In the recent case of ANG LADLAD LGBT PARTY VS. COMELEC, EN BANC, GR No. 190582, April 8, 2010, the Philippine Supreme Court made the following constitutional law pronouncements, to which I totally subscribe:
1. One unavoidable consequence of everyone having the freedom to choose is that others may make different choices – choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion.
2. Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.
3. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, “the enumeration of marginalized and under-represented sectors is not exclusive”. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941.
4. Our Constitution provides in Article III, Section 5 that “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our non-establishment clause calls for is “government neutrality in religious matters.” Clearly, “governmental reliance on religious justification is inconsistent with this policy of neutrality.” We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
5. Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects.
6. We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these “generally accepted public morals” have not been convincingly transplanted into the realm of law.
7. The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that “there should have been a finding by the COMELEC that the group’s members have committed or are committing immoral acts.”
8. Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.
9. We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as “any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality,” the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability.
10. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause.
11. Despite the absolutism of Article III, Section 1 of our Constitution, which provides “nor shall any person be denied equal protection of the laws,” courts have never interpreted the provision as an absolute prohibition on classification. “Equality,” said Aristotle, “consists in the same treatment of similar persons.” The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances.
12. Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long as it bears a rational relationship to some legitimate government end. In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, we declared that “[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the ‘rational basis’ test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.”
13. The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here – that is, moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group.
14. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.
15. It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSG’s position that homosexuals are a class in themselves for the purposes of the equal protection clause. We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made “an unwarranted and impermissible classification not justified by the circumstances of the case.”
16. Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal democratic means. It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon.
17. Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning one’s homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.
18. Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
19. With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population. A political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned. Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.
20. We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community.
21. The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to “sex” in Article 26 should be construed to include “sexual orientation.” Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.
22. The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
23. Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
24. As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.
x x x x
15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office.
Friday, April 23, 2010
Legal realism theory
Passion For Reason
The other meaning of ‘political court’
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 21:16:00 04/22/2010
THE INQUIRER’S EDITORIAL on Thursday struck at the heart of the raging debate on whether President Macapagal-Arroyo is entitled to appoint the new chief justice: the “uncomfortable truth” about the “public perception of the high court as politically partisan.” I share that concern but offer another way to telling what makes a court political. All courts are political. It’s just a difference of whether they are attuned to the crass politics of personal favors (bad), or to the loftier politics of constitutional values (good).
Locally, a judge is considered “political” if he decides according to forbidden loyalties to favor either his political patron or the highest bidder among the litigants. That is politics in a conspiratorial, Machiavellian sense. That is “politics with a small p,” and it is wrong. To find those judges, you must turn to Sherlock Holmes.
Abroad, there is a classic school of thought called Legal Realism advanced more than a century ago by Oliver Wendell Holmes Jr., who recognized that all judges are human beings affected by the whole range of biases acquired over a lifetime—and that, he said, was simply inevitable. The goal therefore was to expose and surface those biases, and test them against the values enshrined in the Constitution. When a judge adheres to “politics with a capital P,” it is good. That is why Holmes concluded: “The business of a law school is … to teach law in the grand manner and to make great lawyers.”
Holmes said: “The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose… But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form.”
The critics of the Supreme Court have embraced the wrong Holmes. That is why the Supreme Court’s latest ruling contained a “Final Word,” which is worth quoting here.
“It has been insinuated [that] because all the Members of the present Court were appointed by the incumbent President, a majority of them are now granting to her the authority to appoint the [next] Chief Justice. … The insinuation is misguided and utterly unfair. … The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to the contrary proceeds from malice and condescension.”
I am prepared to grant as much to the Court and lament the personal attacks, especially against Justice Renato Corona and, even worse, against his wife. The mudslinging demeans both the office of the chief justice and the Court itself.
SC critics are better off with the Legal Realist test. For instance, they invoke the separation of powers and the independence of the judiciary from the executive. The SC decision rightly says that, on the contrary, if you want the chief justice to be inclined to check the president, it’s better to have the outgoing president do the appointing. From a purely textual standpoint, they’re absolutely right. If the goal is to have checks and balances, why have the “check-er” appointed by the “check-ee”? But from a historical standpoint, they cannot be more wrong. The true threat to the Constitution right now is an outgoing Arroyo scheming to insulate herself from the courts after her presidential immunity dissipates into thin air by June 30, 2010.
That only brings us to the next problem: translating what is historically necessary into what is legally correct. The real feat of the Supreme Court is that it gave logical form to a substantive conclusion that I personally think is really far out, as I have explained in past columns.
The Court had several choices. One, it could have washed its hands and declared the case premature. Two, it could have affirmed established doctrine, and held that judicial appointments including that of the chief justice are covered by the elections ban. And three, as it actually has done, the Court has seized the bull by the horns, reversed the case-law, and ruled that the elections ban did not apply to the appointment of the chief justice.
From the standpoint of legal doctrine, either Option 1 or 2 would have offered the path of least resistance. Either way, the Court would be able to reconcile what is historically desirable with what is legally settled. But Option 3 takes the cake because it pushed for deviations from established doctrine while extending the reach of a lame-duck President, insulating herself from justice.
To take Option 3, the Court had to deviate from settled rules: that its clashing provisions must be reconciled and that the two competing clauses of the Constitution here can be reconciled by merely letting the next president appoint. The lowest point was when the Court gratuitously addressed a question not even raised squarely before it—whether the President can appoint even without a list from the Judicial and Bar Council—and suggested it would say yes.
On the other hand, what troubles me with the usual criticisms of the latest SC ruling is the ideological position that courts should mechanically apply the law and not interpret it, as if that were ever truly possible, and that courts should mainly adhere to established doctrine and never reverse it. Remember that the most magnificent strides in civil rights were made by bold justices who dreamt of a more just world and dared to stretch legal texts way beyond the rigid meanings that had caused pain to countless innocents.
* * *
Comments to passionforreason@gmail.com
see:
http://opinion.inquirer.net/inquireropinion/columns/view/20100422-265878/The-other-meaning-of-political-court
The other meaning of ‘political court’
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 21:16:00 04/22/2010
THE INQUIRER’S EDITORIAL on Thursday struck at the heart of the raging debate on whether President Macapagal-Arroyo is entitled to appoint the new chief justice: the “uncomfortable truth” about the “public perception of the high court as politically partisan.” I share that concern but offer another way to telling what makes a court political. All courts are political. It’s just a difference of whether they are attuned to the crass politics of personal favors (bad), or to the loftier politics of constitutional values (good).
Locally, a judge is considered “political” if he decides according to forbidden loyalties to favor either his political patron or the highest bidder among the litigants. That is politics in a conspiratorial, Machiavellian sense. That is “politics with a small p,” and it is wrong. To find those judges, you must turn to Sherlock Holmes.
Abroad, there is a classic school of thought called Legal Realism advanced more than a century ago by Oliver Wendell Holmes Jr., who recognized that all judges are human beings affected by the whole range of biases acquired over a lifetime—and that, he said, was simply inevitable. The goal therefore was to expose and surface those biases, and test them against the values enshrined in the Constitution. When a judge adheres to “politics with a capital P,” it is good. That is why Holmes concluded: “The business of a law school is … to teach law in the grand manner and to make great lawyers.”
Holmes said: “The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose… But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form.”
The critics of the Supreme Court have embraced the wrong Holmes. That is why the Supreme Court’s latest ruling contained a “Final Word,” which is worth quoting here.
“It has been insinuated [that] because all the Members of the present Court were appointed by the incumbent President, a majority of them are now granting to her the authority to appoint the [next] Chief Justice. … The insinuation is misguided and utterly unfair. … The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to the contrary proceeds from malice and condescension.”
I am prepared to grant as much to the Court and lament the personal attacks, especially against Justice Renato Corona and, even worse, against his wife. The mudslinging demeans both the office of the chief justice and the Court itself.
SC critics are better off with the Legal Realist test. For instance, they invoke the separation of powers and the independence of the judiciary from the executive. The SC decision rightly says that, on the contrary, if you want the chief justice to be inclined to check the president, it’s better to have the outgoing president do the appointing. From a purely textual standpoint, they’re absolutely right. If the goal is to have checks and balances, why have the “check-er” appointed by the “check-ee”? But from a historical standpoint, they cannot be more wrong. The true threat to the Constitution right now is an outgoing Arroyo scheming to insulate herself from the courts after her presidential immunity dissipates into thin air by June 30, 2010.
That only brings us to the next problem: translating what is historically necessary into what is legally correct. The real feat of the Supreme Court is that it gave logical form to a substantive conclusion that I personally think is really far out, as I have explained in past columns.
The Court had several choices. One, it could have washed its hands and declared the case premature. Two, it could have affirmed established doctrine, and held that judicial appointments including that of the chief justice are covered by the elections ban. And three, as it actually has done, the Court has seized the bull by the horns, reversed the case-law, and ruled that the elections ban did not apply to the appointment of the chief justice.
From the standpoint of legal doctrine, either Option 1 or 2 would have offered the path of least resistance. Either way, the Court would be able to reconcile what is historically desirable with what is legally settled. But Option 3 takes the cake because it pushed for deviations from established doctrine while extending the reach of a lame-duck President, insulating herself from justice.
To take Option 3, the Court had to deviate from settled rules: that its clashing provisions must be reconciled and that the two competing clauses of the Constitution here can be reconciled by merely letting the next president appoint. The lowest point was when the Court gratuitously addressed a question not even raised squarely before it—whether the President can appoint even without a list from the Judicial and Bar Council—and suggested it would say yes.
On the other hand, what troubles me with the usual criticisms of the latest SC ruling is the ideological position that courts should mechanically apply the law and not interpret it, as if that were ever truly possible, and that courts should mainly adhere to established doctrine and never reverse it. Remember that the most magnificent strides in civil rights were made by bold justices who dreamt of a more just world and dared to stretch legal texts way beyond the rigid meanings that had caused pain to countless innocents.
* * *
Comments to passionforreason@gmail.com
see:
http://opinion.inquirer.net/inquireropinion/columns/view/20100422-265878/The-other-meaning-of-political-court
Impressive credentials
I am gratified by the improving quality of recent appointments to the judiciary as shown by the very impressive academic credentials of the four latest appointees to the Court of Appeals last month, infra:
Justice Myra G. Fernandez
Justice Myra Garcia Fernandez, 46, was Manila Regional Trial Court (RTC) Branch 18 Judge and Acting Judge of Branches 12 and 37 from 2004 up to the time she was named to the CA.
Previously, Justice Fernandez served as Manila Metropolitan Trial Court (MeTC) Branch 10 Judge, Acting Judge of Branches 28 and 6, and as Manila MeTC Executive Judge. She also had stints in private practice and as law clerk in the Supreme Court (SC) for Justices Leo D. Medialdea and Josue N. Bellosillo.
A consistent honor student, the lady magistrate obtained her Bachelor of Laws degree from the University of Santo Tomas (UST), cum laude, and Bachelor of Arts degree, also cum laude, from the same university. Armed with a masters degree in International Studies from the De La Salle University in Manila, she is currently taking her Master of Laws studies at the Pamantasan ng Lungsod ng Maynila, an endeavor she began in 2009.
Justice Fernandez is a three-time Judicial Excellence Awardee, winning in the categories of Best Pre-Trial Judge, Outstanding MeTC Judge, and Best Decision Civil Case.
Justice Fernandez has had a number of relevant trainings, including that on Public International Law from the Hague Academy of International Law in Netherlands in 2008.
She teaches law at the PLM, as well as the Unibersidad de Manila.
Justice Eduardo B. Peralta, Jr.
Justice Eduardo Basa Peralta, Jr. holds the distinction of being the first graduate, cum laude, of the San Beda Graduate School of Law in 2005. In 2008, he finished his Doctor of Civil Laws degree from the UST Graduate School, earning in all 45 units a flat 1.0 grade.
Justice Peralta started his career in the Judiciary in 1989 as a freshman lawyer in the Office then CA Justice Jose A.R. Melo. He served as Manila MeTC, Branch 13 Judge from 1995 to 2002 when he was appointed as Judge of the Manila RTC, Branch 17.
The 47-year old judge has authored Perspectives of Evidence (2005 Edition) and co-authored The 1991 Revised Rule on Summary Procedure: Revisited (2001 with 2003 Revisions), and Handbook on Summary and Small Claims Procedure, and Bouncing Checks Law (With Notes on Ejectment and Karatungang Pambarangay Law), currently under proofreading.
Justice Peralta was awarded Outstanding RTC Judge of Manila during the 437th Founding Anniversary Celebration of the City of Manila in 2008.
Justice Peralta is currently a part-time professor at the Angeles University School of Law in Pampanga, teaching land titles, criminal law, evidence, criminal law review, thesis writing, and practice court. He has also taught at the San Beda College of Law, Lyceum College of Law, and San Sebastian College of Law, all in Manila. He is a member of the Sub-Committee of the SC on the Revision of the Rules on Criminal Procedure
Justice Nina G. Antonio-Valenzuela
Forty-five year old Justice Nina Geluz Antonio-Valenzuela first joined the Judiciary as technical assistant to then SC Justice Ameurfina A. Melencio Herrera. She later on served as Chief Legislative Staff Officer at the House of Representatives Electoral Tribunal (HRET), detailed at the Court. She then worked in the Office of CA Justice Buenaventura Guerrero before becoming MeTC Manila Branch 28 Presiding Judge in 2000. In 2004, she was promoted to Presiding Judge of the Manila RTC Branch 28.
Justice Valenzuela has completed academic subjects for Master of Laws ladderized program for judges at the Philippine Judicial Academy-San Beda College of Law Consortium and was a participant in the “Improvement of Judicial Fairness and Efficient Judicial Administration” seminar under the auspices of the Supreme Court of Korea and Korea International Cooperation Agency in South Korea in 2008.
