Sunday, July 11, 2010

Homeowners' rights


Salient parts:

Section 1. Title. – This Act shall be known as the "Magna Carta for Homeowners and Homeowners’ Associations".

Section 3. Definition of Terms. - For purposes of this Act, the following terms shall mean:

(b) "Association" refers to the homeowners’ association which is a nonstick, nonprofit corporation registered with the Housing and Land Use Regulatory Board (HLURB), or one previously registered with the Home Insurance Guarantee Corporation (now Home Guaranty Corporation) or the Securities and Exchange Commission (SEC), organized by owners or purchasers of a lot in a subdivision/village or other residential real property located within the jurisdiction of the association; or awardees, usufructuaries, legal occupants and/or lessees of a housing unit and/or lot in a government socialized or economic housing or relocation project and other urban estates; or underprivileged and homeless citizens as defined under existing laws in the process of being accredited as usufructuaries or awardees of ownership rights under the Community Mortgage Program (CMP), Land Tenure Assistance Program (LTAP) and other similar programs in relation to a socialized housing project actually being Implemented by the national government or the LGU.

(c) "Association member" refers to a homeowner who is a member of the association where his/her housing unit or lot is situated and those defined in the articles of incorporation and bylaws of the association.

(j) "Homeowner" refers to any of the following;

(1) An owner or purchaser of a lot in a subdivision/village;

(2) An awardee, usufructuary, or legal occupant of a unit, house and/or lot in a government socialized or economic housing or relocation project and other urban estates; or

(3) An informal settler in the process of being accredited as beneficiary or awardee of ownership rights under the CMP, LTAP, and other similar programs.

(k) "Residential real property" refers to any real property, the use of which is limited by law to primarily residential purposes.

(l) "Simple majority" refers to fifty percent (50%) plus one (1) of the total number of association members.

Section 4. Registration with the HLURB. - Every association of homeowners shall be required to register with the HLURB. This registration shall serve to grant juridical personality to all such associations that have not previously acquired the same by operation of the General Corporation Law or by any other general law.

The procedure for registration shall be specifically provided for in the implementing rules and regulations to be promulgated by the HLURB pursuant to Section 28 of this Act.1avvphi1 Such procedure shall provide for an adjudicatory mechanism that will be observed in the event there is a dispute involving two (2) or more associations established within the same subdivision/village), community/area, or housing project seeking registration. In resolving this type of dispute, the HLURB shall take into account the date each association was legally established, the date of submission of its application for registration, the number of members, and other similar factors.

The existence of associations previously registered with the Home Insurance Guarantee Corporation or the SEC shall be respected, and the said associations shall not be charged a penalty when they register with the HLURB after this Act takes effect.

Section 5. Rights and Duties of Every Homeowner. - Every homeowner has the right to enjoy the basic community services and facilities: Provided, That he/she pays the necessary fees and other pertinent charges.

Section 6. Qualification of a Member. - A homeowner as defined under this Act shall be qualified to be a member of an association: Provided, however, That a lessee, usufructuary, or legal occupant shall have the right of a homeowner as set forth under this Act upon procurement of a written consent or authorization from the owner of the lot or housing unit.

Until such consent or authorization is revoked in writing, the owner of the lot or housing unit is deemed to have waived his/her rights enumerated under Section 7 of this Act, except subsection (b) of the same section which can be simultaneously enjoyed by both the owner and the lessee.

For purposes of this Act, the lessee authorized in accordance with this sect shall qualify as a member with all the rights enumerated in this Act, including the duties and obligations enumerated under Sections 7, 8 and 9 hereof: Provided, further, That lessees in government socialized housing projects or urban estates and those in communities of underprivileged and homeless citizens covered under the term under Section 3 of this Act will be considered as homeowners for the purpose of qualifying as a member of a homeowners' association without need of such written consent or authorization.

Section 7. Rights of a Member. - An association member has full rights:

(a) to avail of and enjoy all basic community services and the use of common areas and facilities;

(b) to inspect association books and records during office hours and to be provided upon request with annual reports, including financial statements;

(c) to participate, vote and be eligible for any elective or appointive office of the association subject to the qualifications as provided for in the bylaws;

(d) to demand and promptly receive deposits required by the association as soon as the condition for the deposit has been complied with or the period has expired;

(e) to participate in association meetings, elections and referenda, as long as his/her bona fide membership subsists; and

(f) to enjoy all other rights as may be provided for in the association bylaws.

Section 8. Duties of a Member. - A member shall have the following duties:

(a) to pay membership fees, dues and special assessments;

(b) to attend meetings of the association; and

(c) to support and participate In projects and activities of the association.

Section 9. Delinquent Member. - The bylaws shall provide for guidelines and procedures in determining who is a delinquent member, or a member not in good standing, and to prescribe the administrative sanctions to be imposed on such member. The right to due process shall be observed in cases where administrative sanctions are imposed on a delinquent member.

Section 10. Rights and Powers of the Association. - An association shall have the following rights and shall exercise the following powers:

(a) Subject to consultation and with the approval of a simple majority of the members, adopt and amend the articles of incorporation and bylaws, rules and regulations, pursuant to existing laws and regulations;

(b) In behalf of its members, institute, defend, or intervene in litigation and/or administrative proceedings affecting the welfare of the association and the subdivision/village as a whole, excluding, however, disputes that are not the responsibility of the association;

(c) Regulate the use, maintenance, repair, replacement and modification of common areas and cause additional improvements to be made part of the common areas: Provided, That the aforementioned do not contradict the provisions of the approved subdivision plan;

(d) Regulate access to, or passage through the subdivision/village roads for purposes of preserving privacy, tranquility, internal security, and safety and traffic order: Provided, That: (1) public consultations are held; (2) existing laws and regulations are met; (3) the authority of the concerned government agencies or units are obtained; and (4) the appropriate and necessary memoranda of agreement are executed among the concerned parties;

(e) Hire, discharge or contract managing agents and other employees, agents and independent contractors to ensure the full functioning and operation of the association;

(I) Subject to consultation with and the approval of a simple majority of the association members, acquire, hold, encumber and convey in its own name any right, title to or interest in real or personal property: Provided, That such approval of a simple majority of the association members shall not be required for the acquisition, holding, encumbrance and conveyance of personal properties in amounts not exceeding ten percent (10%) of the association’s cash holdings for its use in the course of its normal operations;

(g) Ensure the availability of quality water services at a reasonable price and at its option, administer and manage the waterworks system of the subdivision;

(h) Upon consultation, grant easements, leases, concessions and authority to use common areas and petition for or consent to the vacation of streets and alleys: Provided, That the said grant of easements, leases, concessions and authority shall not be applicable to access roads, main interconnecting roads, alleys and sidewalks within the subdivision;

(i) Impose or collect reasonable fees for the use of open spaces, facilities, and services of the association to defray necessary operational expenses, subject to the limitations and conditions imposed under the law, the regulations of the board and the association’s bylaws;

