically oversee the implementation of this Act. The committee shall be headed by a commissioner of the CHRP, with the following as members: an undersecretary of the DOJ, the chairperson of the Senate Committee on Justice and Human Rights, the respective chairpersons of the House of Representatives’ Committees on Justice and Human Rights and the respective chairpersons of two (2) nationally organized human rights NGOs, one of whose functions is the monitoring of cases of torture and other
cruel, inhuman and degrading treatment or punishment.

Sec. 22 provides that the provisions of the Revised Penal Code shall be suppletory to the new law.

Sec. 24 commands the DOJ and the CHRP, with the active participation of human rights NGOs, to jointly promulgate the rules and regulations for the effective implementation of this Act. They shall also ensure the full dissemination of such rules and regulations to all officers and members of various law enforcement agencies.

Police power vs. eminent domain

In the recent case of THE OFFICE OF THE SOLICITOR GENERAL vs. AYALA LAND INCORPORATED, ROBINSON’S LAND CORPORATION, SHANGRI-LA PLAZA CORPORATION and SM PRIME HOLDINGS, INC., G.R. No. 177056, September 18, 2009, G.R. No. 177056, September 18, 2009, which involved the issue of whether or not private shopping malls could be compelled by law to offer free parking spaces to their customers, the Philippine Supreme Court, inter alia, rejected the assertion of the government that under the doctrine of police power private shopping malls could be so compelled by the state to provide free parking spaces to their customers.

The case distinguishes the natures and legal effects of police power and eminent domain.

By way of review, it will be noted that in Senate Committee Report No. 225 on 2 May 2000, the Senate concluded that the collection of parking fees by shopping malls was contrary to the National Building Code.

While it is true that the Code merely requires malls to provide parking spaces, without specifying whether it is free or not, the Senate Committees believed that the reasonable and logical interpretation of the Code was that the parking spaces were for free.

Article II of R.A. No. 9734 (Consumer Act of the Philippines) provides that “it is the policy of the State to protect the interest of the consumers, promote the general welfare and establish standards of conduct for business and industry.” Obviously, a contrary interpretation (i.e., justifying the collection of parking fees) would be going against the declared policy of R.A. 7394, the Report said.

Section 201 of the National Building Code gives the responsibility for the administration and enforcement of the provisions of the Code, including the imposition of penalties for administrative violations thereof to the Secretary of Public Works, the Report added.

The Senate Committee Report recommended that the Office of the Solicitor General institute the necessary action to enjoin the collection of parking fees as well as to enforce the penal sanction provisions of the National Building Code and that the Office of the Solicitor General should likewise study how refund could be exacted from mall owners who continue to collect parking fees.

The Report recommended that the Department of Trade and Industry pursuant to the provisions of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines should enforce the provisions of the Code relative to parking, that the DTI should formulate the necessary implementing rules and regulations on parking in shopping malls, with prior consultations with the local government units where these are located, and that the DTI, in coordination with the Department of Public Works and Highways (DPWH), should be empowered to regulate and supervise the construction and maintenance of parking establishments. Finally, the Report recommended that Congress should amend and update the National Building Code to expressly prohibit shopping malls from collecting parking fees by at the same time, prohibit them from invoking the waiver of liability.

Suits were filed by the shopping malls under Rule 63 (declaratory relief) seeking to judicially declaring Rule XIX of the Implementing Rules and Regulations of the National Building Code as ultra vires, hence, unconstitutional and void; declaring the malls’ clear legal right to lease parking spaces; declaring the National Building Code of the Philippines Implementing Rules and Regulations as ineffective, not having been published once a week for three (3) consecutive weeks in a newspaper of general circulation, as prescribed by Section 211 of Presidential Decree No. 1096.

A similar suit was filed by the Office of the Solicitor General (OSG) praying that aAfter summary hearing, a temporary restraining order and a writ of preliminary injunction be issued restraining the malls from collecting parking fees from their customers; and after hearing, judgment be rendered declaring that the practice of respondents in charging parking fees is violative of the National Building Code and its Implementing Rules and Regulations and is therefore invalid, and making permanent any injunctive writ issued in the case.

The trial court and the appellate court sided with the private malls.

Let me digest the doctrinal pronouncements of the Supreme Court in the said case.