A University of the Philippine alumnus (College of Law, and College of Social Sciences and Philosophy), she currently teaches law at the Adamson College of Law.
Justice Ramon Paul L. Hernando
Justice Ramon Paul Layugan Hernando began his government career as Legislative Staff Officer at the Senate Electoral Tribunal under then Justice Edgardo L. Paras in 1991. He later served under the Office of Justice Florenz D. Regalado. In 1998, he transferred to the Department of Justice. In 2003, he was appointed San Pablo City RTC Branch 92 Judge. In 2006, he transferred to the Quezon City RTC, Branch 93.
An alumnus of the San Beda College of Law, Justice Hernando has earned masteral units from the San Beda Graduate School of Law and the Ateneo Graduate School of Business. He is currently a lecturer at the UST Faculty of Civil Law and the Far Eastern University. In the past, he has served as lecturer at the Angeles University College of Law in Pampanga, and the San Beda College of Law in Manila.
Justice Hernando has co-authored the book Notes and Cases on Transportation Law and Public Utilities.
He has also attended the Regional Capacity Building Scholarship Program at the National University of Singapore in 2007 and Management Development for Court Administrators in Manila and in Sydney, Australia training conducted by the Philippine-Australia Human Resource Development Fund in 2006.
see:
sc.judiciary.gov.ph
Justice Myra G. Fernandez
Justice Myra Garcia Fernandez, 46, was Manila Regional Trial Court (RTC) Branch 18 Judge and Acting Judge of Branches 12 and 37 from 2004 up to the time she was named to the CA.
Previously, Justice Fernandez served as Manila Metropolitan Trial Court (MeTC) Branch 10 Judge, Acting Judge of Branches 28 and 6, and as Manila MeTC Executive Judge. She also had stints in private practice and as law clerk in the Supreme Court (SC) for Justices Leo D. Medialdea and Josue N. Bellosillo.
A consistent honor student, the lady magistrate obtained her Bachelor of Laws degree from the University of Santo Tomas (UST), cum laude, and Bachelor of Arts degree, also cum laude, from the same university. Armed with a masters degree in International Studies from the De La Salle University in Manila, she is currently taking her Master of Laws studies at the Pamantasan ng Lungsod ng Maynila, an endeavor she began in 2009.
Justice Fernandez is a three-time Judicial Excellence Awardee, winning in the categories of Best Pre-Trial Judge, Outstanding MeTC Judge, and Best Decision Civil Case.
Justice Fernandez has had a number of relevant trainings, including that on Public International Law from the Hague Academy of International Law in Netherlands in 2008.
She teaches law at the PLM, as well as the Unibersidad de Manila.
Justice Eduardo B. Peralta, Jr.
Justice Eduardo Basa Peralta, Jr. holds the distinction of being the first graduate, cum laude, of the San Beda Graduate School of Law in 2005. In 2008, he finished his Doctor of Civil Laws degree from the UST Graduate School, earning in all 45 units a flat 1.0 grade.
Justice Peralta started his career in the Judiciary in 1989 as a freshman lawyer in the Office then CA Justice Jose A.R. Melo. He served as Manila MeTC, Branch 13 Judge from 1995 to 2002 when he was appointed as Judge of the Manila RTC, Branch 17.
The 47-year old judge has authored Perspectives of Evidence (2005 Edition) and co-authored The 1991 Revised Rule on Summary Procedure: Revisited (2001 with 2003 Revisions), and Handbook on Summary and Small Claims Procedure, and Bouncing Checks Law (With Notes on Ejectment and Karatungang Pambarangay Law), currently under proofreading.
Justice Peralta was awarded Outstanding RTC Judge of Manila during the 437th Founding Anniversary Celebration of the City of Manila in 2008.
Justice Peralta is currently a part-time professor at the Angeles University School of Law in Pampanga, teaching land titles, criminal law, evidence, criminal law review, thesis writing, and practice court. He has also taught at the San Beda College of Law, Lyceum College of Law, and San Sebastian College of Law, all in Manila. He is a member of the Sub-Committee of the SC on the Revision of the Rules on Criminal Procedure
Justice Nina G. Antonio-Valenzuela
Forty-five year old Justice Nina Geluz Antonio-Valenzuela first joined the Judiciary as technical assistant to then SC Justice Ameurfina A. Melencio Herrera. She later on served as Chief Legislative Staff Officer at the House of Representatives Electoral Tribunal (HRET), detailed at the Court. She then worked in the Office of CA Justice Buenaventura Guerrero before becoming MeTC Manila Branch 28 Presiding Judge in 2000. In 2004, she was promoted to Presiding Judge of the Manila RTC Branch 28.
Justice Valenzuela has completed academic subjects for Master of Laws ladderized program for judges at the Philippine Judicial Academy-San Beda College of Law Consortium and was a participant in the “Improvement of Judicial Fairness and Efficient Judicial Administration” seminar under the auspices of the Supreme Court of Korea and Korea International Cooperation Agency in South Korea in 2008.
A University of the Philippine alumnus (College of Law, and College of Social Sciences and Philosophy), she currently teaches law at the Adamson College of Law.
Justice Ramon Paul L. Hernando
Justice Ramon Paul Layugan Hernando began his government career as Legislative Staff Officer at the Senate Electoral Tribunal under then Justice Edgardo L. Paras in 1991. He later served under the Office of Justice Florenz D. Regalado. In 1998, he transferred to the Department of Justice. In 2003, he was appointed San Pablo City RTC Branch 92 Judge. In 2006, he transferred to the Quezon City RTC, Branch 93.
An alumnus of the San Beda College of Law, Justice Hernando has earned masteral units from the San Beda Graduate School of Law and the Ateneo Graduate School of Business. He is currently a lecturer at the UST Faculty of Civil Law and the Far Eastern University. In the past, he has served as lecturer at the Angeles University College of Law in Pampanga, and the San Beda College of Law in Manila.
Justice Hernando has co-authored the book Notes and Cases on Transportation Law and Public Utilities.
He has also attended the Regional Capacity Building Scholarship Program at the National University of Singapore in 2007 and Management Development for Court Administrators in Manila and in Sydney, Australia training conducted by the Philippine-Australia Human Resource Development Fund in 2006.
see:
sc.judiciary.gov.ph
Chain of evidence
In GR No. 188900, People v. Habana, March 5, 2010, the Philippine Supreme Court ordered the acquittal of an accused drug dealer for failure of police officers to observe the chain of custody rule under the Dangerous Drugs Act.
The Court of Appeals and the Caloocan Regional Trial Court (RTC) had found Fernando Habana guilty of violation of secs. 5 and 11, Art. II of RA 9165, the Dangerous Drugs Act, for selling and possession of sachets of methamphetamine hydrochloride commonly known as shabu. The Caloocan RTC sentenced Habana to a penalty of life imprisonment and a fine of PhP500,000 for selling illegal drugs and imprisonment for 12 to 14 years and a fine of PhP300,000 for possession.
In reversing the rulings of both courts, the High Tribunal held that the prosecution failed to prove the existence of the prohibited drugs under the requirements set by RA 9165, specifically the chain of custody rule which requires that testimony be presented about every link in the chain, from the moment the item was seized up to the time it is offered in evidence. The prosecution was unable to establish how the seized items changed hands, from when the police officers seized the drugs from Habana to the time they were presented in court as evidence particularly what the investigator on duty did with the seized articles, how these got to the laboratory technician, and how they were kept before being adduced in evidence at the trial.
The Court noted that while it recognizes that substantial adherence and not perfect adherence to the requirements of RA 9165 and its implementing rules and regulations is what is demanded of police officers attending to drugs cases, “such officers must present justifiable reason for their imperfect conduct and show that the integrity and evidentiary value of the seized items had been preserved.” The police, however, failed to offer an explanation for their failure to comply with the procedure thus compromising the identity and integrity of the items seized which is the corpus delicti of the crimes charged against Habana.
see:
http://sc.judiciary.gov.ph/publications/benchmark/2010/031003.php
The Court of Appeals and the Caloocan Regional Trial Court (RTC) had found Fernando Habana guilty of violation of secs. 5 and 11, Art. II of RA 9165, the Dangerous Drugs Act, for selling and possession of sachets of methamphetamine hydrochloride commonly known as shabu. The Caloocan RTC sentenced Habana to a penalty of life imprisonment and a fine of PhP500,000 for selling illegal drugs and imprisonment for 12 to 14 years and a fine of PhP300,000 for possession.
In reversing the rulings of both courts, the High Tribunal held that the prosecution failed to prove the existence of the prohibited drugs under the requirements set by RA 9165, specifically the chain of custody rule which requires that testimony be presented about every link in the chain, from the moment the item was seized up to the time it is offered in evidence. The prosecution was unable to establish how the seized items changed hands, from when the police officers seized the drugs from Habana to the time they were presented in court as evidence particularly what the investigator on duty did with the seized articles, how these got to the laboratory technician, and how they were kept before being adduced in evidence at the trial.
The Court noted that while it recognizes that substantial adherence and not perfect adherence to the requirements of RA 9165 and its implementing rules and regulations is what is demanded of police officers attending to drugs cases, “such officers must present justifiable reason for their imperfect conduct and show that the integrity and evidentiary value of the seized items had been preserved.” The police, however, failed to offer an explanation for their failure to comply with the procedure thus compromising the identity and integrity of the items seized which is the corpus delicti of the crimes charged against Habana.
see:
http://sc.judiciary.gov.ph/publications/benchmark/2010/031003.php
Criminal complaints vs. SC justices; procedure.
In AM No. 10-1-13-SC, Re: Subpoena Duces Tecum Dated January 11, 2010 of Acting Director Aleu A. Amante, PIAB-C, Office of the Ombudsman, March 2, 2010, the Philippine Supreme Court reiterated he following basic doctrines:
1. The Court held that under the ruling in In re Wenceslao Laureta and Alzua v. Arnalot, a criminal complaint for violation of sec. 3(e) of RA 3019, based on the legal correctness of the official acts of Justices of the Supreme Court, cannot prosper and should not be entertained. This is not to say that Members of the Court are absolutely immune from suit during their term, for they are not. The Constitution provides that the appropriate recourse against them is to seek their removal from office if they are guilty of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Only after removal can they be criminally proceeded against for their transgressions. While in office and thereafter, and for their official acts do not constitute impeachable offenses, recourses against them and their liabilities therefor, are as defined in the above rulings.
2. The Court also found that the Lozanos also brazenly misquoted and misused applicable constitutional provisions to justify their case against the retired Justices. Citing sec. 4(3), Art. VIII of the Constitution, the Court stressed that cases or matters heard by a division can be decided or resolved with the concurrence of at least three members of a division.
3. “In our view, the complainants’ errors do not belong to the genre of plain and simple errors that lawyers commit in the practice of their profession. Their plain disregard, misuse, and misrepresentation of constitutional provisions constitute serious misconduct that reflects on their fitness for continued membership in the Philippine Bar,” the Court said.
1. The Court held that under the ruling in In re Wenceslao Laureta and Alzua v. Arnalot, a criminal complaint for violation of sec. 3(e) of RA 3019, based on the legal correctness of the official acts of Justices of the Supreme Court, cannot prosper and should not be entertained. This is not to say that Members of the Court are absolutely immune from suit during their term, for they are not. The Constitution provides that the appropriate recourse against them is to seek their removal from office if they are guilty of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Only after removal can they be criminally proceeded against for their transgressions. While in office and thereafter, and for their official acts do not constitute impeachable offenses, recourses against them and their liabilities therefor, are as defined in the above rulings.
2. The Court also found that the Lozanos also brazenly misquoted and misused applicable constitutional provisions to justify their case against the retired Justices. Citing sec. 4(3), Art. VIII of the Constitution, the Court stressed that cases or matters heard by a division can be decided or resolved with the concurrence of at least three members of a division.
3. “In our view, the complainants’ errors do not belong to the genre of plain and simple errors that lawyers commit in the practice of their profession. Their plain disregard, misuse, and misrepresentation of constitutional provisions constitute serious misconduct that reflects on their fitness for continued membership in the Philippine Bar,” the Court said.
Small claims courts now operate nationwide
2010 Court News Flash March 2010
www.sc.judiciary.gov.ph
Widening the Avenues of Justice
1,137 Courts Now to Hear Small Claims Cases
March 30, 2010
By Jay B. Rempillo
All 1,137 first-level courts nationwide, except Shari’a courts, are now hearing small claims cases thus widening the avenues of justice of our people. Previously, small claims were heard only by 44 designated-first level courts.
Effective last March 18, the 82 Metropolitan Trial Courts (MeTCs), 212 Municipal Trial Courts in Cities (MTCCs), 376 Municipal Trial Courts (MTCs), and 467 Municipal Circuit Trial Courts (MCTCs) have been authorized by the Supreme Court to hear small claims cases.
Under the High Court’s small claims project, ordinary Filipinos are empowered to litigate on their own money claims of PhP100,000 or less by providing them an inexpensive, informal, and simple procedure.
Dubbed as the “People’s Courts,” the procedure for small claims case relaxes or dispenses with ordinary rules of civil procedure and evidence such as strict pleading requirements and formal discovery measures. Disputes are resolved quickly and inexpensively particularly because lawyers are not allowed during hearings. Most of all, these courts are tasked to decide cases only at the first hearing.
The Supreme Court has been continuously training first-level courts judges and clerks of courts to familiarize them with the technicalities of the small claims procedure. Two Seminar-Workshops on the Amended Rule of Procedure for Small Claims Cases were held last week for the National Capital Judicial Region (NCJR).
Meanwhile, the Supreme Court Technical Working Group, composed of various SC officials, select justices, and a representative of the Integrated Bar of the Philippines, and the American Bar Association Rule of Law Initiative (ABA) has provided a handbook on the small claims process for small claims judges and clerks of court. The handbook provides in a straightforward manner the duties of the judge and clerk of court, as well as covers a range of topics such as determining the eligibility of a claim, docketing and raffling of a case, service of summons and notice of hearing, settlement of a case hearing proper, and promulgation of the decision, among others.