(j) Cause compliance with regard to height regulations, easements, use of homes, buildings, edifices, or structures that may be built within the subdivision, in accordance with the National Building Code, zoning laws, HLURB rules and regulations, existing local ordinances, and existing deeds of restriction;

(k) Subject to consultation and with the approval of a simple majority of the association members, allow the establishment of certain institutions such as, but not limited to, schools, hospitals, markets, grocery stores and other similar establishments that will necessarily affect the character of the subdivision/village in terms of traffic generation, and/or opening the area to outsiders which may result in the loss of privacy, security, safety, and tranquility to its residents, in accordance with the National Building Code, zoning laws, existing local ordinances, HLURB rules and regulations, and existing jurisprudence: Provided, That such prior approval shall not be necessary for the establishment of sari - sari stores, home industries and similar small - scale business enterprises within the subdivision/village classified as socialized housing;

(l) Suspend privileges of and services to and/or impose sanctions upon its members for violations and/or noncompliance with the association's bylaws, and rules and regulations;

(m) Petition for the creation of a separate barangay, independently or together with neighboring subdivisions: Provided, That all the requirements of the Local Government Code of 1991 are met; and

(n) Exercise any other powers conferred by the bylaws and the HLURB necessary for the governance and operation of the association.

Section 11. Board of Directors or Trustees. - The bylaws of the association shall provide for the qualifications and number of the directors or trustees that will comprise the board.

Section 12. Duties and Responsibilities of the Board. In addition to the duties and responsibilities stated in the bylaws of the association, the board shall have the following duties and responsibilities:

(a) Regularly maintain an accounting system using generally accepted accounting principles, and keep books of accounts, which shall be open for inspection to any homeowner and duly authorized representatives of government agencies upon request, during reasonable hours, on business days;

(b) Collect the fees, dues and assessments that may be provided for in the bylaws and approved by a majority of the members;

(c) Collect reasonable charges for assessments, and after due notice and hearing by the board in accordance with the procedures as provided in the bylaws, and rules and regulations adopted by the board, charge reasonable fines for late payments and for violation of the bylaws, rules, and regulations of the association, in accordance with a previously established schedule adopted by the board and furnished to the homeowners;

(d) Propose measures to raise funds and the utilization of such funds and submit the same for consideration of the members of the association;

(e) Undergo a free orientation by the HLURB or any other competent agency deputized by it on how to conduct meetings, preparation of minutes, handling of accounts, laws and pertinent rules and regulations within thirty (30) days after election or appointment;

(f) Discharge the duties and responsibilities provided for in the association’s bylaws; and

(g) Exercise such other powers as may be necessary and proper in accordance with this Act and for the accomplishment of the purposes for which the association was organized.

The board shall act in all instances on behalf of the association, except to amend the articles of incorporation, to dissolve the association, to elect members of the board or to determine the qualifications, powers and duties, or terms of office of the board, and other instances that require the vote or approval of the members themselves. In the performance of their duties, the officers and members of the board shall exercise the degree of care and loyalty required by such position.

Section 13. Removal of a Director or Trustee. - Through a signed petition of a simple majority of the association members in good standing, subject to a verification and validation by the HLURB, a director/trustee may be removed for causes provided in the bylaws of the association: Provided, That if a majority of the members of the board is removed, it shall be considered a dissolution of the entire board, in which case, Section 14 hereof shall govern.

Within sixty (60) days after the removal of a director or trustee, an election shall be called by the remainder of the board for the purpose of determining who shall hold office for the unexpired term of the removed director/trustee.

Section 14. Dissolution of the Board. - Through a signed petition of two - thirds (2/3) of the association members subject to a verification and validation by the HLURB, the board of the association may be dissolved for causes provided in the bylaws of the association.

Within sixty (60) days from the above dissolution, an election for a new board shall be called and conducted by the HLURB for the purpose of determining who shall hold office for the unexpired term of the dissolved board.

Until the new board members shall have been elected and qualified, the HLURB shall designate an interim board: Provided, That such board shall be composed of association members in good standing: Provided, further, That such interim board members shall not be eligible to run in the election called for the purpose of replacing the members of the dissolved board.

Section 15. Association Bylaws. - The bylaws of the association shall be adopted by a simple majority of the members of the association. Consistent with the provisions of this Act, it shall provide for:

(a) The rights, duties and obligations of members;

(b) The circumstances under which membership is acquired, maintained, and lost;

(c) The schedule, venue, and manner of conducting the regular, special, and emergency meetings of the general membership, the required quorum, and allowable proxies in such meetings;

(d) The number, qualifications, powers and duties, terms of office, manner of electing and removing the board and the filling of vacancies in the board: Provided, That the term of office of the members of the board shall not exceed two (2) years;

(e) The qualifications, positions, duties, election or appointment, and compensation of other officers and employees of the association: Provided, That the term of office of the other officers shall not exceed two (2) years: Provided, further, That no officer of the association holding a rank of director or trustee shall likewise be entitled to any compensation;

(f) The schedule, venue, and manner of conducting the regular, special, and emergency meetings of the board, the required quorum, and allowable proxies in such meetings;

(g) Such powers that the board may delegate to a managing agent, if any, or to other persons;

(h) Which of its officers may prepare, execute, certify and record amendments to the governing documents on behalf of the association;

(i) The grounds and procedure for removal of director or trustee, and the manner of filling up vacancies in the board, consistent with Section 13 of this Act;

(j) The grounds and procedure for dissolution of the board, and the manner of reconstituting the board, consistent with Sections 13 and 14 of this Act;

(k) The actions for limiting, broadening or denying the right to vote, and the extent thereof;

(I) The designation of the presiding officer at meetings of directors or trustees and members;

(m) The time for holding the regular election of directors or trustees and the mode or manner of giving notice thereof;

(n) The creation of election, grievance and audit committees, and such other committees which the association may deem necessary; as well as a conciliation or mediation mechanism for the amicable settlement of disputes among members, directors or trustees, officers and committee members of the association;

(o) The dues, fees, and special assessments to be imposed on a regular basis, and the manner in which the same may be imposed and/or increased;

(p) The method of adopting, amending, repealing and abrogating the bylaws;

(q) The list of acts constituting a violation by its officers and the corresponding penalties therefor;

(r) The penalties for violation of the bylaws; and

(s) Such other matters necessary for the proper or convenient transaction of its corporate business and affairs.

Section 16. Proxies. - Association members may vote in person or by proxy in all meetings of members. Proxies shall be in writing, signed by the member and filed before the scheduled meeting with the association secretary. Unless otherwise provided in the proxy, it shall be valid only for the meeting for which it is intended, No proxy shall be valid and effective for a period longer than three (3) years at anyone time unless earlier revoked by the member.