1. According to Section 803 of the National Building Code:

SECTION 803. Percentage of Site Occupancy

(a) Maximum site occupancy shall be governed by the use, type of construction, and height of the building and the use, area, nature, and location of the site; and subject to the provisions of the local zoning requirements and in accordance with the rules and regulations promulgated by the Secretary.

2. In connection therewith, Rule XIX of the old IRR, provides:


Pursuant to Section 803 of the National Building Code (PD 1096) providing for maximum site occupancy, the following provisions on parking and loading space requirements shall be observed:

1. The parking space ratings listed below are minimum off-street requirements for specific uses/occupancies for buildings/structures:

1.1 The size of an average automobile parking slot shall be computed as 2.4 meters by 5.00 meters for perpendicular or diagonal parking, 2.00 meters by 6.00 meters for parallel parking. A truck or bus parking/loading slot shall be computed at a minimum of 3.60 meters by 12.00 meters. The parking slot shall be drawn to scale and the total number of which shall be indicated on the plans and specified whether or not parking accommodations, are attendant-managed. (See Section 2 for computation of parking requirements).

x x x x

1.7 Neighborhood shopping center – 1 slot/100 sq. m. of shopping floor area

3. The explicit directive of the afore-quoted statutory and regulatory provisions, garnered from a plain reading thereof, is that respondents, as operators/lessors of neighborhood shopping centers, should provide parking and loading spaces, in accordance with the minimum ratio of one slot per 100 square meters of shopping floor area. There is nothing therein pertaining to the collection (or non-collection) of parking fees by respondents. In fact, the term “parking fees” cannot even be found at all in the entire National Building Code and its IRR.

4. Statutory construction has it that if a statute is clear and unequivocal, it must be given its literal meaning and applied without any attempt at interpretation. Since Section 803 of the National Building Code and Rule XIX of its IRR do not mention parking fees, then simply, said provisions do not regulate the collection of the same. The RTC and the Court of Appeals correctly applied Article 1158 of the New Civil Code, which states:

Art. 1158. Obligations derived from law are not presumed. Only those expressly determined in this Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen, by the provisions of this Book. (Emphasis ours.)

Hence, in order to bring the matter of parking fees within the ambit of the National Building Code and its IRR, the OSG had to resort to specious and feeble argumentation, in which the Court cannot concur.

5. Consequently, the OSG cannot claim that in addition to fixing the minimum requirements for parking spaces for buildings, Rule XIX of the IRR also mandates that such parking spaces be provided by building owners free of charge. If Rule XIX is not covered by the enabling law, then it cannot be added to or included in the implementing rules. The rule-making power of administrative agencies must be confined to details for regulating the mode or proceedings to carry into effect the law as it has been enacted, and it cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Administrative regulations must always be in harmony with the provisions of the law because any resulting discrepancy between the two will always be resolved in favor of the basic law.

6. It is not sufficient for the OSG to claim that “the power to regulate and control the use, occupancy, and maintenance of buildings and structures carries with it the power to impose fees and, conversely, to control, partially or, as in this case, absolutely, the imposition of such fees.” Firstly, the fees within the power of regulatory agencies to impose are regulatory fees. It has been settled law in this jurisdiction that this broad and all-compassing governmental competence to restrict rights of liberty and property carries with it the undeniable power to collect a regulatory fee. It looks to the enactment of specific measures that govern the relations not only as between individuals but also as between private parties and the political society. True, if the regulatory agencies have the power to impose regulatory fees, then conversely, they also have the power to remove the same. Even so, it is worthy to note that the present case does not involve the imposition by the DPWH Secretary and local building officials of regulatory fees upon respondents; but the collection by respondents of parking fees from persons who use the mall parking facilities. Secondly, assuming arguendo that the DPWH Secretary and local building officials do have regulatory powers over the collection of parking fees for the use of privately owned parking facilities, they cannot allow or prohibit such collection arbitrarily or whimsically. Whether allowing or prohibiting the collection of such parking fees, the action of the DPWH Secretary and local building officials must pass the test of classic reasonableness and propriety of the measures or means in the promotion of the ends sought to be accomplished.