Clerks of court and branch clerks of court are tasked to explain the Rule on Small Claims to interested litigants, as well as occasionally help them out in filling up the Statement of Claim and Response Forms. Process servers and sheriffs may also provide information to the parties about the Rule when they serve summons and notice of hearing.
Through OCA Circular No. 35-2010, Court Administrator Jose Midas P. Marquez has already directed the raffling of the small claims filed in multiple sala court stations among its branches. The 44 pilot courts for small claims cases, however, shall not be included in the raffle until the small claims cases are equitably distributed to all courts.
Apart from lectures on the Amended Rule, small claims judges and clerks of court were also given skills training on mediation-conflict management. The seminar-workshops were a joint-initiative by the Supreme Court of the Philippines, the Philippine Judicial Academy (PHILJA) and the Office of the Court Administrator (OCA) in partnership with the United States Agency for International Development (USAID) and the American Bar Association Rule of Law Initiative (ABA).
The small claims courts resolve cases of the poor at the quickest time, cut their cost of litigation, and widen their access to the courts
(SC En Banc Resolutions dated 27 October 2009 and 16 February 2010 in A.M. No. 08-8-7-SC).
see:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/03/03301001.php
www.sc.judiciary.gov.ph
Widening the Avenues of Justice
1,137 Courts Now to Hear Small Claims Cases
March 30, 2010
By Jay B. Rempillo
All 1,137 first-level courts nationwide, except Shari’a courts, are now hearing small claims cases thus widening the avenues of justice of our people. Previously, small claims were heard only by 44 designated-first level courts.
Effective last March 18, the 82 Metropolitan Trial Courts (MeTCs), 212 Municipal Trial Courts in Cities (MTCCs), 376 Municipal Trial Courts (MTCs), and 467 Municipal Circuit Trial Courts (MCTCs) have been authorized by the Supreme Court to hear small claims cases.
Under the High Court’s small claims project, ordinary Filipinos are empowered to litigate on their own money claims of PhP100,000 or less by providing them an inexpensive, informal, and simple procedure.
Dubbed as the “People’s Courts,” the procedure for small claims case relaxes or dispenses with ordinary rules of civil procedure and evidence such as strict pleading requirements and formal discovery measures. Disputes are resolved quickly and inexpensively particularly because lawyers are not allowed during hearings. Most of all, these courts are tasked to decide cases only at the first hearing.
The Supreme Court has been continuously training first-level courts judges and clerks of courts to familiarize them with the technicalities of the small claims procedure. Two Seminar-Workshops on the Amended Rule of Procedure for Small Claims Cases were held last week for the National Capital Judicial Region (NCJR).
Meanwhile, the Supreme Court Technical Working Group, composed of various SC officials, select justices, and a representative of the Integrated Bar of the Philippines, and the American Bar Association Rule of Law Initiative (ABA) has provided a handbook on the small claims process for small claims judges and clerks of court. The handbook provides in a straightforward manner the duties of the judge and clerk of court, as well as covers a range of topics such as determining the eligibility of a claim, docketing and raffling of a case, service of summons and notice of hearing, settlement of a case hearing proper, and promulgation of the decision, among others.
Clerks of court and branch clerks of court are tasked to explain the Rule on Small Claims to interested litigants, as well as occasionally help them out in filling up the Statement of Claim and Response Forms. Process servers and sheriffs may also provide information to the parties about the Rule when they serve summons and notice of hearing.
Through OCA Circular No. 35-2010, Court Administrator Jose Midas P. Marquez has already directed the raffling of the small claims filed in multiple sala court stations among its branches. The 44 pilot courts for small claims cases, however, shall not be included in the raffle until the small claims cases are equitably distributed to all courts.
Apart from lectures on the Amended Rule, small claims judges and clerks of court were also given skills training on mediation-conflict management. The seminar-workshops were a joint-initiative by the Supreme Court of the Philippines, the Philippine Judicial Academy (PHILJA) and the Office of the Court Administrator (OCA) in partnership with the United States Agency for International Development (USAID) and the American Bar Association Rule of Law Initiative (ABA).
The small claims courts resolve cases of the poor at the quickest time, cut their cost of litigation, and widen their access to the courts
(SC En Banc Resolutions dated 27 October 2009 and 16 February 2010 in A.M. No. 08-8-7-SC).
see:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/03/03301001.php
Questions
The Philippine STAR, Sunday, April 18, 2010, Page 18
10 QUESTIONS WE SHOULD ASK THE NEXT CHIEF JUSTICE
1. Is it your view that President Gloria Macapagal-Arroyo has legal and constitutional basis to continue in office after June 30, 2010 in the event f a massive failure of elections or the inability of Congress to proclaim her successor?
2. Will the cloud of doubt arising from your closeness to President Arroyo and your voting record in several controversial cases involving checks against the excesses in the exercise of Executive power and prerogatives affect the perception of your impartiality and independence when you are called upon to decide on criminal cases that will be filed against President Arroyo after the end of her term on June 30, 2010?
3. Is it appropriate for a member of the Supreme Court facing serious charges of ethical misconduct to aspire for the leadership of the Judiciary given the challenge of restoring public faith in our judicial system?
4. When approached by a fellow member of the Supreme Court, a counsel or litigant regarding a pending case before him, is it proper for such member of the Supreme Court to keep the matter secret and refuse to file the appropriate complaint for breach of professional and judicial ethics?
5. Is it proper for you to decide cases questioning the acts and policies of the Chief Executive who appointed your spouse or member of your family to a position in the Executive Branch, for which they receive substantial salaries, benefits and emoluments?
6. Is it proper for a member of the Supreme Court to hold bank accounts in his name fro the benefit of the members of the First Family?
7. Is it proper for a member of the Supreme Court to attend social functions as special guests of businessmen and politicians who have cases pending before the Supreme Court involving their commercial or partisan interest?
8. Does it impair Judicial independence for a member of the Supreme Court to accept any kind of assistance or benefit, financial or otherwise, from the President, PAGCOR, PCSO, or any government agency or public official, or any of the President’s relatives or friends?
9. Considering the public outrage against 11th hour appointment of the next Chief Justice by President Arroyo, do you think you will have the moral ascendancy to effectively lead the Judiciary as the primus inter pares of the Supreme Court?
10. Will it impair judicial independence if the Supreme Court is put under the specter of an impeachment complaint that will be filed against you for culpable violation of the Constitution in accepting a midnight appointment from President Arroyo?
10 QUESTIONS WE SHOULD ASK THE NEXT CHIEF JUSTICE
1. Is it your view that President Gloria Macapagal-Arroyo has legal and constitutional basis to continue in office after June 30, 2010 in the event f a massive failure of elections or the inability of Congress to proclaim her successor?
2. Will the cloud of doubt arising from your closeness to President Arroyo and your voting record in several controversial cases involving checks against the excesses in the exercise of Executive power and prerogatives affect the perception of your impartiality and independence when you are called upon to decide on criminal cases that will be filed against President Arroyo after the end of her term on June 30, 2010?
3. Is it appropriate for a member of the Supreme Court facing serious charges of ethical misconduct to aspire for the leadership of the Judiciary given the challenge of restoring public faith in our judicial system?
4. When approached by a fellow member of the Supreme Court, a counsel or litigant regarding a pending case before him, is it proper for such member of the Supreme Court to keep the matter secret and refuse to file the appropriate complaint for breach of professional and judicial ethics?
5. Is it proper for you to decide cases questioning the acts and policies of the Chief Executive who appointed your spouse or member of your family to a position in the Executive Branch, for which they receive substantial salaries, benefits and emoluments?
6. Is it proper for a member of the Supreme Court to hold bank accounts in his name fro the benefit of the members of the First Family?
7. Is it proper for a member of the Supreme Court to attend social functions as special guests of businessmen and politicians who have cases pending before the Supreme Court involving their commercial or partisan interest?
8. Does it impair Judicial independence for a member of the Supreme Court to accept any kind of assistance or benefit, financial or otherwise, from the President, PAGCOR, PCSO, or any government agency or public official, or any of the President’s relatives or friends?
9. Considering the public outrage against 11th hour appointment of the next Chief Justice by President Arroyo, do you think you will have the moral ascendancy to effectively lead the Judiciary as the primus inter pares of the Supreme Court?
10. Will it impair judicial independence if the Supreme Court is put under the specter of an impeachment complaint that will be filed against you for culpable violation of the Constitution in accepting a midnight appointment from President Arroyo?
Friday, April 16, 2010
Failure of election is biggest injustice
Conformably to my previous entries which theorized that the biggest social injustice any nation can face is a massive failure of election perpetrated by the ruling party, may I quote in full below a recent headline news of the Philippine Daily Inquirer detailing the telltale signs of a potential failure of the May 20, 2010 automated election system (AES) as deduced by technical experts monitoring the Philippine situation.
Under technology, the danger signs are:
* Plans to secure and house PCOS (precinct count optical scan) machines and hardware components “remain undetermined.”
* The entire batch of 82,000 PCOS machines and their components, servers, printers, power generators, 180,640 memory cards, 82,200 batteries “have not been fully tested.”
* “No rigorous field testing” of PCOS machines has been held, except in a few areas where there had been “high ballot rejection rates.”
* The source code, the so-called brain of the machines, “remains highly restricted.” “No full, independent systems audit report (has been) released to date.”
* The use of two memory cards for each machine is likely to invite “overproduction of memory cards” and open up “opportunities for mishandling, theft, vandalism or cheating.”
* Only 70 percent of voting centers have cellular network or broadband signals needed to transmit voting results. “Contractual arrangements with telecommunications providers have not been disclosed.”
* No independent party has been designated to handle private keys that would unlock PCOS machines prior to transmission of results.
Under process, the danger signs were seen:
* The system of transporting and keeping the machines in safe warehouses is hazy. “Three small and widely unknown logistics companies” were given contracts.
* Ballot printing has been “drastically delayed.”
* “Critical contracts, instructions, plans and procedures have not been made public.”
Under people, the paper continued, these danger signs are too obvious to ignore:
* There has been no sufficient training for 230,000 teachers who would be tapped for election duty.
* A shortage of manpower hounds the process. Smartmatic, the firm that won the automation contract, needs 48,000 field technology specialists.
* “Comelec has failed to make major progress to cleanse the voters’ list.”
* Voters have not been sufficiently informed of new clustered precinct assignments.
Election failure to favor Arroyo
Think tank cites 14 danger signs
By Tony Bergonia
Philippine Daily Inquirer
First Posted 00:52:00 04/16/2010
MANILA, Philippines—A multinational firm doing intelligence work for a host of embassies and some of the world’s top corporations has said signs that the Philippines’ first automated balloting on May 10 would fail are getting clearer as the elections draw closer.
In a paper entitled “Assessing 2010 Elections Automation in the Philippines,” Pacific Strategies and Assessments (PSA) said it had found 14 danger signs that the elections were bound to run into a wall of problems, or worse, completely fail.
The paper, submitted to PSA clients that include top US officials in Manila, said that the Arroyo administration was doing very little to assure people of fair and honest elections and might even benefit from failed elections.
“The automation project has been a sideshow to the ongoing shenanigans of sitting President Gloria Macapagal-Arroyo who is trying to dominate the Lower House after the 2010 elections,” the PSA paper said.
“There is widespread suspicion that Arroyo will somehow capitalize on automated elections problems or failure to advance her and her family’s interests and perpetuate herself in power,” it said.
“While there are many theories concerning Arroyo and her political gamesmanship, her history of committing electoral fraud and unwillingness to vociferously endorse free, fair and transparent automated elections has been enough to stir up a justifiable collective mistrust.”
Gary Olivar, deputy presidential spokesperson, shrugged off the PSA report, saying “critics are barking up the wrong tree as well as sending the wrong message.”
He said the opposition had converted the automation issue into a “whipping stick against a president who’s already leaving office, as well as an excuse to foment street adventurism again in case they lose.”
On the firm’s contention that Ms Arroyo would capitalize on the problems to stay in power, Olivar said: “Suspicions are cheap, evidence expensive.”
Most important elections
PSA, which has offices in Makati, Hong Kong, Beijing, Shanghai, Bangkok and Milwaukee, regularly prepares for its clients intelligence briefs, including political situations and economic risks in the Philippines and other countries in the Pacific.
“There is no doubt that May 10, 2010 will be the most important Philippine Election Day since independence in 1946,” said PSA.
Asked why PSA considered the coming elections the Philippines’ most crucial, PSA director Pete Troilo said that in the next six years, “the differences between Asia’s winners and losers will become very clear.”
“What side of that fence the Philippines will be on will be determined by the next administration. There’s a lot at stake and the country is trailing,” Troilo said in a text message to the Inquirer.
Risks and vulnerabilities
The PSA paper listed what it said were the “many risks and vulnerabilities,” of automation under three categories—technology, process and people.
Under technology, the paper said, the danger signs are:
* Plans to secure and house PCOS (precinct count optical scan) machines and hardware components “remain undetermined.”
* The entire batch of 82,000 PCOS machines and their components, servers, printers, power generators, 180,640 memory cards, 82,200 batteries “have not been fully tested.”
* “No rigorous field testing” of PCOS machines has been held, except in a few areas where there had been “high ballot rejection rates.”
* The source code, the so-called brain of the machines, “remains highly restricted.” “No full, independent systems audit report (has been) released to date.”
* The use of two memory cards for each machine is likely to invite “overproduction of memory cards” and open up “opportunities for mishandling, theft, vandalism or cheating.”
* Only 70 percent of voting centers have cellular network or broadband signals needed to transmit voting results. “Contractual arrangements with telecommunications providers have not been disclosed.”