Section 17. Financial and Other Records. - The homeowners’ association is enjoined to observe the following, with regard to its funds, financial and other records:

(a) The association or its managing agent shall keep financial and other records sufficiently detailed to enable the association to fully declare to each member the true statement of its financial status. All financial and other records of the association including, but not limited to, checks, bank records and invoices, in whatever form these are kept, are the property of the association. Each association’s managing agent shall turn over all original books and records to the association immediately upon termination of the management relationship with the association, or upon such other demand as is made by the board. An association’s managing agent is entitled to keep association records. All records which the managing agent has turned over to the association shall be made reasonably available for the examination and copying by the managing agent;

(b) All records involving the affairs of the association shall be available for examination by all owners, holders of mortgages on the lots, and their respective authorized agents upon reasonable advanced notice, during normal working hours at the office of the association: Provided, That holders of mortgages on lots may have access to the information about the property held in mortgage with the written consent of the registered owner;

(c) A financial statement of the association shall be prepared annually by an auditor, the treasurer and/or an independent certified public accountant within ninety (90) days from the end of the accounting period to be posted in the association office, bulletin boards, or other conspicuous places within the subdivision/village, and to be submitted to the HLURB; and

(d) The funds of the association shall be kept in accounts in the name of the association and shall not be joined with the funds of any other association, or any person responsible for the custody of such funds.

Section 18. Relationship with LGUs. - Homeowners' associations shall complement, support and strengthen LGUs in providing vital services to their members and help implement local government policies, programs, ordinances, and rules.

Associations are encouraged to actively cooperate with LGUs in furtherance of their common goals and activities for the benefit of the residents of the subdivisions/villages and their environs.

Where the LGUs lack resources to provide for basic services, the associations shall endeavor to tap the means to provide for the same. In recognition of the associations’ efforts to assist the LGUs III providing such basic services, association dues and income derived from rentals of their facilities shall be tax - exempt: Provided, That such income and dues shall be used for the cleanliness, safety, security and other basic services needed by the members, including the maintenance of the facilities of their respective subdivisions or villages.

LGUs shall, upon due notice, hold public consultations with the members of the affected associations, especially their officers and directors, where proposed rules, zoning and other ordinances, projects and/or programs affecting their jurisdiction and surrounding vicinity are to be implemented prior to the effectivity or implementation of such rules, zoning, ordinances, projects or programs: Provided, That in cases of zonal reclassification, the approval of a simple majority of homeowners shall be required.

Such public consultations shall conform to the manner as specified in Rule XI, Article 54 of the implementing rules and regulations of Republic Act No. 7160, otherwise known as the Local Government Code of 1991.

Section 20. Duties and Responsibilities of the HLURB. - In addition to the powers, authorities and responsibilities vested in it by Republic Act No. 8763, Presidential Decree No. 902 - A, Batas Pambansa Big. 68 and Executive Order No. 535, Series of 1981, as amended, the HLURB shall:

(a) Regularly conduct free orientation for officers of homeowners’ associations or deputize another competent agency to conduct the orientation;

(b) Formulate and publish a Code of Ethics and Ethical Standards for board members detailing prohibited conflicts of interest;

(c) Register all associations, federations, confederations or umbrella organizations of the associations;

(d) Hear and decide inter - association and/or inter - association controversies and/or conflicts, without prejudice to filing civil and criminal cases by the parties concerned before the regular courts: Provided, That all decisions of the HLURB are appealable directly to the Court of Appeals;

(e) Formulate the rules or manner of verification and validation of petitions for the removal of director(s) or trustee(s) of the association or dissolution of the board pursuant to Sections 13 and 14 of this Act;

(f) Exercise the same powers over federations, confederations or umbrella organizations of the associations;

(g) Formulate, in consultation with the representatives of associations, federations, confederations or umbrella organizations of the associations, standard nomenclatures to be used for the associations' books of accounts, and a standard articles of incorporation and bylaws for homeowners' association for reference purposes;

(h) Formulate, in consultation with the representatives of associations, federations, confederations or umbrella organizations of the associations, the guidelines in regulating the kinds of contributions and fees that may be charged and/or collected by associations; and

(i) Call upon the Philippine National Police, other law enforcement agencies, and other instrumentalities of the government, if necessary, for the enforcement of its functions.

Section 21. Additional Positions and Personnel for the HLURB. - For purposes of this Act, the HLURB shall, upon its discretion, create positions and enlist additional personnel to carry out its mandate.

Section 22. Prohibited Acts. - It shall be prohibited for any person:

(a) To compel a homeowner to join the association, without prejudice to the provisions of the deed of restrictions, its extensions or renewals as approved by the majority vote of the members or as annotated on the title of the property; the contract for the purchase of a lot in the subdivision project; or an award under a CMP project or a similar tenurial arrangement;

(b) To deprive any homeowner of his/her right to avail of or enjoy basic community services and facilities where he/she has paid the dues, charges, and other fees for such services;

(c) To prevent any homeowner who has paid the required fees and charges from reasonably exercising his/her right to inspect association books and records;

(d) To prevent any member in good standing from participating in association meetings, elections and referenda;

(e) To deny any member due process in the imposition of administrative sanctions;

(f) To exercise rights and powers as stated m Section 10 in violation of the required consultation and approval of the required number of homeowners or members;

(g) To unreasonably fail to provide basic community services and facilities and maintain, repair, replace, or modify such facilities;

(h) To unreasonably fail to comply with Section 17 of this Act; or

(i) To violate any other provision of this Act.

Section 23. Penalties and Sanctions. - Any person who, intentionally or by gross negligence, violates any provision of this Act, fails to perform his/her functions under this Act and/or violates the rights of the members, shall be punished with a fine of not less than Five thousand pesos (Php5, 000.00) but not more than Fifty thousand pesos

(Php50, 000.00) and permanent disqualification from being elected or appointed as member of the board, officer or employee of the association, without prejudice to being charged before a regular court for violations of the provisions of the Revised Penal Code, Civil Code and other pertinent laws.

If the violation is committed by the association, the members, officers, directors or trustees of the association who have actually participated in, authorized, or ratified the prohibited act shall be held liable.

If the violation is committed by the employees and agents who acted in gross violation of the provisions of this Act, the officers, directors or trustees, or incorporators of the association shall be jointly and severally liable with the offending employees, agents, and the association.1avvphi1

Section 24. Review of Association's Bylaws. - In order to comply with the provisions of this Act, the homeowners' association shall, within six (6) months from the effectivity of this Act, conduct a review of its bylaws, draft its own rules of procedure to be incorporated in the bylaws and conduct a plebiscite for the approval of the members of the association. A simple majority shall be used to determine the approval of the bylaws.

Prosecution service act of 2010

What I find immoral and unconstitional in Republic Act No. 10071 (AN ACT STRENGTHENING AND RATIONALIZED THE NATIONAL PROSECUTION SERVICE - "Prosecution Service Act of 2010") is this provision:

"Subject to Section 20 hereof, the salaries and allowances of regional, provincial and city prosecutors and their assistants, and the members of the prosecution staff, including the prosecution attorneys, shall be paid entirely out of national funds and included in the annual appropriations of the DOJ: Provided, however, That this provision is without prejudice to the grant of allowances to the above-mentioned prosecutors by their respective local governments in amounts not exceeding fifty percent (50%) of their basic salaries; Provided, further, That the whole of the allowances or portion thereof, whether granted by the national or local government shall be exempt from the income tax."