7. Keeping in mind the aforementioned test of reasonableness and propriety of measures or means, the Court notes that Section 803 of the National Building Code falls under Chapter 8 on Light and Ventilation. Evidently, the Code deems it necessary to regulate site occupancy to ensure that there is proper lighting and ventilation in every building. Pursuant thereto, Rule XIX of the IRR requires that a building, depending on its specific use and/or floor area, should provide a minimum number of parking spaces. The Court, however, fails to see the connection between regulating site occupancy to ensure proper light and ventilation in every building vis-à-vis regulating the collection by building owners of fees for the use of their parking spaces. Contrary to the averment of the OSG, the former does not necessarily include or imply the latter. It totally escapes this Court how lighting and ventilation conditions at the malls could be affected by the fact that parking facilities thereat are free or paid for.

8. X x x. The National Building Code regulates buildings, by setting the minimum specifications and requirements for the same. It does not concern itself with traffic congestion in areas surrounding the building. It is already a stretch to say that the National Building Code and its IRR also intend to solve the problem of traffic congestion around the buildings so as to ensure that the said buildings shall have adequate lighting and ventilation. Moreover, the Court cannot simply assume, as the OSG has apparently done, that the traffic congestion in areas around the malls is due to the fact that respondents charge for their parking facilities, thus, forcing vehicle owners to just park in the streets. The Court notes that despite the fees charged by respondents, vehicle owners still use the mall parking facilities, which are even fully occupied on some days. Vehicle owners may be parking in the streets only because there are not enough parking spaces in the malls, and not because they are deterred by the parking fees charged by respondents. Free parking spaces at the malls may even have the opposite effect from what the OSG envisioned: more people may be encouraged by the free parking to bring their own vehicles, instead of taking public transport, to the malls; as a result, the parking facilities would become full sooner, leaving more vehicles without parking spaces in the malls and parked in the streets instead, causing even more traffic congestion.

9. Without using the term outright, the OSG is actually invoking police power to justify the regulation by the State, through the DPWH Secretary and local building officials, of privately owned parking facilities, including the collection by the owners/operators of such facilities of parking fees from the public for the use thereof. The Court finds, however, that in totally prohibiting respondents from collecting parking fees from the public for the use of the mall parking facilities, the State would be acting beyond the bounds of police power.

10. Police power is the power of promoting the public welfare by restraining and regulating the use of liberty and property. It is usually exerted in order to merely regulate the use and enjoyment of the property of the owner. The power to regulate, however, does not include the power to prohibit. A fortiori, the power to regulate does not include the power to confiscate. Police power does not involve the taking or confiscation of property, with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting peace and order and of promoting the general welfare; for instance, the confiscation of an illegally possessed article, such as opium and firearms.

11. When there is a taking or confiscation of private property for public use, the State is no longer exercising police power, but another of its inherent powers, namely, eminent domain. Eminent domain enables the State to forcibly acquire private lands intended for public use upon payment of just compensation to the owner.

12. Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of only to impose a burden upon the owner of condemned property, without loss of title and possession. It is a settled rule that neither acquisition of title nor total destruction of value is essential to taking. It is usually in cases where title remains with the private owner that inquiry should be made to determine whether the impairment of a property is merely regulated or amounts to a compensable taking. A regulation that deprives any person of the profitable use of his property constitutes a taking and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Similarly, a police regulation that unreasonably restricts the right to use business property for business purposes amounts to a taking of private property, and the owner may recover therefor.

13. Although in the present case, title to and/or possession of the parking facilities remain/s with respondents, the prohibition against their collection of parking fees from the public, for the use of said facilities, is already tantamount to a taking or confiscation of their properties. The State is not only requiring that respondents devote a portion of the latter’s properties for use as parking spaces, but is also mandating that they give the public access to said parking spaces for free. Such is already an excessive intrusion into the property rights of respondents. Not only are they being deprived of the right to use a portion of their properties as they wish, they are further prohibited from profiting from its use or even just recovering therefrom the expenses for the maintenance and operation of the required parking facilities.

14. In conclusion, the total prohibition against the collection by respondents of parking fees from persons who use the mall parking facilities has no basis in the National Building Code or its IRR. The State also cannot impose the same prohibition by generally invoking police power, since said prohibition amounts to a taking of respondents’ property without payment of just compensation.