* No independent party has been designated to handle private keys that would unlock PCOS machines prior to transmission of results.
Transport, warehousing
Under process, the PSA paper said, these danger signs were seen:
* The system of transporting and keeping the machines in safe warehouses is hazy. “Three small and widely unknown logistics companies” were given contracts.
* Ballot printing has been “drastically delayed.”
* “Critical contracts, instructions, plans and procedures have not been made public.”
Under people, the paper continued, these danger signs are too obvious to ignore:
* There has been no sufficient training for 230,000 teachers who would be tapped for election duty.
* A shortage of manpower hounds the process. Smartmatic, the firm that won the automation contract, needs 48,000 field technology specialists.
* “Comelec has failed to make major progress to cleanse the voters’ list.”
* Voters have not been sufficiently informed of new clustered precinct assignments.
Mechanism for protests
“There is no official record of any country in the world transitioning completely from a pure manual to full automated elections system in one electoral exercise so problems are inevitable,” said the PSA paper.
The paper added that there had been no effort to clarify how electoral protests, common after elections, would be handled under the automated system.
“In Philippine reality … losing candidates do not easily accept defeat so one can reasonably expect a large number of electoral protests,” it said. “These conditions open up opportunities for civil unrest and political instability.”
What makes the situation unpredictable, the paper added, was the absence of any categorical declaration of what Ms Arroyo planned to do when her term expires on June 30.
“Because Arroyo has already been implicated in election fraud, most believe Arroyo would be willing to exploit any perceived malfunction in the automated election to her advantage,” the paper said.
The scariest scenario
“The myriad questions … and President Arroyo’s failure to intercede and address the many election questions and concerns ... suggest to many that Arroyo wants imperfect, if not failed, elections to ensure her allies are perpetuated in power,” it said.
“The scariest scenario remains that the non-proclamation of a president, vice president and 12 senators to constitute a quorum of 24 will prevent the chain of succession in accordance with the 1987 Constitution,” it added.
“Recent public opinion polls suggest a majority of Filipinos believe another People Power revolt could follow any major elections failure despite widely acknowledged People Power fatigue among the general public,” it said. With a report from TJ Burgonio
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100416-264500/Election-failure-to-favor-Arroyo
Under technology, the danger signs are:
* Plans to secure and house PCOS (precinct count optical scan) machines and hardware components “remain undetermined.”
* The entire batch of 82,000 PCOS machines and their components, servers, printers, power generators, 180,640 memory cards, 82,200 batteries “have not been fully tested.”
* “No rigorous field testing” of PCOS machines has been held, except in a few areas where there had been “high ballot rejection rates.”
* The source code, the so-called brain of the machines, “remains highly restricted.” “No full, independent systems audit report (has been) released to date.”
* The use of two memory cards for each machine is likely to invite “overproduction of memory cards” and open up “opportunities for mishandling, theft, vandalism or cheating.”
* Only 70 percent of voting centers have cellular network or broadband signals needed to transmit voting results. “Contractual arrangements with telecommunications providers have not been disclosed.”
* No independent party has been designated to handle private keys that would unlock PCOS machines prior to transmission of results.
Under process, the danger signs were seen:
* The system of transporting and keeping the machines in safe warehouses is hazy. “Three small and widely unknown logistics companies” were given contracts.
* Ballot printing has been “drastically delayed.”
* “Critical contracts, instructions, plans and procedures have not been made public.”
Under people, the paper continued, these danger signs are too obvious to ignore:
* There has been no sufficient training for 230,000 teachers who would be tapped for election duty.
* A shortage of manpower hounds the process. Smartmatic, the firm that won the automation contract, needs 48,000 field technology specialists.
* “Comelec has failed to make major progress to cleanse the voters’ list.”
* Voters have not been sufficiently informed of new clustered precinct assignments.
Election failure to favor Arroyo
Think tank cites 14 danger signs
By Tony Bergonia
Philippine Daily Inquirer
First Posted 00:52:00 04/16/2010
MANILA, Philippines—A multinational firm doing intelligence work for a host of embassies and some of the world’s top corporations has said signs that the Philippines’ first automated balloting on May 10 would fail are getting clearer as the elections draw closer.
In a paper entitled “Assessing 2010 Elections Automation in the Philippines,” Pacific Strategies and Assessments (PSA) said it had found 14 danger signs that the elections were bound to run into a wall of problems, or worse, completely fail.
The paper, submitted to PSA clients that include top US officials in Manila, said that the Arroyo administration was doing very little to assure people of fair and honest elections and might even benefit from failed elections.
“The automation project has been a sideshow to the ongoing shenanigans of sitting President Gloria Macapagal-Arroyo who is trying to dominate the Lower House after the 2010 elections,” the PSA paper said.
“There is widespread suspicion that Arroyo will somehow capitalize on automated elections problems or failure to advance her and her family’s interests and perpetuate herself in power,” it said.
“While there are many theories concerning Arroyo and her political gamesmanship, her history of committing electoral fraud and unwillingness to vociferously endorse free, fair and transparent automated elections has been enough to stir up a justifiable collective mistrust.”
Gary Olivar, deputy presidential spokesperson, shrugged off the PSA report, saying “critics are barking up the wrong tree as well as sending the wrong message.”
He said the opposition had converted the automation issue into a “whipping stick against a president who’s already leaving office, as well as an excuse to foment street adventurism again in case they lose.”
On the firm’s contention that Ms Arroyo would capitalize on the problems to stay in power, Olivar said: “Suspicions are cheap, evidence expensive.”
Most important elections
PSA, which has offices in Makati, Hong Kong, Beijing, Shanghai, Bangkok and Milwaukee, regularly prepares for its clients intelligence briefs, including political situations and economic risks in the Philippines and other countries in the Pacific.
“There is no doubt that May 10, 2010 will be the most important Philippine Election Day since independence in 1946,” said PSA.
Asked why PSA considered the coming elections the Philippines’ most crucial, PSA director Pete Troilo said that in the next six years, “the differences between Asia’s winners and losers will become very clear.”
“What side of that fence the Philippines will be on will be determined by the next administration. There’s a lot at stake and the country is trailing,” Troilo said in a text message to the Inquirer.
Risks and vulnerabilities
The PSA paper listed what it said were the “many risks and vulnerabilities,” of automation under three categories—technology, process and people.
Under technology, the paper said, the danger signs are:
* Plans to secure and house PCOS (precinct count optical scan) machines and hardware components “remain undetermined.”
* The entire batch of 82,000 PCOS machines and their components, servers, printers, power generators, 180,640 memory cards, 82,200 batteries “have not been fully tested.”
* “No rigorous field testing” of PCOS machines has been held, except in a few areas where there had been “high ballot rejection rates.”
* The source code, the so-called brain of the machines, “remains highly restricted.” “No full, independent systems audit report (has been) released to date.”
* The use of two memory cards for each machine is likely to invite “overproduction of memory cards” and open up “opportunities for mishandling, theft, vandalism or cheating.”
* Only 70 percent of voting centers have cellular network or broadband signals needed to transmit voting results. “Contractual arrangements with telecommunications providers have not been disclosed.”
* No independent party has been designated to handle private keys that would unlock PCOS machines prior to transmission of results.
Transport, warehousing
Under process, the PSA paper said, these danger signs were seen:
* The system of transporting and keeping the machines in safe warehouses is hazy. “Three small and widely unknown logistics companies” were given contracts.
* Ballot printing has been “drastically delayed.”
* “Critical contracts, instructions, plans and procedures have not been made public.”
Under people, the paper continued, these danger signs are too obvious to ignore:
* There has been no sufficient training for 230,000 teachers who would be tapped for election duty.
* A shortage of manpower hounds the process. Smartmatic, the firm that won the automation contract, needs 48,000 field technology specialists.
* “Comelec has failed to make major progress to cleanse the voters’ list.”
* Voters have not been sufficiently informed of new clustered precinct assignments.
Mechanism for protests
“There is no official record of any country in the world transitioning completely from a pure manual to full automated elections system in one electoral exercise so problems are inevitable,” said the PSA paper.
The paper added that there had been no effort to clarify how electoral protests, common after elections, would be handled under the automated system.
“In Philippine reality … losing candidates do not easily accept defeat so one can reasonably expect a large number of electoral protests,” it said. “These conditions open up opportunities for civil unrest and political instability.”
What makes the situation unpredictable, the paper added, was the absence of any categorical declaration of what Ms Arroyo planned to do when her term expires on June 30.
“Because Arroyo has already been implicated in election fraud, most believe Arroyo would be willing to exploit any perceived malfunction in the automated election to her advantage,” the paper said.
The scariest scenario
“The myriad questions … and President Arroyo’s failure to intercede and address the many election questions and concerns ... suggest to many that Arroyo wants imperfect, if not failed, elections to ensure her allies are perpetuated in power,” it said.
“The scariest scenario remains that the non-proclamation of a president, vice president and 12 senators to constitute a quorum of 24 will prevent the chain of succession in accordance with the 1987 Constitution,” it added.
“Recent public opinion polls suggest a majority of Filipinos believe another People Power revolt could follow any major elections failure despite widely acknowledged People Power fatigue among the general public,” it said. With a report from TJ Burgonio
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100416-264500/Election-failure-to-favor-Arroyo
Writ of Kalikasan
The new rule on the writ of kalikasan has been issued by the Philippine Supreme Court. It gives flesh to the power of the citizens to assert their rights to a better ecology. Read below the comprehensive news report on the matter as released by the Court (see: http://sc.judiciary.gov.ph).
SC Unveils Landmark Rules of Procedure for Environmental Cases
April 14, 2010
By Abigail T. Tze
The Supreme Court yesterday promulgated the Rules of Procedure for Environmental Cases which will serve as a significant catalyst in support of sweeping and far-reaching reforms in environmental litigation and protection. The Rules are the first of its kind in the world.
The promulgation of the Rules have been highly-anticipated by both the international and domestic community since the Supreme Court held its widely-commended Forum on Environmental Justice last April 16-17, 2009 simultaneously through video-conferencing at the University of the Cordilleras, Baguio City, University of the Philippines-Visayas, Iloilo City, and Ateneo de Davao University, Davao City. The Forum enabled the Judiciary to receive inputs directly from the different stakeholders in the justice system, primarily aimed at determining ways on how the courts can help in the protection and preservation of the environment. It was supported by various development partners which include the American Bar Association-Rule of Law Initiative (ABA-ROLI), the Hanns Seidel Foundation, the United Nations Development Program (UNDP), the United States Agency for International Development (USAID), the United States Department of the Interior, and the World Bank.
The 1987 Constitution mandates the right to a healthy environment via Sec. 16, Art. II of the Philippine Constitution which provides that: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” Section 15 of the same Article provides that: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”
Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, (3) environmental protection order, (4) writ of kalikasan, (5) writ of continuing mandamus, (6)strategic lawsuits against public participation (SLAPP) and (7) the precautionary principle.
The provision on citizen suits liberalizes standing for all cases filed enforcing environmental laws. Citizen suits have proven critical in forcing government and its agencies to act on its duty to protect and preserve the environment. The terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran (G.R. No. 101083, July 30, 1993). To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. As a procedural device, citizen suits permit deferred of payment of filing fees until after the judgment
The use of a consent decree is an innovative way to resolve environmental cases. It allows for a compromise agreement between two parties in environmental litigation over issues that would normally be litigated in court, and other matters that may not necessarily be of issue in court.
An environmental protection order refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. It integrates both prohibitive and mandatory reliefs in order to appropriately address the factual circumstances surrounding the case. This remedial measure can also be prayed for in the writs of kalikasan and continuing mandamus.
Similar to the writs of habeas corpus, amparo and habeas data, the issuance of the writ of kalikasan is immediate in nature. It contains a very specific set of remedies which may be availed of individually or cumulatively, to wit – it is available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. The petition for the issuance of a writ of kalikasan can be filed with the Supreme Court or with any of the stations of the Court of Appeals. Likewise, the summary process leading to the issuance of the writ of kalikasan dispenses with extensive litigation; this facilitates the prompt disposition of matters before the court.
Another innovation is the rule on the writ of continuing mandamus which integrates the ruling in Concerned Residents of Manila Bay v. MMDA G.R. Nos. 171947-48, December 8, 2008) and the existing rule on the issuance of the writ of mandamus. Procedurally, its filing before the courts is similar to the filing of an ordinary writ of mandamus. However, the issuance of a Temporary Environmental Protection Order is made available as an auxiliary remedy prior to the issuance of the writ itself.
As a special civil action, the writ of continuing Mandamus may be availed of to compel the performance of an act specifically enjoined by law. It permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the court's decision. For this purpose, the court may compel the submission of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its decision.
Its availability as a special civil action likewise complements its role as a final relief in environmental civil cases and in the writ of kalikasan, where continuing mandamus may likewise be issued should the facts merit such a relief.
Both petitions for the issuance of the writs of kalikasan and mandamus are exempt from the payment of docket fees.
Since formidable legal challenges may be mounted against those who seek to enforce environmental law, or to assert environmental rights, in light of this, the Rules make available a formidable defense in these by creating a rule on strategic lawsuit against public participation (SLAPP). . These legal challenges may be pre-emptive in character and may be done in order to “chill” the latter.
Another significant aspect of the Rules that derives from the transboundary and temporal nature of ecological injury is the adoption of the precautionary principle. In this context, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right the people to a balanced and healthful ecology.
Some important provisions on criminal procedure can also be found under the Rules.
The rule on bail makes available to the accused the privilege of bail from any court, within and outside the jurisdiction of the court which had issued the warrant of arrest. The immediate availability of bail is intended to obviate long periods of detention.