Here are some of its salient parts:

Section 3. Creation of the National Prosecution Service. - There is hereby created and established a National Prosecution Service to be composed of the prosecution staff in the Office of the Secretary of Justice and such number of regional prosecution offices, offices of the provincial prosecutor and offices of the prosecutor as are hereinafter Provided, which shall be primarily responsible for the preliminary investigation and prosecution of all cases involving violations of penal laws under the supervision of the Secretary of Justice, subject to the provisions of Sections 4, 5 and 7 hereof.

Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice includes authority to act directly on any matter involving national security or a probable miscarriage of Justice within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor or the city prosecutor and to review, reverse, revise, modify or affirm on appeal or petition for review as the law or the rules of the Department of Justice (DOJ) may provide, final judgements and orders of the prosecutor general, regional prosecutors, provincial prosecutors, and city prosecutors.

For purposes of determining the cases which may be acted on, directly by the Secretary of Justice, the phrase "national security" shall refer to crimes against national security as Provided under the Penal Code, Book II, Title 1, and other cases involving acts of terrorism as defined under the Human Security Act under Republic Act No. 9372.

Section 8. The Provincial Prosecutor or City Prosecutor. - There still be for each province or city a Provincial Prosecutor or city Prosecutor, as the case may be, who shall be assisted by at least one (1) Deputy Provincial Prosecutor or Deputy City Prosecutor and such number of assistant and associate prosecutors as provided for hereinafter. Provided, however, That whenever a new province or city is created, it shall have a provincial prosecutor or city prosecutor, a deputy provincial prosecutor or deputy city prosecutor and such number of assistant and associate prosecutors as there are court branches therein at the ratio of two (2) prosecutors for each branch of regional trial court, one (1) prosecutor for each branch of metropolitan trial court or municipal trial court in cities, and one (1) prosecutor for every two (2) municipal trial courts in municipalities or branches thereof municipal circuit trial courts.

Section 9. Powers and Functions of the Provincial Prosecutor or City Prosecutor. - The provincial prosecutor shall:

(a) Be the law officer of the province or city, as the case may be:

(b) Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of penal laws and ordinances within their respective jurisdictions, and have the necessary information or complaint prepared or made and filed against the persons accused. In the conduct of such investigations he or any of his/her assistants shall receive the statements under oath or take oral evidence of witnesses, and for this purpose may by subpoena summon witnesses to appear and testify under oath before him/her, and the attendance or evidence of an absent or recalcitrant witness may be enforced by application to any trial court;

(c) Have charge of the prosecution of all crimes, misdemeanors and violations of city or municipal ordinances in the courts at the province or city and therein discharge all the duties incident to the institution of criminal actions, subject to the provisions of second paragraph of Section 5 hereof.

Section 13. Automatic Creation of Positions of Prosecutor. - Whenever new courts or branches thereof are created, there shall be automatically created for the province or city where such courts or branches are seated positions of assistant and associate prosecutors in such number determined pursuant to the ratio established in Section 8 hereof: Provided, however, That if the branches of a regional trial court shall be seated at a city outside the metropolitan area established by law, the number of positions shall be distributed between the city and the province where the city is located according to the territorial jurisdiction covered by such branch: Provided, further, That in case the branches created are of regional trial court, not less than one-half of the corresponding prosecutors shall have the rank of Prosecutor III If the province or city has at least twenty-five (25) prosecutors, including the additional, or the city is in a metropolitan area established by law, and the rest, Prosecutor II; otherwise, they may have the ranks of Prosecutor II and Prosecutor I.

Section 14. Qualifications, Rank and Appointment of the Prosecutor General. - The Prosecutor General shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments, and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefits as those of the Presiding Justice of the Court of Appeals and shall be appointed by the President.

Section 16. Qualifications, Ranks, and Appointments of Prosecutors, and other Prosecution Officers. - Prosecutor with the rank of Prosecutor V shall have the same qualification for appointment, rank, category, prerogatives, salary grade, and salaries, allowances, and emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefits as those of a n associate justice of the Court of Appeals.

Prosecutors with the rank of Prosecutor IV shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Regional Trial Court.

Prosecutor with the rank of Prosecutor III shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court.

Prosecutor with the rank of Prosecutor II shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Municipal Trial Court in cities.

Prosecutor with the rank of Prosecutor III shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court in municipalities.

Any increase after the approval of this Act in the salaries, allowances or retirement benefits or any upgrading of the grades or levels thereof of any or all of the Justices or Judges referred to herein to whom said emoluments are assimilated shall apply to the corresponding prosecutors.

All the above prosecutors shall be selected from among qualified and professionally trained members of the legal profession who are of proven integrity and competence. They shall be appointed by the President of the Philippines upon recommendation of the Secretary of Justice and shall serve until they reach the age of sixty five (65) years old x x x.

A prosecution attorney or special counsel shall be a member of the bar in good standing and shall have a salary under Salary Grade 25. Such prosecution officer shall be appointed by the Secretary of Justice: Provided, however, That with respect to a special counsel, his/her appointment shall be upon the recommendation of the provincial governor or city mayor and with the endorsement of the provincial prosecutor or city prosecutor, as the case may be.

Subject to Section 20 hereof, the salaries and allowances of regional, provincial and city prosecutors and their assistants, and the members of the prosecution staff, including the prosecution attorneys, shall be paid entirely out of national funds and included in the annual appropriations of the DOJ: Provided, however, That this provision is without prejudice to the grant of allowances to the above-mentioned prosecutors by their respective local governments in amounts not exceeding fifty percent (50%) of their basic salaries; Provided, further, That the whole of the allowances or portion thereof, whether granted by the national or local government shall be exempt from the income tax.

Section 19. No Undermining of Security of Tenure. - Nothing in this Act shall be construed to allow the transfer, except as Provided herein or in case of temporary assignment, as public interest may require, of any prosecutor to any place or station or to undermine the security of tenure of incumbent prosecutors as provided in the laws. Such temporary assignment shall not exceed three (3) months without his or her written consent. No Provincial Prosecutor or City Prosecutor shall be detailed or assigned to another office or station, except in a concurrent capacity and with his or her written consent.lawphil

Section 20. Special Allowances. - The special allowances granted to the members of the National Prosecution Service under Republic Act No. 9279 shall continue to be given to them subject to the provisions hereof: Provided, however, that the amount not supported by the funding source specified in Section3 thereof to complete the equivalent of hundred percent (100%) of the basic salary shall be paid through appropriations included in the budget of the DOJ: Provided, further, That when the amount being supported by the said funding source shall have been also included in the General Appropriations, the fees authorized under said Section 3 shall no longer be collected.

