Sunday, March 30, 2014

Probable cause: where there is conflict in findings of trial court and the public prosecution - A.M. No. RTJ-14-2367

Read - A.M. No. RTJ-14-2367
Also - http://www.lawphil.net/judjuris/juri2014/jan2014/am_rtj-14-2367_2014.html

"x x x.

The trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case; in the exercise of its discretion, it may agree or disagree with the recommendation of the Secretary of Justice. Reliance on the resolution of the Secretary of Justice alone would be an abdication of the trial court's duty and jurisdiction to determine a prima facie case.6We stress that once a criminal complaint or information is filed in court, any disposition of the case (whether it be a dismissal, an acquittal or a conviction of the accused) rests within the exclusive jurisdiction, competence, and discretion of the trial court; it is the best and sole judge of what to do with the case before it.7

In resolving a motion to dismiss a case or to withdraw the information filed by the public prosecutor (on his own initiative or pursuant to the directive of the Secretary of Justice), either for insufficiency of evidence in the possession of the prosecutor or for lack of probable cause, the trial court should not merely rely on the findings of the public prosecutor or of the Secretary of Justice that no crime had been committed or that the evidence in the possession of the public prosecutor is insufficient to support a judgment of conviction of the accused.8 To do so is to surrender a power constitutionally vested in the Judiciary to the Executive.

In the present case, Judge Cacatian-Beltran does not appear to have arbitrarily denied the joint motion to withdraw informations. The records show that she evaluated and assessed the informations, the resolution of the City Prosecutor, the affidavit and reply-affidavit of the complainants, the counter-affidavit and rejoinder and the appeal memorandum of Junio and Lorica, and the supporting documents attached to them.

In her January 6, 2012 order, Judge Cacatian-Beltran notably explained the basis for her denial. No proof whatsoever exists in all these, showing that bad faith, malice or any corrupt purpose attended the issuance of her order. It is also important to note in this regard that the issue of whether Judge Cacatian-Beltran correctly denied the joint motion to withdraw informations, despite the finding of Secretary De Lima of lack of probable cause, is judicial in nature: Junio and Lorica’s remedy under the circumstances should have been made with the proper court for the appropriate judicial action, not with the OCA by means of an administrative complaint.

We also find unmeritorious Junio and Lorica’s argument that Judge Cacatian-Beltran "arrogated unto herself the role of a prosecutor and a judge"9 when she insisted that the accused stand trial although she did not find any grave abuse of discretion on the part of Justice Secretary de Lima. When a court acts, whether its action is consistent or inconsistent with a prosecutor’s recommendation, it rules on the prosecutor’s action and does not thereby assume the role of a prosecutor. The case of Hipos, Sr. v. Bay10 best explains why we so rule:

To clarify, we never stated in Ledesma that a judge is allowed to deny a Motion to Withdraw Information from the prosecution only when there is grave abuse of discretion on the part of the prosecutors moving for such withdrawal. Neither did we rule therein that where there is no grave abuse of discretion on the part of the prosecutors, the denial of the Motion to Withdraw Information is void. What we held therein is that a trial judge commits grave abuse of discretion if he denies a Motion to Withdraw Information without an independent and complete assessment of the issues presented in such Motion.

With the independent and thorough assessment and evaluation of the merits of the joint motion to withdraw information that Judge Cacatian-Beltran undertook before dismissing it, she acted as a judge should and can in no way be said to have assumed the role of a prosecutor. The parties for their part are not without any remedy as the Rules of Court amply provide for the remedy against a judicial action believed to· be grossly abusive when the remedy of direct appeal is not available. We cannot rule on this point in the present case however as this is a matter not before us in this administrative recourse against Judge Cacatian-Beltran.

x x x."

"Compensation" in Civil Law (obligations and contracts) explained - G.R. No. 191555

Read - G.R. No. 191555

"x x x.

The Issue Before the Court

The sole issue for the Court’s resolution is whether or not the CA correctly upheld the denial of Union Bank’s motion to affirm legal compensation.

The Court’s Ruling

The petition is bereft of merit. Compensation is defined as a mode of extinguishing obligations whereby two persons in their capacity as principals are mutual debtors and creditors of each other with respect to equally liquidated and demandable obligations to which no retention or controversy has been timely commenced and communicated by third parties.53 The requisites therefor are provided under Article 1279 of the Civil Code which reads as follows:

Art. 1279. In order that compensation may be proper, it is necessary:

(1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other;

(2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated;

(3) That the two debts be due;

(4) That they be liquidated and demandable;

(5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor.1awp++i1 (Emphases and underscoring supplied)

The rule on legal54 compensation is stated in Article 1290 of the Civil Code which provides that "[w]hen all the requisites mentioned in Article 1279 are present, compensation takes effect by operation of law, and extinguishes both debts to the concurrent amount, even though the creditors and debtors are not aware of the compensation."