One important innovation under the rule on bail is the execution of an undertaking by the accused and counsel, empowering the judge to enter a plea of not guilty, in the event the accused fails to appear at the arraignment. This authorization permits the court to try the case in absentia, thereby addressing a fundamental concern surrounding the prosecution of criminal cases in general, where the accused jumps bail and the court unable to proceed with the disposition of the case in view of the absence of the accused and the failure to arraign the latter.
Several environmental advocates have lauded the Supreme Court for serving as the major bulwark for fundamental reforms in environmental protection:
Atty. Antonio Oposa, Jr.: “This is a new day for the life sources of land, air and water. Ordinary citizens like us are now empowered to take legal action where our political leaders will not. We thank the Supreme Court for this truly landmark achievement, the first of its kind in the world. It happened during Chief Justice Puno’s stewardship of the Supreme Court. We salute you, Chief Justice Puno, the entire Supreme Court, and everyone who played a role in the drafting of this milestone for the movement of citizens who care for our sources of life! You have made a great difference and will forever be remembered for this legacy. Mabuhay po kayo!”
Atty. Gloria Estenzo Ramos (Global Legal Action on Climate Change): “A new era of nurturing for our threatened natural support system has ushered in with the Supreme Court’s promulgation of the much awaited Rules on Environmental Cases. This will transform the legal profession and the practice of law in our country and instill a mindset of sustainability among stakeholders, especially the lawyers, government agencies and the corporate sector. Lawyers will become stewards of both the law and the environment. The wide gap existing between the law and reality will narrowed down as the trail-blazing remedies such as the writ of kalikasan, writ of continuing mandamus, citizen suit and anti-SLAPP, afforded to the people, ecological stewards and dedicated civil servants will render the violation or non-compliance of environmental laws a very expensive and tedious option. This legacy of Chief Justice Puno and the justices of the Supreme Court will be enshrined as one of the greatest gifts not just to Filipinos and the future generations of this biodiversity rich nation, but to our climate challenged planet as well. Mabuhay ang SC! Mabuhay si Chief Justice Puno!”
Atty. Roan Libarios (Integrated Bar of the Philippines, Governor): “A.M. No. 09-6-8 is a major breakthrough that will finally bridge the wide gap between Philippine environmental protection laws and their enforcement. Mother Nature will rejoice from the innovative legal weapons created and unleashed for its defense by the SC – the citizens’ right, EPO, writs of kalikasan and continuing mandamus. Truly, no other set of rules can match the potency of A.M. No. 09-6-8 in promoting ‘environmental accountability.’ With its potency, it will energize, if not transform the field of legal advocacy in environmental protection.”
The Sub-committee who finalized the Rules was chaired by Chief Justice Reynato S. Puno, its other members include Justice Presbitero J. Velasco, Jr., Justice Diosdado M. Peralta, Justice Lucas P. Bersmain, Justice Ma. Alicia Austria-Martinez (ret.), Commission on Climate Change Commissioner Mary Ann Lucille L. Sering, Judge Myrna Lim-Verano, and the U.S. Department of Interior’s in-country representative, Atty. Asis G. Perez.
The Rules will take effect within fifteen (15) days following its publication once in a newspaper of general circulation.
(SC En Banc Resolution dated 13 April 2010 in A.M. No. 09-6-8-SC).
SC Unveils Landmark Rules of Procedure for Environmental Cases
April 14, 2010
By Abigail T. Tze
The Supreme Court yesterday promulgated the Rules of Procedure for Environmental Cases which will serve as a significant catalyst in support of sweeping and far-reaching reforms in environmental litigation and protection. The Rules are the first of its kind in the world.
The promulgation of the Rules have been highly-anticipated by both the international and domestic community since the Supreme Court held its widely-commended Forum on Environmental Justice last April 16-17, 2009 simultaneously through video-conferencing at the University of the Cordilleras, Baguio City, University of the Philippines-Visayas, Iloilo City, and Ateneo de Davao University, Davao City. The Forum enabled the Judiciary to receive inputs directly from the different stakeholders in the justice system, primarily aimed at determining ways on how the courts can help in the protection and preservation of the environment. It was supported by various development partners which include the American Bar Association-Rule of Law Initiative (ABA-ROLI), the Hanns Seidel Foundation, the United Nations Development Program (UNDP), the United States Agency for International Development (USAID), the United States Department of the Interior, and the World Bank.
The 1987 Constitution mandates the right to a healthy environment via Sec. 16, Art. II of the Philippine Constitution which provides that: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” Section 15 of the same Article provides that: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”
Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, (3) environmental protection order, (4) writ of kalikasan, (5) writ of continuing mandamus, (6)strategic lawsuits against public participation (SLAPP) and (7) the precautionary principle.
The provision on citizen suits liberalizes standing for all cases filed enforcing environmental laws. Citizen suits have proven critical in forcing government and its agencies to act on its duty to protect and preserve the environment. The terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran (G.R. No. 101083, July 30, 1993). To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. As a procedural device, citizen suits permit deferred of payment of filing fees until after the judgment
The use of a consent decree is an innovative way to resolve environmental cases. It allows for a compromise agreement between two parties in environmental litigation over issues that would normally be litigated in court, and other matters that may not necessarily be of issue in court.
An environmental protection order refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. It integrates both prohibitive and mandatory reliefs in order to appropriately address the factual circumstances surrounding the case. This remedial measure can also be prayed for in the writs of kalikasan and continuing mandamus.
Similar to the writs of habeas corpus, amparo and habeas data, the issuance of the writ of kalikasan is immediate in nature. It contains a very specific set of remedies which may be availed of individually or cumulatively, to wit – it is available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. The petition for the issuance of a writ of kalikasan can be filed with the Supreme Court or with any of the stations of the Court of Appeals. Likewise, the summary process leading to the issuance of the writ of kalikasan dispenses with extensive litigation; this facilitates the prompt disposition of matters before the court.
Another innovation is the rule on the writ of continuing mandamus which integrates the ruling in Concerned Residents of Manila Bay v. MMDA G.R. Nos. 171947-48, December 8, 2008) and the existing rule on the issuance of the writ of mandamus. Procedurally, its filing before the courts is similar to the filing of an ordinary writ of mandamus. However, the issuance of a Temporary Environmental Protection Order is made available as an auxiliary remedy prior to the issuance of the writ itself.
As a special civil action, the writ of continuing Mandamus may be availed of to compel the performance of an act specifically enjoined by law. It permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the court's decision. For this purpose, the court may compel the submission of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its decision.
Its availability as a special civil action likewise complements its role as a final relief in environmental civil cases and in the writ of kalikasan, where continuing mandamus may likewise be issued should the facts merit such a relief.
Both petitions for the issuance of the writs of kalikasan and mandamus are exempt from the payment of docket fees.
Since formidable legal challenges may be mounted against those who seek to enforce environmental law, or to assert environmental rights, in light of this, the Rules make available a formidable defense in these by creating a rule on strategic lawsuit against public participation (SLAPP). . These legal challenges may be pre-emptive in character and may be done in order to “chill” the latter.
Another significant aspect of the Rules that derives from the transboundary and temporal nature of ecological injury is the adoption of the precautionary principle. In this context, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right the people to a balanced and healthful ecology.
Some important provisions on criminal procedure can also be found under the Rules.
The rule on bail makes available to the accused the privilege of bail from any court, within and outside the jurisdiction of the court which had issued the warrant of arrest. The immediate availability of bail is intended to obviate long periods of detention.
One important innovation under the rule on bail is the execution of an undertaking by the accused and counsel, empowering the judge to enter a plea of not guilty, in the event the accused fails to appear at the arraignment. This authorization permits the court to try the case in absentia, thereby addressing a fundamental concern surrounding the prosecution of criminal cases in general, where the accused jumps bail and the court unable to proceed with the disposition of the case in view of the absence of the accused and the failure to arraign the latter.
Several environmental advocates have lauded the Supreme Court for serving as the major bulwark for fundamental reforms in environmental protection:
Atty. Antonio Oposa, Jr.: “This is a new day for the life sources of land, air and water. Ordinary citizens like us are now empowered to take legal action where our political leaders will not. We thank the Supreme Court for this truly landmark achievement, the first of its kind in the world. It happened during Chief Justice Puno’s stewardship of the Supreme Court. We salute you, Chief Justice Puno, the entire Supreme Court, and everyone who played a role in the drafting of this milestone for the movement of citizens who care for our sources of life! You have made a great difference and will forever be remembered for this legacy. Mabuhay po kayo!”
Atty. Gloria Estenzo Ramos (Global Legal Action on Climate Change): “A new era of nurturing for our threatened natural support system has ushered in with the Supreme Court’s promulgation of the much awaited Rules on Environmental Cases. This will transform the legal profession and the practice of law in our country and instill a mindset of sustainability among stakeholders, especially the lawyers, government agencies and the corporate sector. Lawyers will become stewards of both the law and the environment. The wide gap existing between the law and reality will narrowed down as the trail-blazing remedies such as the writ of kalikasan, writ of continuing mandamus, citizen suit and anti-SLAPP, afforded to the people, ecological stewards and dedicated civil servants will render the violation or non-compliance of environmental laws a very expensive and tedious option. This legacy of Chief Justice Puno and the justices of the Supreme Court will be enshrined as one of the greatest gifts not just to Filipinos and the future generations of this biodiversity rich nation, but to our climate challenged planet as well. Mabuhay ang SC! Mabuhay si Chief Justice Puno!”
Atty. Roan Libarios (Integrated Bar of the Philippines, Governor): “A.M. No. 09-6-8 is a major breakthrough that will finally bridge the wide gap between Philippine environmental protection laws and their enforcement. Mother Nature will rejoice from the innovative legal weapons created and unleashed for its defense by the SC – the citizens’ right, EPO, writs of kalikasan and continuing mandamus. Truly, no other set of rules can match the potency of A.M. No. 09-6-8 in promoting ‘environmental accountability.’ With its potency, it will energize, if not transform the field of legal advocacy in environmental protection.”
The Sub-committee who finalized the Rules was chaired by Chief Justice Reynato S. Puno, its other members include Justice Presbitero J. Velasco, Jr., Justice Diosdado M. Peralta, Justice Lucas P. Bersmain, Justice Ma. Alicia Austria-Martinez (ret.), Commission on Climate Change Commissioner Mary Ann Lucille L. Sering, Judge Myrna Lim-Verano, and the U.S. Department of Interior’s in-country representative, Atty. Asis G. Perez.
The Rules will take effect within fifteen (15) days following its publication once in a newspaper of general circulation.
(SC En Banc Resolution dated 13 April 2010 in A.M. No. 09-6-8-SC).
Thursday, April 15, 2010
Las Pinas city lawyers elect new officers
Las Pinas City Bar Association (LPBA), Inc.
Officers for the Term 2010-2011 elected on April 14, 2010:
Chairperson – Purita FAJILAN (past pres.)
Vice Chairperson – Cora FIGUERRES
President – Rolito ABING
Vice President – Jose CARINGAL
Treasurer – Miguel SORIANO
Secretary – Felix SAYAGO
Auditor – Frank NAPUTO
PRO – Jose DE LEON
Directors:
Myrna MERCADER (past chairperson/president)
Melvyn LAGASCA (past chairman/president)
Hilda CLAVE (past president)
Richard FUNK (past chairman/president)
Antonio MANZANO (past chairman)
Artemio AMON
Irsang Roy HANDANG
To contact LPBA:
Chairperson Purita FAJILAN – 8022368; 09189287301; 09228183694.
Pres. Rolito ABING – 8752909 (office); 8742089 (home); 09177914445.
Please circulate to all Las Pinas City lawyers and to lawyers from other parts of the country who wish to join the LPBA.
Join our eGroup: http://groups.yahoo.com/group/lpba_phil. Visit our website: http://laspinasbar.multiply.com.
Thank you.
Manuel J. Laserna Jr.
Founder (2001)
Adviser
Past Chairman/President
Visit: http://attylaserna.blogspot.com
Officers for the Term 2010-2011 elected on April 14, 2010:
Chairperson – Purita FAJILAN (past pres.)
Vice Chairperson – Cora FIGUERRES
President – Rolito ABING
Vice President – Jose CARINGAL
Treasurer – Miguel SORIANO
Secretary – Felix SAYAGO
Auditor – Frank NAPUTO
PRO – Jose DE LEON
Directors:
Myrna MERCADER (past chairperson/president)
Melvyn LAGASCA (past chairman/president)
Hilda CLAVE (past president)
Richard FUNK (past chairman/president)
Antonio MANZANO (past chairman)
Artemio AMON
Irsang Roy HANDANG
To contact LPBA:
Chairperson Purita FAJILAN – 8022368; 09189287301; 09228183694.
Pres. Rolito ABING – 8752909 (office); 8742089 (home); 09177914445.
Please circulate to all Las Pinas City lawyers and to lawyers from other parts of the country who wish to join the LPBA.
Join our eGroup: http://groups.yahoo.com/group/lpba_phil. Visit our website: http://laspinasbar.multiply.com.
Thank you.
Manuel J. Laserna Jr.
Founder (2001)
Adviser
Past Chairman/President
Visit: http://attylaserna.blogspot.com
Monday, April 12, 2010
Proximate cause vs. contributory negligence.
In the tort-related case of LAMBERT S. RAMOS vs. C.O.L. REALTY CORPORATION, G.R. No. 184905, August 28, 2009, the issue for resolution by the Philippine Supreme Court was whether petitioner could be held solidarily liable with his driver, Rodel Ilustrisimo, to pay respondent C.O.L. Realty the amount of P51,994.80 as actual damages suffered in a vehicular collision. It declared the following doctrines on proximate cause and contributory negligence, thus:
1. Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in this case, viz:
Article 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.
Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.
2. If the master is injured by the negligence of a third person and by the concurring contributory negligence of his own servant or agent, the latter’s negligence is imputed to his superior and will defeat the superior’s action against the third person, assuming of course that the contributory negligence was the proximate cause of the injury of which complaint is made.