Section 21. Retirement Benefits. - When a prosecutor, who has rendered at least fifteen (15) years of service either in the National Prosecution Service or in any branch of government, or in both, retires for having attained the age of sixty-five (65) years or resigns by reason of incapacity to discharge the duties of his/her office, he/she shall, during the residue of his/her natural life, in the manner hereinafter Provided, receive a retirement pension based on the highest monthly salary, plus the highest monthly aggregate of transportation, living and representation allowances, which he/she was receiving at the time of his/her retirement or resignation.

When a prosecutor has attained the age of sixty (60) years and has rendered at least fifteen (15) years of service in government, the last five (5) years of which must have been continuously rendered in the prosecution service, he/she shall likewise be entitled to retire and receive during the residue of his/her natural life the same benefits Provided for in this section: Provided, however, that those with less than fifteen (15) years of service in the government shall be entitled to a pro-rata pension xxx.
Section 22. Conditions. - To maintain entitlement to the pension herein Provided, no prosecutor, during the time he/she is receiving said pension, shall appear as counsel before any judicial or quasi-judicial or quasi-judicial agency in any civil case wherein the Government or any agency, subdivision, or instrumentality thereof is an adverse party, or in any criminal case wherein any officer or employee of the Government is accused of an offense committed in relation to his/her office, or collect any fee for his/her appearance in any administrative proceedings to maintain an interest adverse to the government , whether national, provincial, or municipal or to any of its legally constituted officers. When a prosecutor covered under this Act shall assume an elective public office, he/she shall not, upon assumption of office and during his/her term, retrieve the monthly pension or any of the allowance due to him/her.

Murdered since 2001: 26 lawyers, 17 judges

Murder of Filipino Lawyers Blamed on Arroyo’s Counterinsurgency Program - Bulatlat

Saturday, July 10, 2010

Manila hall of justice long overdue

In 2005 ex-Pres. G. Arroyo turned over the old GSIS Bldg. to the Supreme Court to be renovated as the Hall of Justice for the city of Manila. Nothing has happened so far. Manila, historical capital of the country, is famous for its dark, dirty, small, and crowded courtrooms. I find the halls of justice of other poor provinces and towns in the country to be more appealing and dignified than the courtrooms of Manila. This situation is indeed very embarrassing to the entire republic.

Consumer rights vs. power utility

Clerk of court dismissed: misconduct, drug addiction

2010 rule on court-annexed family mediation

Regaining the people’s trust

Business - Regaining the people’s trust -

Business - Falsified corporate papers

Business - Falsified corporate papers -

Justice for murdered journalists

Aquino plans ‘super body’ vs attacks on journalists -, Philippine News for Filipinos

Impunity continues: Philippines as Asia's wild west.

Enduring impunity -, Philippine News for Filipinos

Filipinos burdened by Ombudsman

Palace: No Merci in Bolante probe -, Philippine News for Filipinos

Ombudsman: payback time...

Akbayan to initiate Gutierrez impeachment -, Philippine News for Filipinos

Same-sex marriage; recent US case.

2010 wage order (NCR)


(Basis: R.A. 6727 (The Wage Rationalization Act)].

Section 1. NEW MINIMUM WAGE RATES. Upon effectivity of this
Wage Order, all private sector minimum wage workers and employees in the
National Capital Region shall receive an increase in the amount of Twenty
Two Pesos (P22.00) per day.

a) The new daily minimum wage rates of covered workers in the private
sector in the National Capital Region shall be as follows:

Non-Agriculture - P404.00
Agriculture (Plantation and Non
Plantation) - P367.00
Private Hospitals with bed capacity
of 100 or less - P367.00
Retail/Service Establishments
employing 15 workers or less - P367.00
Manufacturing Establishments
regularly employing less than 10
workers - P367.00

Section 2. COVERAGE. The minimum wages prescribed in this
Order shall apply to all minimum wage earners in the private sector in the
Region, regardless of their position, designation or status of employment and
irrespective of the method by which they are paid.

This Wage Order shall not cover household or domestic helpers; persons
in the personal service of another, including family drivers, and workers of duly
registered Barangay Micro Business Enterprises (BMBEs) with Certificates of
Authority pursuant to Republic Act No.9178.

Section 3. BASIS OF MINIMUM WAGE RATES. The minimum wage
rates prescribed under this Order shall be for the normal working hours which
shall not exceed eight (8) hours of work a day.

Section 4. APPLICATION TO CONTRACTORS. In the case of
contracts for construction projects and for security, janitorial and similar
services, the increase prescribed in this Order shall be borne by the principals
or clients of the construction/service contractors and the contract shall be
deemed amended accordingly.

In the event, however, that the principals or clients fail to pay the
prescribed wage rates, the construction/service contractor shall be jointly and
severally liable with his principal or client.

INSTITUTIONS. In the case of private educational institutions, the share of
covered workers and employees in the increase in tuition fees for School Year
2010-2011 shall be considered as compliance with the wage increase
prescribed herein. However, payment of any shortfall in the wage increase set
forth herein shall be covered starting School Year 2011-2012.

Private educational institutions which have not increased their tuition
fees for School Year 2010-2011 may defer compliance with the minimum wage
prescribed herein until the beginning of School Year 2011-2012.
In any case, all private educational institutions shall implement the
Minimum Wage prescribed herein starting School Year 2011-2012.

Section 6. WORKERS PAID BY RESULT. All workers paid by result,
including those who are paid on piecework, “takay”, “pakyaw” or task basis,
shall be entitled to receive the prescribed Minimum Wage per eight (8) hours
work a day, or a proportion thereof for working less than eight (8) hours.

of apprentices and learners shall in no case be less than seventy-five percent
(75%) of the applicable minimum wage rates prescribed in this Order.
All recognized learnership and apprenticeship agreements entered into
before the effectivity of this Order shall be considered automatically modified
insofar as their wage clauses are concerned to reflect the new minimum wage

All qualified handicapped workers shall receive the full amount of the
minimum wage rate prescribed herein pursuant to Republic Act No. 7277,
otherwise known as the Magna Carta for Disabled Persons.

Section 8. EXEMPTIONS. Upon application with and as determined
by the Board, based on documentation and other requirements in accordance
with applicable rules and regulations issued by the National Wages and
Productivity Commission (NWPC) the following may be exempted from the
applicability of this Order:

1. Distressed Establishments;
2. Retail/Service Establishments Regularly Employing Not More Than
Ten (10) workers;
3. Establishments whose Total Assets including those arising from loans
but exclusive of the land on which the particular business entity’s
office, plant and equipment are situated, are not more than P3 Million;
4. Establishments Adversely Affected by Natural Calamities.

Section 9. APPEAL TO THE COMMISSION. Any party aggrieved by
this Wage Order may file an appeal to the NWPC, through the Board, in three
(3) printed copies, not later than ten (10) days from the publication of this Wage

Section 10. CREDITABLE WAGE INCREASE. Any increase granted by
an employer in an organized establishment within three (3) months prior to the
effectivity of this Order shall be credited as compliance with the prescribed
increase set forth herein, provided that an agreement to this effect has been
forged between the parties or a collective bargaining agreement provision
allowing creditability exists. In the absence of such an agreement or provision in
the CBA, any increase granted by the employer shall not be credited as
compliance with the wage increase prescribed in ths Order.

In unorganized establishments, any increase granted by the employer
within five (5) months prior to the effectivity of this Order shall be credited as
compliance therewith.

In case the increases given are less than the prescribed Minimum Wage,
the employer shall pay the difference. Such increases shall not include
anniversary increases, merit wage increases and those resulting from the
regularization or promotion of employees.

application of the wage increase prescribed in this Order results in distortions in
the wage structure within the establishment, it shall be corrected in accordance
with the procedure provided for under Article 124 of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the Philippines.

Section 12. COMPLAINTS FOR NON-COMPLIANCE. Complaints for
non-compliance with this Order shall be filed with the National Capital Region
Office of the Department of Labor and Employment, and shall be the subject of
enforcement proceedings under Articles 128 and 129 of the Labor Code, as

Section 13. NON-DIMINUTION OF BENEFITS. Nothing in this Order
shall be construed to reduce any existing wage rates, allowances and benefits
of any form under existing laws, decrees, issuances, executive orders and/or
under any contract or agreement between the workers and employers.

Section 14. PROHIBITION AGAINST INJUCTION. No preliminary or
permanent injunction, or temporary restraining order may be issued by any
court, tribunal or other entity against any proceedings before the Board.

Section 15. FREEDOM TO BARGAIN. This Order shall not be
construed to prevent workers in particular firms or enterprises or industries from
bargaining for higher wages with their respective employers.

Section 16. REPORTING REQUIREMENT. Any person, company,
corporation, partnership or any entity engaged in business shall submit a
verified report on their wage structure to the Board not later than January 31,
2011 and every year thereafter in accordance with the form prescribed by the
National Wages and Productivity Commission.

Section 17. PENAL PROVISION. Any employer who refuses or
fails to comply with this Order shall be subject to the penalties specified under
RA 6727, as amended under R.A. No. 8188.

Section 18. REPEALING CLAUSE. All orders, issuances, rules and
regulations or parts thereof inconsistent with the provisions of this Wage Order
are hereby repealed, amended or modified accordingly.

Section 19. SEPARABILITY CLAUSE. If any provision or part of this
Wage Order is declared unconstitutional, or in conflict with existing law, the
other provisions or parts thereof shall remain valid.


Room 11-C, 11/F, G.E. Antonino Building
corner T.M. Kalaw & J. Bocobo Streets,
Ermita, Manila
Telefax: 527-51-55/400-67-65

Prepared by:

Atty. Manuel J. Laserna Jr.

Thursday, July 8, 2010

Lawyers sue each other for libel.

‘The Firm’ sues ex-solicitor general for libel -, Philippine News for Filipinos

2011 Bar exams: 60% multiple choice.

60% of Bar exams will be multiple choice questions -, Philippine News for Filipinos

Race to the Supreme Court heats up.

Comelec commissioner, Legarda nominated to SC seats -, Philippine News for Filipinos

Ombudsman cries foul (of all people)!

Ombudsman rules solely on facts, evidence -, Philippine News for Filipinos

Freedom of assembly

Five years ago the militant partylist congressional representatives Satur Ocampo, filed House Bill No. 1555, the explanatory note of which stated, inter alia, that, more often than not, authorities invoked the “No Permit, No Rally” rule to justify the dispersal of rallies.

It added that the Marcos-period Batasang Pambansa Bilang 880 has been the convenient excuse for state forces to suppress otherwise peaceful demonstrations, effectively curtailing the basic constitutional rights to assembly, free speech and petition of government for redress of grievances.

The bill (which lies comatose in the congressional archives) repeals the Marcosian relic Batasang Pambansa 880.

It seeks to ensure the untrammeled exercise of civil rights without unnecessary and unreasonable impediments.

Its underlying premise is basic: the constitutional rights of the people peaceably to assemble and petition the government for redress of grievances are essential and vital to the individual and the collective strength and stability of the nation. Read its full text below, thus:

Republic of the Philippines

First Regular Session



SECTION 1. Title. – This law shall be known as “The Freedom of Expression Act of 2004.”

SECTION 2. Declaration of policy. – The constitutional rights of the people peaceably to assemble and petition the government for redress of grievances through all medium and means of expression are essential and vital to the individual and the collective strength and stability of the nation. Towards this end, the State shall ensure the free exercise of such rights without unnecessary and unreasonable impediments whatsoever.

SECTION 3. Definition of terms. – For purposes of this Act:

“Expression” refers to any statement of opinion for the purpose of presenting any cause, articulation of political, economic or social advocacies, or manifestation of support in any partisan political activity through the use of any means or media.

“Public assembly” means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting any cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social, including picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations; or petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances: PROVIDED, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

“Public place” shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access.

“Maximum tolerance” means the highest degree of restraint that the military, police and other peace-keeping authorities shall observe during a public assembly or in the dispersal of the same.

SECTION 4. No permit required. – No permit shall be required for any person or persons to organize and hold a public assembly in a public place. The organizers and leaders of the public assembly shall however be responsible for the orderly and peaceful conduct of the same so as to produce the least inconvenience to the community without injuring or endangering the health or safety of others, or totally obstructing or interfering with the free passage of any public highway or street or any body of water. PROVIDED, the leaders and organizers of a public assembly shall police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly, and to take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly.

PROVIDED FURTHER, should the public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting on his behalf may, to prevent grave public inconvenience, reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade.

SECTION 5. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least two hundred (200) meters away from the area of activity to readily maintain peace and order at all times.

SECTION 6. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties, always mindful that their responsibility to provide proper protection to those exercising their rights peaceably to assemble and to freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines:

Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform, with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of “maximum tolerance” as herein defined;

The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; and

Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or deliberate destruction of property.

SECTION 7. No dispersal of public assembly. – No public assembly shall be dispersed unless a public assembly has become actually violent and only under the following considerations:

At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;

If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the non-participants or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;

If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue another warning to the participants of the public assembly;
Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal; and

No public assembly shall be dispersed without the consent of the leaders or organizers thereof unless there is clear and convincing evidence of grave public inconvenience or serious or undue interference with the free flow of commerce and trade. In any event, no member of any law enforcement agency or any person shall fire his or her firearms in the dispersal of a public assembly.

SECTION 8. Immunity from arrest and taxation. – In order to give fullest protection to the right of the people to expression, peaceably assemble and petition the government for redress of grievances:

No person can be punished or held criminally liable for participating in or attending a public assembly;

No leader, organizer or participant shall be arrested during the public assembly; and

No tax shall be imposed upon any means or media used and owned by private individuals for expression as defined herein.