3. Applying the foregoing principles of law to the instant case, Aquilino’s act of crossing Katipunan Avenue via Rajah Matanda constitutes negligence because it was prohibited by law. Moreover, it was the proximate cause of the accident, and thus precludes any recovery for any damages suffered by respondent from the accident.
4. Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.
5. If Aquilino heeded the MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda, the accident would not have happened. This specific untoward event is exactly what the MMDA prohibition was intended for. Thus, a prudent and intelligent person who resides within the vicinity where the accident occurred, Aquilino had reasonable ground to expect that the accident would be a natural and probable result if he crossed Katipunan Avenue since such crossing is considered dangerous on account of the busy nature of the thoroughfare and the ongoing construction of the Katipunan-Boni Avenue underpass. It was manifest error for the Court of Appeals to have overlooked the principle embodied in Article 2179 of the Civil Code, that when the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages.
6. Hence, we find it unnecessary to delve into the issue of Rodel’s contributory negligence, since it cannot overcome or defeat Aquilino’s recklessness which is the immediate and proximate cause of the accident. Rodel’s contributory negligence has relevance only in the event that Ramos seeks to recover from respondent whatever damages or injuries he may have suffered as a result; it will have the effect of mitigating the award of damages in his favor. In other words, an assertion of contributory negligence in this case would benefit only the petitioner; it could not eliminate respondent’s liability for Aquilino’s negligence which is the proximate result of the accident.
1. Articles 2179 and 2185 of the Civil Code on quasi-delicts apply in this case, viz:
Article 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.
Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.
2. If the master is injured by the negligence of a third person and by the concurring contributory negligence of his own servant or agent, the latter’s negligence is imputed to his superior and will defeat the superior’s action against the third person, assuming of course that the contributory negligence was the proximate cause of the injury of which complaint is made.
3. Applying the foregoing principles of law to the instant case, Aquilino’s act of crossing Katipunan Avenue via Rajah Matanda constitutes negligence because it was prohibited by law. Moreover, it was the proximate cause of the accident, and thus precludes any recovery for any damages suffered by respondent from the accident.
4. Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.
5. If Aquilino heeded the MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda, the accident would not have happened. This specific untoward event is exactly what the MMDA prohibition was intended for. Thus, a prudent and intelligent person who resides within the vicinity where the accident occurred, Aquilino had reasonable ground to expect that the accident would be a natural and probable result if he crossed Katipunan Avenue since such crossing is considered dangerous on account of the busy nature of the thoroughfare and the ongoing construction of the Katipunan-Boni Avenue underpass. It was manifest error for the Court of Appeals to have overlooked the principle embodied in Article 2179 of the Civil Code, that when the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages.
6. Hence, we find it unnecessary to delve into the issue of Rodel’s contributory negligence, since it cannot overcome or defeat Aquilino’s recklessness which is the immediate and proximate cause of the accident. Rodel’s contributory negligence has relevance only in the event that Ramos seeks to recover from respondent whatever damages or injuries he may have suffered as a result; it will have the effect of mitigating the award of damages in his favor. In other words, an assertion of contributory negligence in this case would benefit only the petitioner; it could not eliminate respondent’s liability for Aquilino’s negligence which is the proximate result of the accident.
Undue delay
In the case entitled “REQUEST OF JUDGE NIÑO A. BATINGANA, REGIONAL TRIAL COURT, BRANCH 6, MATI, DAVAO ORIENTAL FOR EXTENSION OF TIME TO DECIDE CRIMINAL CASE NO. 4745-05. A.M. No. 08-2-107-RTC”, decided by the Philippine Supreme Court on February 1, 2010, Judge Niño A. Batingana, Presiding Judge of the Regional Trial Court, Branch 6, Mati City, Davao Oriental, was found administratively liable under Section 9 (1), Rule 140 of the Rules of Court for undue delay in rendering a decision for which he was FINED in the amount of Eleven Thousand Pesos (P11,000.00), with a stern warning that a repetition of the same or similar acts would be dealt with more severely, thus:
1. Section 15 (1), Article VIII of the Constitution provides that all lower courts must decide or resolve all cases or matters filed within three months. Moreover, Rule 3.05 of the Code of Judicial Conduct states that a judge shall dispose of the court’s business promptly and decide the cases within the required periods.
2. The Court granted Judge Batingana an extension of 90 days, or until February 11, 2008, to decide Criminal Case No. 4745-05. However, he decided the case only on July 8, 2009, or after one year and almost five months from the extension granted.
3. As oft stated, justice delayed is justice denied. The honor and integrity of the judiciary is measured not only by the fairness and correctness of the decisions rendered, but also by the efficiency with which disputes are resolved. Judges are therefore mandated to perform their duties with utmost diligence in order to preserve the confidence of the public in the judiciary.
4. Under Section 9, Rule 140 of the Rules of Court, undue delay in rendering a decision or order is classified as a less serious charge punishable with suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or a fine of more than P10,000.00 but not exceeding P20,000.00.
1. Section 15 (1), Article VIII of the Constitution provides that all lower courts must decide or resolve all cases or matters filed within three months. Moreover, Rule 3.05 of the Code of Judicial Conduct states that a judge shall dispose of the court’s business promptly and decide the cases within the required periods.
2. The Court granted Judge Batingana an extension of 90 days, or until February 11, 2008, to decide Criminal Case No. 4745-05. However, he decided the case only on July 8, 2009, or after one year and almost five months from the extension granted.
3. As oft stated, justice delayed is justice denied. The honor and integrity of the judiciary is measured not only by the fairness and correctness of the decisions rendered, but also by the efficiency with which disputes are resolved. Judges are therefore mandated to perform their duties with utmost diligence in order to preserve the confidence of the public in the judiciary.
4. Under Section 9, Rule 140 of the Rules of Court, undue delay in rendering a decision or order is classified as a less serious charge punishable with suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or a fine of more than P10,000.00 but not exceeding P20,000.00.
Postconviction habeas corpus
In the per curiam decision of the US Supreme Court in the recent case of E. K. McDANIEL, WARDEN, et al., PETITIONERS v. TROY BROWN, dated January 11, 2010, acting on writ of certiorari to the US Court of Appeals for the 9th Circuit (see: http://laws.findlaw.com/us/000/08-559.html), the following doctrinal pronouncements in re: a prisoner-initiated habeas corpus petition were made, including a discussion on the admissibility and the interpretation of post-conviction DNA evidence, thus:
1. In Jackson v. Virginia, 443 U. S. 307 (1979), we held that a state prisoner is entitled to habeas corpus relief if a federal judge finds that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent's DNA profile. Nevertheless, relying upon a report prepared by a DNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and granted the writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorari to consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude that they clearly did.
2. The “prosecutor's fallacy” is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. See Nat. Research Council, Comm. on DNA Forensic Science, The Evaluation of Forensic DNA Evidence 133 (1996) ("Let P equal the probability of a match, given the evidence genotype. The fallacy is to say that P is also the probability that the DNA at the crime scene came from someone other than the defendant"). In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor's fallacy. It is further error to equate source probability with probability of guilt, unless there is no explanation other than guilt for a person to be the source of crime-scene DNA. This faulty reasoning may result in an erroneous statement that, based on a random match probability of 1 in 10,000, there is a .01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.
3. Respondent therefore correctly concedes that a reviewing court must consider all of the evidence admitted at trial when considering a Jackson claim. Even if we set that concession aside, however, and assume that the Court of Appeals could have considered the Mueller Report in the context of a Jackson claim, the court made an egregious error in concluding the Nevada Supreme Court's rejection of respondent's insufficiency-of-the-evidence claim "involved an unreasonable application of ... clearly established Federal law," 28 U. S. C. §2254(d)(1).4
4. Even if the Court of Appeals could have considered it, the Mueller Report provided no warrant for entirely excluding the DNA evidence or Romero's testimony from that court's consideration. The Report did not contest that the DNA evidence matched Troy. That DNA evidence remains powerful inculpatory evidence even though the State concedes Romero overstated its probative value by failing to dispel the prosecutor's fallacy. And Mueller's claim that Romero used faulty assumptions and underestimated the probability of a DNA match between brothers indicates that two experts do not agree with one another, not that Romero's estimates were unreliable.5
5. Furthermore, the Court of Appeals' discussion of the non-DNA evidence departed from the deferential review that Jackson and §2254(d)(1) demand. A federal habeas court can only set aside a state-court decision as "an unreasonable application of ... clearly established Federal law," §2254(d)(1), if the state court's application of that law is "objectively unreasonable," Williams v. Taylor, 529 U. S. 362, 409 (2000). And Jackson requires a reviewing court to review the evidence "in the light most favorable to the prosecution." 443 U. S., at 319. Expressed more fully, this means a reviewing court "faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id., at 326; see also Schlup v. Delo, 513 U. S. 298, 330 (1995) ("The Jackson standard ... looks to whether there is sufficient evidence which, if credited, could support the conviction"). The Court of Appeals acknowledged that it must review the evidence in the light most favorable to the prosecution, but the court's recitation of inconsistencies in the testimony shows it failed to do that.
6. As respondent acknowledges, in order to prevail on this claim, he would have to show that the state court's adjudication of the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U. S. C. §2254(d)(1). The clearly established law he points us to is Manson v. Brathwaite, 432 U. S. 98, 114 (1977), in which we held that when the police have used a suggestive eyewitness identification procedure, "reliability is the linchpin in determining" whether an eyewitness identification may be admissible, with reliability determined according to factors set out in Neil v. Biggers, 409 U. S. 188 (1972). Respondent argues that the admission of the inaccurate DNA testimony violated Brathwaite because the testimony was "identification testimony," 432 U. S., at 114, was "unnecessarily suggestive," id., at 113, and was unreliable.
7. We have stated before that "DNA testing can provide powerful new evidence unlike anything known before." District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U. S. ___, ___ (2009) (slip op., at 8). Given the persuasiveness of such evidence in the eyes of the jury, it is important that it be presented in a fair and reliable manner. The State acknowledges that Romero committed the prosecutor's fallacy, Brief for Petitioners 54, and the Mueller Report suggests that Romero's testimony may have been inaccurate regarding the likelihood of a match with one of respondent's brothers. Regardless, ample DNA and non-DNA evidence in the record adduced at trial supported the jury's guilty verdict under Jackson, and we reject respondent's last minute attempt to recast his claim under Brathwaite. The Court of Appeals did not consider, however, the ineffective-assistance claims on which the District Court also granted respondent habeas relief. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
1. In Jackson v. Virginia, 443 U. S. 307 (1979), we held that a state prisoner is entitled to habeas corpus relief if a federal judge finds that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent's DNA profile. Nevertheless, relying upon a report prepared by a DNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and granted the writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorari to consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude that they clearly did.
2. The “prosecutor's fallacy” is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. See Nat. Research Council, Comm. on DNA Forensic Science, The Evaluation of Forensic DNA Evidence 133 (1996) ("Let P equal the probability of a match, given the evidence genotype. The fallacy is to say that P is also the probability that the DNA at the crime scene came from someone other than the defendant"). In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor's fallacy. It is further error to equate source probability with probability of guilt, unless there is no explanation other than guilt for a person to be the source of crime-scene DNA. This faulty reasoning may result in an erroneous statement that, based on a random match probability of 1 in 10,000, there is a .01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.
3. Respondent therefore correctly concedes that a reviewing court must consider all of the evidence admitted at trial when considering a Jackson claim. Even if we set that concession aside, however, and assume that the Court of Appeals could have considered the Mueller Report in the context of a Jackson claim, the court made an egregious error in concluding the Nevada Supreme Court's rejection of respondent's insufficiency-of-the-evidence claim "involved an unreasonable application of ... clearly established Federal law," 28 U. S. C. §2254(d)(1).4
4. Even if the Court of Appeals could have considered it, the Mueller Report provided no warrant for entirely excluding the DNA evidence or Romero's testimony from that court's consideration. The Report did not contest that the DNA evidence matched Troy. That DNA evidence remains powerful inculpatory evidence even though the State concedes Romero overstated its probative value by failing to dispel the prosecutor's fallacy. And Mueller's claim that Romero used faulty assumptions and underestimated the probability of a DNA match between brothers indicates that two experts do not agree with one another, not that Romero's estimates were unreliable.5
5. Furthermore, the Court of Appeals' discussion of the non-DNA evidence departed from the deferential review that Jackson and §2254(d)(1) demand. A federal habeas court can only set aside a state-court decision as "an unreasonable application of ... clearly established Federal law," §2254(d)(1), if the state court's application of that law is "objectively unreasonable," Williams v. Taylor, 529 U. S. 362, 409 (2000). And Jackson requires a reviewing court to review the evidence "in the light most favorable to the prosecution." 443 U. S., at 319. Expressed more fully, this means a reviewing court "faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id., at 326; see also Schlup v. Delo, 513 U. S. 298, 330 (1995) ("The Jackson standard ... looks to whether there is sufficient evidence which, if credited, could support the conviction"). The Court of Appeals acknowledged that it must review the evidence in the light most favorable to the prosecution, but the court's recitation of inconsistencies in the testimony shows it failed to do that.
6. As respondent acknowledges, in order to prevail on this claim, he would have to show that the state court's adjudication of the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U. S. C. §2254(d)(1). The clearly established law he points us to is Manson v. Brathwaite, 432 U. S. 98, 114 (1977), in which we held that when the police have used a suggestive eyewitness identification procedure, "reliability is the linchpin in determining" whether an eyewitness identification may be admissible, with reliability determined according to factors set out in Neil v. Biggers, 409 U. S. 188 (1972). Respondent argues that the admission of the inaccurate DNA testimony violated Brathwaite because the testimony was "identification testimony," 432 U. S., at 114, was "unnecessarily suggestive," id., at 113, and was unreliable.