SECTION 9. Penalties. – Any person found guilty of violating any provision of this Act shall suffer imprisonment of seven (7) years and perpetual disqualification from public office.

SECTION 10. Freedom days. – Every city and municipality in the country shall endeavor to coordinate with people’s organizations and cause-oriented groups before the dates fixed for commemorating historic or socially relevant events so that traffic re-routing plans are laid down and publicized for the information of the public.

SECTION 11. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby.

SECTION 12. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act, particularly Batas Pambansa Bilang 880, are hereby repealed, amended, or modified accordingly.

SECTION 13. Effectivity. – This Act shall take effect twenty (20) days after its publication in a newspaper of general circulation.

Transparency in public service

Suggested ‘musts’ for more transparency among officials -, Philippine News for Filipinos

Ombudsman's poor conviction rate

A losing season for Ombudsman -, Philippine News for Filipinos

New justice secretary

I am one of those who was pleased by the recent appointment of Leila de Lima
as the new Secretary of Justice. Atty. de Lima was the Chairperson of the Commission on Human Rights (CHR) prior to her appointment to the DOJ. She is known as the fiery and very vocal head of the CHR and was one of the very first people to speak out against the November 23 Maguindanao massacre that left 57 people dead including 31 journalists. Under her term, the CHR also took an active role in addressing the surge of extrajudicial killings that have plagued the country during the Arroyo administration, including those that notoriously took place in the modern Philippine cities of Davao and Cebu. A Political Science major who graduated from De La Salle University in 1980, she placed eighth in the 1985 Bar Exam after earning her law degree from San Beda College in 1985. I wish her well in her new career in the DOJ. May she excellently perform her new duties with an independent mind, a humble heart, an honest conscience, and a courageous voice and pen.

Presidential legal counsel

Next to the executive secretary (little president), the president listens to the presidential legal counsel with the intensity of a student.

The new presidential legal counsel is Atty. Ed de Mesa, whose brief professional profile is reproduced below for the info of my readers.

I expect that he will play a big role in making recommendations to the president in re: the appointment of new judges and justices.

It will be noted that the immediately past and the incumbent presidents of the country, i.e., the much-maligned Gloria Arroyo (2001-2010) and the humble and simple Noynoy Aquino (2010-2016), are economists/politicians and not lawyers or jurists.

A non-lawyer president can easily get confused and dumbfounded by the intricacies and complexities of the law and the justice system if not properly guided by an excellent, honest and independent-minded presidential legal counsel and a systematic and visionary executive secretary.

The advantage of Noynoy over Gloria Arroyo is that, notwithstanding his being a non-lawyer, the spirit of natural law and natural justice safely resides in his compassionate mind and heart, thanks to the upbringing he received from his model parents Ninoy and Cory Aquino, who are the greatest contemporary Philippine icons and symbols of freedom and democracy.

Atty. Eduardo V. De Mesa
Presidential Legal Counsel

Eduardo V. De Mesa heads the Labor and Litigation Departments of the Carag, De Mesa and Zaballero Law Firm. He is a seasoned litigator and has extensive experience in tax, commercial, civil, criminal and administrative litigation. His tax litigation experience includes successful representation of clients before the Court of Tax Appeals, Court of Appeals and/or the Supreme Court on matters involving tax assessments, claims for tax refunds and tax exemptions. His labor law practice includes collective bargaining negotiations, settlement of strikes and other labor disputes, employee disciplinary actions, labor law advisory services and labor litigation. Atty. De Mesa also practices election and immigration law.

Atty. De Mesa received his Bachelor of Laws degree in 1985 from the University of the Philippines where he graduated in the top 10 of his class and was a member of the Order of the Purple Feather Honor Society. He obtained a degree in Bachelor of Science in Education from the University of Sto. Tomas in 1974. He passed the National Teachers Examination in 1977 and was admitted to the Philippine Bar in 1986.

He is presently a Commissioner on Bar Discipline of the Integrated Bar of the Philippines (IBP). He is also a member and an accredited arbitrator of the Philippine Dispute Resolution Center, Inc.


Judicial governance in Bangladesh

The Asian Legal Resource Center which is linked with the Asian Human Rights Commission has published a book entitled "Politics -- Corruption Nexus in Bangladesh: An Empirical Study of the Impacts on Judicial Governance". The book -- written by Md. Shariful Islam, Assistant Professor of Political Science at the University of Dhaka -- presented an overview of the basic institutions that are directly linked to the rule of law and criminal justice system, especially the Subordinate Judiciary of the country. Some of its salient parts as the following:

1. The book observes, "No matter what form of corruption takes place in the judiciary of Bangladesh, political factors play a huge part in terms of the origin, development and practices of corruption. Government must take a holistic approach to the problems and undertake a thorough reformation of the existing systems without any further delay. The Subordinate Judiciary of Bangladesh has yet to develop as an effective institution under the status quo. This is so even after its separation from the executive branch. It is one of the most neglected institutions of the State having only minimum facilities. In upholding the rule of law, in maintaining law and order, in protecting fundamental human rights and in building up a strong check and balance system in the State organs, the judiciary should be rescued directly and with all due speed, from its status of vulnerability."

2. In a list of identified problems the book observes:

• "Local touts and persons with vested interests can exploit the man/woman on the street by using their ignorance of the judicial process, as an opportunity for their own personal gain."
• "Innocent persons are victimized by political leaders or activists through false cases and especially in counter cases."
• "People use every means to avoid lodging their cases in a police station because of the possibility of endless police harassment."
• "Police do not record genuine cases because of political considerations or because their demands for money were refused."

3. It recommends to the Government concerned:

• "In every fiscal year ensure submission of mandatory wealth statement for the judicial officers, police personnel, lawyers, court staff, and their family members. Confiscate the illegally amassed wealth and take due legal actions immediately. Political leadership must start a screening among themselves, and then take a holistic approach involving all its different sectors."

• "Take steps immediately to ensure the separation of the judiciary from the executive organ of the State. Appointments, promotions, postings should be controlled by the Supreme Court without interference from the government secretariat. Establish a separate secretariat under the control and leadership of the Supreme Court of Bangladesh with adequate powers and capacity to communicate directly with the President."

• "Accept and implement the proposal for separate pay scales and benefits for the judges."

• "Establish additional courts with additional posts and appoint sufficient number of judges on a regular basis."

• "Enhance training standard for the judicial officers, and ensue as trainers, not politically chosen persons, but persons with high morale and commitment to equity, justice and human rights. Also encourage training and education abroad for judicial officers by relaxing restrictions."

• "Increase salary and other benefits of the police, and introduce a handsome amount of risk-allowance. Ensure an effective financial security for the family members of police personnel if he comes under attack/ dies while discharging duties."

4. The book urged the judges community to "Ensure timely and early disposal of orders in the court" and not to "entertain telephone calls from, or meet, political leaders, if not relevant."

5. The lawyers-community is urged to provide the clients with a receipt of the payment they have collected from the clients.

6. The police are recommended to:

• "Develop as an institution in the true sense of it. Ensure professionalism and commitment to uphold rule of law and justice in the society. "

• "Ignore political influence and pressures, thereby establishing dignity of the police force."

• "Register only genuine cases, rather than politically fabricated ones, thereby upholding a clean image of the police force."

• "Make sure torture, extra-judicial killings or any other inhuman or degrading treatment do not take place to the persons under police custody."


Cruel and primitive policing system in Asia

In a statement by the Asian Human Rights Commission on the occasion of the UN International Day in Support of Torture Victims held on June 26, 2010 the Commission made the following serious observations:

1. The Asian governments need to face up to their failure to honour their obligations to eliminate the use of torture in their countries. The use of torture is endemic in Asia and the reason for this is that the policing systems still use torture as the main method of investigation into crime. The extent to which torture is used is scandalously high and the time to stop it is clearly now.

2. Policing in many Asian countries is still very cruel, primitive and also inefficient and corrupt. The extent of the governments' failure is reflected in the widespread use of torture and their unwillingness to deal with this problem. The nature of the policing systems is very much linked to the kind of political systems that still prevail in Asia. These political systems have made possible the abuse of power and corruption and the local policing systems are used as instruments to facilitate such abuses and corruption.

3. The use of torture by the police contributes to prevent the development of democratically based political parties. Internal democracy within the parties is prevented by powerful politicians who aspire to power more for personal gain rather than in the service of any national objectives. Internal forces of repression prevent a healthy competitive spirit through which proper political leadership can emerge within these parties. The ruling parties also use the police as an instrument to suppress other political parties from emerging. In this manner the internal democratic process is seriously disturbed by the use of coercion in favour of a few powerful persons. As a result national institutions, vital to ensuring accountability and transparency, are prevented from being developed.

4. Bad policing based on the constant use of torture and coercion contributes to violence within societies. The chief beneficiaries of bad policing systems are those engaged in organised crime. In many countries direct links are visible between the police and the organised gangs. The emergence of the underground forces disturbs the peace within society and complaints of insecurity are constantly heard from most of the countries.

5. The fear of the police has so deepened in society that women openly complain that they will not dare to go to a police station even if they have to face some problems which requires the intervention of the police. The fear of rape and sexual harassment by the police has developed to such an extent that women in Asian societies openly express the view that the police are a socially unfriendly agency. During the months of May and June of this year the Asian Human Rights Commission interviewed women from several Asian countries and they unanimously expressed the view that policing in their countries has emerged as an agency which has a negative influence on society.

6. Bad policing with their power to use coercion and the manipulation of their powers of arrest and detention has reached such levels that many societies cannot make any progress towards democracy or rule of law without first dealing with serious police reforms. Radical police reforms remain the primary requirement of social stability and the prevention of violence.

7. Unfortunately the use of propaganda relating to the elimination of terrorism has also been used in order to further enhance the possibilities of the misuse of police powers. Under the pretext of anti terrorism even the limited achievement relating to the development of rule of law systems have been undermined. Through extensive powers acquired by anti terrorism laws the powers of arrest and detention are being misused in high proportion. Such abuse is accompanied by extrajudicial killings, by either death in custody or through forced disappearances. Serious crimes are being committed in the name of anti terrorism and as a result impunity has become widespread. The citizen is powerless under these circumstances.

8. Bad policing and abuse of power through anti terrorism laws has become a major threat to the independence of the judiciary. The judiciary in many countries is powerless when investigations are subverted and when the law enforcement agencies themselves engaged in serious crimes. Recent studies show the manner in which even legal remedies like habeas corpus actions have become ineffective in the face of massive violations by law enforcement agencies.


Kindly see the statements by women of several Asian countries who have called for the end of bad policing and the use of torture. These may be seen at:


Little president

The executive secretary is the little president of the republic, so to speak. Among all cabinet secretaries, he is the primus inter pares in the eyes of the head of state/government. He ranks first in the amount of personal trust and confidence reposed on cabinet members by the president of the republic. I am reproducing below a brief profile on the new executive secretary, Atty. Paquito N. Ochoa Jr., for the information of the regular readers of this blog. Sometimes in the hands of the alter egos of the president lie the fate of the rule of law and the quality of the justice system of a country.

Hon. Paquito N. Ochoa, Jr.
Executive Secretary

Born on November 11, 1960, lawyer Paquito "Jojo" N. Ochoa, Jr. took Economics at the University of Santo Tomas and law at the Ateneo School of Law. He joined the Bar in 1986, and his pro-bono work in his province led to his election as Director and then Vice President of the Bulacan Chapter of the Integrated Bar of the Philippines. He also engaged in private practice and served as partner of the De Mesa and Ochoa Law Offices and later partner (on leave) in the Marcos Ochoa Serapio Tan Law Firm.

The closeness of the Aquino and Ochoa families -- the late Sen. Ninoy Aquino was a close friend of the the senior Ochoa, the former mayor of Pulilan, Bulacan -- would lead to Atty. Ochoa being tapped by Noynoy Aquino to handle the latter’s legal requirements when he first ran for Congress in 1998; Atty. Ochoa has handled his legal affairs ever since.

In 2001, when then Rep. Feliciano "Sonny" Belmonte, Jr. ran for mayor, Atty. Ochoa headed his legal team. Mayor Belmonte then made Atty. Ochoa his right-hand man and later formally appointed him City Administrator in 2003.

As City Administrator, he helped oversee the management of a city grappling with budget shortfalls and the increasing demands of a fast-growing city. Atty. Ochoa headed the Finance Committee, among others, and implemented systems that would drastically cut down unnecessary spending by the city government.

Prudent spending practices that included a thorough review of the infrastructure requirements of the city and the rationalization of its utilities expenditures -- together with improved revenue collection -- allowed Q.C. to successfully balance its budget and pay all the obligations of past administrations, including the P33 million in arrears in premium payments to the GSIS dating back to 1997. It also enabled Q.C. to become one of the local government units least dependent on internal revenue allotments (IRA), with the IRA accounting for only 24% of its total income -- 11% less than it was in 2001.

The city’s fiscal discipline allowed Quezon City to -- upon the recommendation of Atty. Ochoa -- automatically release the share of Q.C. barangays in the real property tax collections of the city. To ensure that Barangay Chairmen would use their fiscal autonomy wisely, Atty. Ochoa tapped the University of the Philippines’ National College of Public Administration and Governance to train the Barangay officials in the proper disbursement of their funds.

His work as City Administrator has earned praise from governance specialists in the academe like Ateneo School of Government Dean Tony La Viña, who called Atty. Ochoa "an effective, efficient and innovative public servant," whose "programs intended to improve education, health and business permitting processes" have helped improve the delivery of basic services in Quezon City. Today Quezon City’s health workers are trained to properly implement the Magna Carta of Health Workers; its teachers receive additional training that have helped increase the scores of students in the Q.C. public school system; and Q.C. residents can expect less red tape at city hall.