7. We have stated before that "DNA testing can provide powerful new evidence unlike anything known before." District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U. S. ___, ___ (2009) (slip op., at 8). Given the persuasiveness of such evidence in the eyes of the jury, it is important that it be presented in a fair and reliable manner. The State acknowledges that Romero committed the prosecutor's fallacy, Brief for Petitioners 54, and the Mueller Report suggests that Romero's testimony may have been inaccurate regarding the likelihood of a match with one of respondent's brothers. Regardless, ample DNA and non-DNA evidence in the record adduced at trial supported the jury's guilty verdict under Jackson, and we reject respondent's last minute attempt to recast his claim under Brathwaite. The Court of Appeals did not consider, however, the ineffective-assistance claims on which the District Court also granted respondent habeas relief. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
AWOL by judicial employees
In the case of RE: DROPPING FROM THE ROLLS of MS. GINA P. FUENTES, Court Stenographer I, Municipal Circuit Trial Court, Mabini, Compostela Valley, A.M. No. 09-3-50 MCTC, October 9, 2009, the Philippine Supreme Court clarified the rule on absence without leave (AWOL) of judicial employees, thus:
1. Section 63, Rule XVI of the Omnibus Rules on Leave, as amended by Memorandum Circular 13, series of 2007, is quoted by the OCA as follows:
Effect of absences without approved leave. – An official or an employee who is continuously absent without approved leave for at least thirty (30) working days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice. However, when it is clear under the obtaining circumstances that the official or employee concerned has established a scheme to circumvent the rule by incurring substantial absences though less than thirty (30) working days three times in a semester, such that a pattern is already apparent, dropping from the rolls without notice may likewise be justified.
If the number of unauthorized absences incurred is less than thirty (30) working days, a written Return-to-Work Order shall be served to him at his last known address on record. Failure on his part to report for work within the period stated in the Order shall be a valid ground to drop him from the rolls. (Emphasis and underscoring supplied)
2. Gina’s applications for leave from March 1, 2007 up to March 31, 2007 and from May 1, 2007 up to July 31, 2007 inclusive were disapproved and considered unauthorized, as reflected above. A court employee’s absence without leave for a prolonged period of time disrupts the normal functions of the court; constitutes conduct prejudicial to the best interest of public service; contravenes a public servant’s duty to serve the public with the utmost degree of responsibility, integrity, loyalty, and efficiency; and manifests disrespect for one’s superiors and colleagues, in particular, and for the service and the public at large, in general. Gina must thus be dropped from the rolls.
1. Section 63, Rule XVI of the Omnibus Rules on Leave, as amended by Memorandum Circular 13, series of 2007, is quoted by the OCA as follows:
Effect of absences without approved leave. – An official or an employee who is continuously absent without approved leave for at least thirty (30) working days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice. However, when it is clear under the obtaining circumstances that the official or employee concerned has established a scheme to circumvent the rule by incurring substantial absences though less than thirty (30) working days three times in a semester, such that a pattern is already apparent, dropping from the rolls without notice may likewise be justified.
If the number of unauthorized absences incurred is less than thirty (30) working days, a written Return-to-Work Order shall be served to him at his last known address on record. Failure on his part to report for work within the period stated in the Order shall be a valid ground to drop him from the rolls. (Emphasis and underscoring supplied)
2. Gina’s applications for leave from March 1, 2007 up to March 31, 2007 and from May 1, 2007 up to July 31, 2007 inclusive were disapproved and considered unauthorized, as reflected above. A court employee’s absence without leave for a prolonged period of time disrupts the normal functions of the court; constitutes conduct prejudicial to the best interest of public service; contravenes a public servant’s duty to serve the public with the utmost degree of responsibility, integrity, loyalty, and efficiency; and manifests disrespect for one’s superiors and colleagues, in particular, and for the service and the public at large, in general. Gina must thus be dropped from the rolls.
Lawyer's neglect
The case of CESAR TALENTO and MODESTA HERRERA TALENTO vs. ATTY. AGUSTIN F. PANEDA, A.C. No. 7433 [Formerly CBD Case No. 05-1554], December 23, 2009 was an administrative case filed by mother and son Modesta Herrera Talento and Cesar Talento charging Atty. Agustin F. Paneda of violation of his oath as a lawyer and neglect of duty.
In the said case the Philippine Supreme Court found the respondent Atty. Agustin F. Paneda GUILTY of violating Canons 17 and 18 as well as Rules 18.02 and 18.03 of the Code of Professional Responsibility.
The Court suspended the respondent from the practice of law for ONE (1) YEAR effective upon finality of the decision.
Below are the main doctrinal pronouncements of the Court, for legal research purposes of the visitors of this blog:
1. The only issue to be resolved in this case is whether or not respondent committed gross negligence or misconduct in handling petitioners’ case both on trial in the RTC and on appeal in the CA which led to its dismissal without affording petitioners the opportunity to present their evidence.
After a careful consideration of the records of the instant case, this Court agrees with the IBP in its findings and conclusion that respondent’s documented acts fall extremely short of the standard of professional duty that all lawyers are required to faithfully adhere to.
The pertinent Canons of the Code of Professional Responsibility provide:
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
x x x x x
Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
2. There is no doubt that respondent was woefully remiss in his duty to display utmost diligence and competence in protecting the interests of his clients. The records of this case clearly detailed dire instances of professional neglect which undoubtedly showed respondent’s failure to live up to his duties and responsibilities as a member of the legal profession. Petitioners lost Civil Case No. A-2043 in the RTC mainly because they were barred from presenting their evidence in court. This was a result of their being declared in default in the said case as a consequence of respondent’s failure to appear at the pre-trial conference. Respondent defended his non-appearance by stating that he had informed petitioners beforehand of a conflict of schedule and that he had instructed them on what to do in his absence, but petitioners vehemently denied this claim.
3. Even if we are to give credence to respondent’s justification, this does not excuse him from the fact that he was unable to file a Pre-trial Brief at least three (3) days prior to the scheduled pre-trial conference, as required by the Rules. Respondent alleges that he already prepared the Pre-trial Brief but did not push through with filing it because he was allegedly furnished by petitioner Modesta Herrera Talento with an Amicable Settlement that was forged between the parties before the Barangay Lupon of San Pedro, Agoo, La Union. He claims that he instructed his clients to present said document during the pre-trial conference as he had another hearing to attend. However, respondent’s excuse is untenable as any lawyer worth his salt would readily know that once a case has been filed in court, any amicable settlement between the parties must be approved by the court in order for it to be legally binding in accordance with Section 416 of the Local Government Code of 1991 in relation to the last paragraph of Section 408 of the same Code. Thus, he cannot assume that the case will be deemed closed by virtue of the supposed amicable settlement so as to excuse him from filing the Pre-trial Brief and from appearing at the pre-trial set by the court.
4. With regard to his subsequent error of failing to file the required Appeal Brief which led to the dismissal of his clients’ appeal before the CA, respondent did not give any plausible explanation other than merely placing the blame on the incompetence of his secretary in not promptly informing him about her receipt of the Notice of Submission of Appellants’ Brief. This mistake by respondent is exacerbated by the fact that he did not care to inform his clients of the dismissal of their appeal in 2002 and it was only in 2005 that his clients learned about this unfortunate turn of events.
5. It is beyond dispute that respondent is duty-bound by his oath as a lawyer to diligently prosecute the case of his clients to the best of his ability within the bounds of law. Regrettably, the facts of this case illustrate respondent’s dismal performance of that responsibility, which in its totality could amount to a reprehensible abandonment of his clients’ cause.
6. A lawyer, when he undertakes his client’s cause, makes a covenant that he will exert all efforts for its prosecution until its final conclusion. He should undertake the task with dedication and care, and he should do no less, otherwise, he is not true to his lawyer’s oath.
As held in the case of Vda. De Enriquez v. San Jose:
The Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.
In Balatbat v. Arias, the Court also held that:
It must be stressed that public interest requires that an attorney exert his best efforts in the prosecution or defense of a client’s cause. A lawyer who performs that duty with diligence and candor not only protects the interests of his client, he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being hurled at the legal profession, strict compliance with one’s oath of office and the canons of professional ethics is an imperative.
In the said case the Philippine Supreme Court found the respondent Atty. Agustin F. Paneda GUILTY of violating Canons 17 and 18 as well as Rules 18.02 and 18.03 of the Code of Professional Responsibility.
The Court suspended the respondent from the practice of law for ONE (1) YEAR effective upon finality of the decision.
Below are the main doctrinal pronouncements of the Court, for legal research purposes of the visitors of this blog:
1. The only issue to be resolved in this case is whether or not respondent committed gross negligence or misconduct in handling petitioners’ case both on trial in the RTC and on appeal in the CA which led to its dismissal without affording petitioners the opportunity to present their evidence.
After a careful consideration of the records of the instant case, this Court agrees with the IBP in its findings and conclusion that respondent’s documented acts fall extremely short of the standard of professional duty that all lawyers are required to faithfully adhere to.
The pertinent Canons of the Code of Professional Responsibility provide:
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
x x x x x
Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
2. There is no doubt that respondent was woefully remiss in his duty to display utmost diligence and competence in protecting the interests of his clients. The records of this case clearly detailed dire instances of professional neglect which undoubtedly showed respondent’s failure to live up to his duties and responsibilities as a member of the legal profession. Petitioners lost Civil Case No. A-2043 in the RTC mainly because they were barred from presenting their evidence in court. This was a result of their being declared in default in the said case as a consequence of respondent’s failure to appear at the pre-trial conference. Respondent defended his non-appearance by stating that he had informed petitioners beforehand of a conflict of schedule and that he had instructed them on what to do in his absence, but petitioners vehemently denied this claim.
3. Even if we are to give credence to respondent’s justification, this does not excuse him from the fact that he was unable to file a Pre-trial Brief at least three (3) days prior to the scheduled pre-trial conference, as required by the Rules. Respondent alleges that he already prepared the Pre-trial Brief but did not push through with filing it because he was allegedly furnished by petitioner Modesta Herrera Talento with an Amicable Settlement that was forged between the parties before the Barangay Lupon of San Pedro, Agoo, La Union. He claims that he instructed his clients to present said document during the pre-trial conference as he had another hearing to attend. However, respondent’s excuse is untenable as any lawyer worth his salt would readily know that once a case has been filed in court, any amicable settlement between the parties must be approved by the court in order for it to be legally binding in accordance with Section 416 of the Local Government Code of 1991 in relation to the last paragraph of Section 408 of the same Code. Thus, he cannot assume that the case will be deemed closed by virtue of the supposed amicable settlement so as to excuse him from filing the Pre-trial Brief and from appearing at the pre-trial set by the court.
4. With regard to his subsequent error of failing to file the required Appeal Brief which led to the dismissal of his clients’ appeal before the CA, respondent did not give any plausible explanation other than merely placing the blame on the incompetence of his secretary in not promptly informing him about her receipt of the Notice of Submission of Appellants’ Brief. This mistake by respondent is exacerbated by the fact that he did not care to inform his clients of the dismissal of their appeal in 2002 and it was only in 2005 that his clients learned about this unfortunate turn of events.
5. It is beyond dispute that respondent is duty-bound by his oath as a lawyer to diligently prosecute the case of his clients to the best of his ability within the bounds of law. Regrettably, the facts of this case illustrate respondent’s dismal performance of that responsibility, which in its totality could amount to a reprehensible abandonment of his clients’ cause.
6. A lawyer, when he undertakes his client’s cause, makes a covenant that he will exert all efforts for its prosecution until its final conclusion. He should undertake the task with dedication and care, and he should do no less, otherwise, he is not true to his lawyer’s oath.
As held in the case of Vda. De Enriquez v. San Jose:
The Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.
In Balatbat v. Arias, the Court also held that:
It must be stressed that public interest requires that an attorney exert his best efforts in the prosecution or defense of a client’s cause. A lawyer who performs that duty with diligence and candor not only protects the interests of his client, he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being hurled at the legal profession, strict compliance with one’s oath of office and the canons of professional ethics is an imperative.
Lawyer's deceit
Because of its importance to the Bar, I wish to reiterate the doctrines pronounced by the Philippine Supreme Court in the case of ROLANDO B. PACANA, JR. vs. ATTY. MARICEL PASCUAL-LOPEZ, A.C. No. 8243 , July 24, 2009, which involved the ethical issues of conflict of interest, deceit and dishonesty on the part of a lawyer and wherein the Court DISBARRED the respondent Atty. Maricel Pascual-Lopez for such offenses, thus:
1. Rule 15.03, Canon 15 of the Code of Professional responsibility provides:
Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts.
This prohibition is founded on principles of public policy, good taste and, more importantly, upon necessity. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points. Such knowledge must be considered sacred and guarded with care. No opportunity must be given to him to take advantage of his client; for if the confidence is abused, the profession will suffer by the loss thereof. It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double ─ dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is paramount in the administration of justice. It is for these reasons that we have described the attorney-client relationship as one of trust and confidence of the highest degree.
2. Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of “friendly accommodations,” precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC.
3. Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant. This argument all the more reveals respondent’s patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said:
The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. (Emphasis supplied.)
4. Given the situation, the most decent and ethical thing which respondent should have done was either to advise complainant to engage the services of another lawyer since she was already representing the opposing parties, or to desist from acting as representative of Multitel investors and stand as counsel for complainant. She cannot be permitted to do both because that would amount to double-dealing and violate our ethical rules on conflict of interest.
5. In Hornilla v. Atty. Salunat, 453 Phil. 108 (2003), we explained the concept of conflict of interest, thus:
There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.
6. Indubitably, respondent took advantage of complainant’s hapless situation, initially, by giving him legal advice and, later on, by soliciting money and properties from him. Thereafter, respondent impressed upon complainant that she had acted with utmost sincerity in helping him divest all the properties entrusted to him in order to absolve him from any liability. But simultaneously, she was also doing the same thing to impress upon her clients, the party claimants against Multitel, that she was doing everything to reclaim the money they invested with Multitel. Respondent herself admitted to complainant that without the latter’s help, she would not have been able to earn as much and that, as a token of her appreciation, she was willing to share some of her earnings with complainant. Clearly, respondent’s act is shocking, as it not only violated Rule 9.02, Canon 9 of the Code of Professional Responsibility, but also toyed with decency and good taste.
7. Respondent even had the temerity to boast that no Multitel client had ever complained of respondent’s unethical behavior. This remark indubitably displays respondent’s gross ignorance of disciplinary procedure in the Bar. As a member of the Bar, she is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter even if no private individual files any administrative complaint.
8. Finally, respondent argues that the recommendation of the IBP Board of Governors to disbar her on the grounds of deceit, malpractice and other gross misconduct, aside from violation of the Lawyer’s Oath, has been rendered moot and academic by voluntary termination of her IBP membership, allegedly after she had been placed under the Department of Justice’s Witness Protection Program. Convenient as it may be for respondent to sever her membership in the integrated bar, this Court cannot allow her to do so without resolving first this administrative case against her.
The resolution of the administrative case filed against respondent is necessary in order to determine the degree of her culpability and liability to complainant. The case may not be dismissed or rendered moot and academic by respondent’s act of voluntarily terminating her membership in the Bar regardless of the reason for doing so. This is because membership in the Bar is a privilege burdened with conditions. The conduct of a lawyer may make him or her civilly, if not criminally, liable to his client or to third parties, and such liability may be conveniently avoided if this Court were to allow voluntary termination of membership. Hence, to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability. No such proof exists in the present case.
1. Rule 15.03, Canon 15 of the Code of Professional responsibility provides:
Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts.
This prohibition is founded on principles of public policy, good taste and, more importantly, upon necessity. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points. Such knowledge must be considered sacred and guarded with care. No opportunity must be given to him to take advantage of his client; for if the confidence is abused, the profession will suffer by the loss thereof. It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double ─ dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is paramount in the administration of justice. It is for these reasons that we have described the attorney-client relationship as one of trust and confidence of the highest degree.
2. Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of “friendly accommodations,” precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC.
3. Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant. This argument all the more reveals respondent’s patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said:
The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. (Emphasis supplied.)
4. Given the situation, the most decent and ethical thing which respondent should have done was either to advise complainant to engage the services of another lawyer since she was already representing the opposing parties, or to desist from acting as representative of Multitel investors and stand as counsel for complainant. She cannot be permitted to do both because that would amount to double-dealing and violate our ethical rules on conflict of interest.
5. In Hornilla v. Atty. Salunat, 453 Phil. 108 (2003), we explained the concept of conflict of interest, thus:
There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.
6. Indubitably, respondent took advantage of complainant’s hapless situation, initially, by giving him legal advice and, later on, by soliciting money and properties from him. Thereafter, respondent impressed upon complainant that she had acted with utmost sincerity in helping him divest all the properties entrusted to him in order to absolve him from any liability. But simultaneously, she was also doing the same thing to impress upon her clients, the party claimants against Multitel, that she was doing everything to reclaim the money they invested with Multitel. Respondent herself admitted to complainant that without the latter’s help, she would not have been able to earn as much and that, as a token of her appreciation, she was willing to share some of her earnings with complainant. Clearly, respondent’s act is shocking, as it not only violated Rule 9.02, Canon 9 of the Code of Professional Responsibility, but also toyed with decency and good taste.
7. Respondent even had the temerity to boast that no Multitel client had ever complained of respondent’s unethical behavior. This remark indubitably displays respondent’s gross ignorance of disciplinary procedure in the Bar. As a member of the Bar, she is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter even if no private individual files any administrative complaint.
8. Finally, respondent argues that the recommendation of the IBP Board of Governors to disbar her on the grounds of deceit, malpractice and other gross misconduct, aside from violation of the Lawyer’s Oath, has been rendered moot and academic by voluntary termination of her IBP membership, allegedly after she had been placed under the Department of Justice’s Witness Protection Program. Convenient as it may be for respondent to sever her membership in the integrated bar, this Court cannot allow her to do so without resolving first this administrative case against her.
The resolution of the administrative case filed against respondent is necessary in order to determine the degree of her culpability and liability to complainant. The case may not be dismissed or rendered moot and academic by respondent’s act of voluntarily terminating her membership in the Bar regardless of the reason for doing so. This is because membership in the Bar is a privilege burdened with conditions. The conduct of a lawyer may make him or her civilly, if not criminally, liable to his client or to third parties, and such liability may be conveniently avoided if this Court were to allow voluntary termination of membership. Hence, to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability. No such proof exists in the present case.
Forcible entry; related issues.
The case of SPOUSES ROGELIO F. LOPEZ AND TEOTIMA G. LOPEZ vs. SPOUSES SAMUEL R. ESPINOSA AND ANGELITA S. ESPINOSA, G.R. No. 184225, September 4, 2009 presents various issues, including the nature of forcible entry, the concept of abandonment, vigilance of a party, and prohibited issues on appeal, thus:
1. In Dy v. Mandy Commodities Co., Inc., the Court held that there is forcible entry or desahucio when one is deprived of physical possession of land or building by means of force, intimidation, threat, strategy or stealth. The basic inquiry centers on who has the prior possession de facto. The plaintiff must prove that he was in prior possession and that he was deprived thereof.
2. While petitioners hold title to the subject property where the house was located, the sole issue in forcible entry cases is who had prior possession de facto of the disputed property. In Dy, the Court held that these are summary proceedings intended to provide an expeditious means of protecting actual possession or right of possession of property. Title is not involved; that is why it is a special civil action with a special procedure.
3. The Court of Appeals correctly held that respondents did not abandon their house. Abandonment requires (a) a clear and absolute intention to renounce a right or claim or to desert a right or property; and (b) an external act by which that intention is expressed or carried into effect. The intention to abandon implies a departure, with the avowed intent of never returning, resuming or claiming the right and the interest that have been abandoned. There is none in this case.
4. It bears stressing that the instant case was preceded by the filing of actions for recovery of possession and malicious mischief before the Office of the Punong Barangay. Likewise, upon discovery of petitioners’ acts of intrusion, respondents immediately filed a complaint for forcible entry and damages before the Municipal Trial Court in Cities. The Certification to File Action dated August 26, 2002 shows that no settlement or conciliation was reached. It is clear from the foregoing that respondents have not been remiss in asserting their rights and that petitioners’ claims over the subject property have not gone unchallenged.
5. The Court affirms the award of Php85,200.00 representing the value of improvements and attorney’s fees. The issue on the propriety of the award was raised for the first time on motion for reconsideration before the Court of Appeals. Well-settled is the rule that issues not raised below cannot be raised for the first time on appeal.
1. In Dy v. Mandy Commodities Co., Inc., the Court held that there is forcible entry or desahucio when one is deprived of physical possession of land or building by means of force, intimidation, threat, strategy or stealth. The basic inquiry centers on who has the prior possession de facto. The plaintiff must prove that he was in prior possession and that he was deprived thereof.
2. While petitioners hold title to the subject property where the house was located, the sole issue in forcible entry cases is who had prior possession de facto of the disputed property. In Dy, the Court held that these are summary proceedings intended to provide an expeditious means of protecting actual possession or right of possession of property. Title is not involved; that is why it is a special civil action with a special procedure.
3. The Court of Appeals correctly held that respondents did not abandon their house. Abandonment requires (a) a clear and absolute intention to renounce a right or claim or to desert a right or property; and (b) an external act by which that intention is expressed or carried into effect. The intention to abandon implies a departure, with the avowed intent of never returning, resuming or claiming the right and the interest that have been abandoned. There is none in this case.
4. It bears stressing that the instant case was preceded by the filing of actions for recovery of possession and malicious mischief before the Office of the Punong Barangay. Likewise, upon discovery of petitioners’ acts of intrusion, respondents immediately filed a complaint for forcible entry and damages before the Municipal Trial Court in Cities. The Certification to File Action dated August 26, 2002 shows that no settlement or conciliation was reached. It is clear from the foregoing that respondents have not been remiss in asserting their rights and that petitioners’ claims over the subject property have not gone unchallenged.
5. The Court affirms the award of Php85,200.00 representing the value of improvements and attorney’s fees. The issue on the propriety of the award was raised for the first time on motion for reconsideration before the Court of Appeals. Well-settled is the rule that issues not raised below cannot be raised for the first time on appeal.
Thursday, April 1, 2010
Irrational experiment
The Philippines, if I am not mistaken, is the only country in the world with a bar examinations system that requires two examiners per bar subject, for what reason, only the Supreme Court knows.
This was a major cause of suffering of the 2009 bar examinees who complained of the unnecessarily long and verbose lists of questions, as if verbosity and talkativeness were virtues among future lawyers.
Read a related news item below, which states that the Court might change the policy.
The Court must stop its irrational experiment.
SC yet to decide on new bar exam policy
By Tetch Torres
INQUIRER.net
First Posted 16:33:00 04/01/2010
MANILA, Philippines—The Supreme Court has yet to decide if the two examiner per subject system in the bar examinations will still be implemented.
High court spokesman Jose Midas Marquez said the issue was discussed during the special en banc session Friday but no decision was reached.
Marquez however said no problems were encountered in implementing the new policy during the last exams.
The 2009 bar exams marked the first time that not one but two were designated as examiners in each of the eight examination subjects.
The Supreme Court, on the recommendation of the Committee on Legal Education and Bar Matters, approved in February last year the proposal of the Bar Confidant to designate two examiners per bar subject as part of reforms being implemented in the bar exams.
There are apprehensions that the two examiner rule would cause delay in the release of the exam results. But Marquez said the release of the result last week was as scheduled.
Examiners this year include: Atty. Sixto S. Brillantes, Jr. and Atty. Jeremy I. Gatdula (Political Law); Court of Appeals (CA) Justice Vicente S.E. Veloso and Atty. Pablo R. Cruz (Labor and Social Legislation); Justice Alicia V. Sempio-Diy (ret.) and Court Administrator Zenaida N. Elepaño (ret.) (Civil Law); Court of Tax Appeals (CTA) Presiding Justice Ernesto D. Acosta and Atty. Edwin R. Abella (Taxation); CA Justice Ramon Paul L. Hernando and Atty. Hector Danny D. Uy (Mercantile Law); Sandiganbayan Justice Edilberto G. Sandoval and CA Justice Mario V. Lopez (Criminal Law); Sandiganbayan Justice Alexander G. Gesmundo and CA Justice Magdangal M. De Leon (Remedial Law); and Sandiganbayan Justice Samuel R. Martires and CA Justice Noel G. Tijam (Legal Ethics and Practical Exercises).
Justice Conchita Carpio Morales is the chairperson of the 2010 Committee on Bar Examinations.
In the 2009 bar exams, a total of 1,451 out of the 5,903 examinees from 108 law schools nationwide passed the tests held on September 6, 13, and 20, and October 4, 2009 at the De La Salle University in Taft Avenue, Manila.
Oath-taking of the successful bar candidates is set at 2:00 p.m. on 28 April 2010, at the Philippine International Convention Center.
See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20100401-261966/SC-yet-to-decide-on-new-bar-exam-policy
This was a major cause of suffering of the 2009 bar examinees who complained of the unnecessarily long and verbose lists of questions, as if verbosity and talkativeness were virtues among future lawyers.
Read a related news item below, which states that the Court might change the policy.
The Court must stop its irrational experiment.
SC yet to decide on new bar exam policy
By Tetch Torres
INQUIRER.net
First Posted 16:33:00 04/01/2010
MANILA, Philippines—The Supreme Court has yet to decide if the two examiner per subject system in the bar examinations will still be implemented.
High court spokesman Jose Midas Marquez said the issue was discussed during the special en banc session Friday but no decision was reached.
Marquez however said no problems were encountered in implementing the new policy during the last exams.
The 2009 bar exams marked the first time that not one but two were designated as examiners in each of the eight examination subjects.
The Supreme Court, on the recommendation of the Committee on Legal Education and Bar Matters, approved in February last year the proposal of the Bar Confidant to designate two examiners per bar subject as part of reforms being implemented in the bar exams.
There are apprehensions that the two examiner rule would cause delay in the release of the exam results. But Marquez said the release of the result last week was as scheduled.
Examiners this year include: Atty. Sixto S. Brillantes, Jr. and Atty. Jeremy I. Gatdula (Political Law); Court of Appeals (CA) Justice Vicente S.E. Veloso and Atty. Pablo R. Cruz (Labor and Social Legislation); Justice Alicia V. Sempio-Diy (ret.) and Court Administrator Zenaida N. Elepaño (ret.) (Civil Law); Court of Tax Appeals (CTA) Presiding Justice Ernesto D. Acosta and Atty. Edwin R. Abella (Taxation); CA Justice Ramon Paul L. Hernando and Atty. Hector Danny D. Uy (Mercantile Law); Sandiganbayan Justice Edilberto G. Sandoval and CA Justice Mario V. Lopez (Criminal Law); Sandiganbayan Justice Alexander G. Gesmundo and CA Justice Magdangal M. De Leon (Remedial Law); and Sandiganbayan Justice Samuel R. Martires and CA Justice Noel G. Tijam (Legal Ethics and Practical Exercises).
Justice Conchita Carpio Morales is the chairperson of the 2010 Committee on Bar Examinations.
In the 2009 bar exams, a total of 1,451 out of the 5,903 examinees from 108 law schools nationwide passed the tests held on September 6, 13, and 20, and October 4, 2009 at the De La Salle University in Taft Avenue, Manila.
Oath-taking of the successful bar candidates is set at 2:00 p.m. on 28 April 2010, at the Philippine International Convention Center.
See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20100401-261966/SC-yet-to-decide-on-new-bar-exam-policy
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