In this case, Union Bank filed a motion to seek affirmation that legal compensation had taken place in order to effectively offset (a) its own obligation to return the funds it previously received from DBP as directed under the September 6, 2005 Writ of Execution with (b) DBP’s assumed obligations under the Assumption Agreement. However, legal compensation could not have taken place between these debts for the apparent reason that requisites 3 and 4 under Article 1279 of the Civil Code are not present. Since DBP’s assumed obligations to Union Bank for remittance of the lease payments are – in the Court’s words in its Decision dated January 13, 2004 in G.R. No. 155838 – " contingent on the prior payment thereof by [FW] to DBP," it cannot be said that both debts are due (requisite 3 of Article 1279 of the Civil Code). Also, in the same ruling, the Court observed that any deficiency that DBP had to make up (by December 29, 1998 as per the Assumption Agreement) for the full satisfaction of the assumed obligations " cannot be determined until after the satisfaction of Foodmasters’ obligation to DBP." In this regard, it cannot be concluded that the same debt had already been liquidated, and thereby became demandable (requisite 4 of Article 1279 of the Civil Code).

The aforementioned Court decision had already attained finality on April 30, 200455 and, hence, pursuant to the doctrine of conclusiveness of judgment, the facts and issues actually and directly resolved therein may not be raised in any future case between the same parties, even if the latter suit may involve a different cause of action.56 Its pertinent portions are hereunder quoted for ready reference:57

x x x."

A.M. No. 12-11-2-SC.pdf - DECONGESTING JAILS

Read - A.M. No. 12-11-2-SC.pdf

GUIDELINES FOR DECONGESTING HOLDING JAILS BY ENFORCING THE RIGHTS OF ACCUSED PERSONS TO BAIL AND TO SPEEDY TRIAL.
See -

http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=%2FA.M.+No.+12-11-2-SC.pdf

http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/A.M.%20No.%2012-11-2-SC.pdf

"PROTECTING THE NATION’S MARINE WEALTH IN THE WEST PHILIPPINE SEA" by Justice A. Carpio delivered before the Philippine Women’s Judges Association on 6 March 2014.

See - sc.judiciary.gov.ph/aboutsc/justices/j-carpio/03-06-14-speech.pdf

Click the link above.

Read the full text of:

"PROTECTING THE NATION’S MARINE WEALTH IN THE WEST PHILIPPINE SEA"

by Justice Antonio T. Carpio

delivered before the Philippine Women’s Judges Association

on 6 March 2014.

B.M. No. 1755: Rule 139-B of the Rules of Court governs the investigation of administrative complaints against lawyers.

See - B.M. No. 1755

Republic of the Philippines
SUPREME COURT
Manila

B.M. No. 1755 June 17, 2008

RE. CLARIFICATION ON RULES OF PROCEDURE OF THE COMMISSION ON BAR DISCIPLINE.

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of the Court En Banc dated June 17, 2008 B.M. No. 1755 (Re. Rules of Procedure of the Commission on Bar Discipline)

x----------------------------------------------------------------------------------x

Rule 139-B of the Rules of Court governs the investigation of administrative complaints against lawyers by the Integrated Bar of the Philippines (IBP), Section 12 of said rule prescribes the procedure before the IBP, thus:

a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator's report.

b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.

c) If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board's resolution, the Supreme Court orders otherwise.

d) Notice of the resolution or decision of the Board shall be given to all parties through their counsel. A copy of the same shall be transmitted to the Supreme Court.

To implement Rule 139-B, the Court, in Bar Matter No. 1755, approved the Rules of Procedure of the Commission on Bar Discipline (CBD) of the IBP on September 25, 2007. The rules pertinent to pleadings, notices, and appearances are provided in Secs. 1 and 2 of Rule III which read:

RULE III

PLEADINGS, NOTICES AND APPEARANCES

SECTION 1. Pleadings. The only pleadings allowed are verified complaint, verified answer and verified position papers and motion for reconsideration of a resolution.

SEC. 2. Prohibited Pleadings. The following pleadings shall not be allowed, to wit:

a. Motion to dismiss the complaint or petition

b. Motion for a bill of particulars

c. Motion for a new trial

d. Petition for relief from judgment

e. Motion for reconsideration

f. Supplemental pleadings

Upon query of IBP National President Feliciano M. Bautista, the Court issued on February 12, 2008 a Resolution amending Sec. 1, Rule III of the same rules by deleting the phrase "motion for reconsideration of a resolution," to resolve the conflicting provisions of Secs. 1 and 2 of said Rule III, thus:

Sec. 1. Pleadings. The only pleadings allowed are verified complaint, verified answer and verified position papers.

Pursuant to the February 12, 2008 Resolution, a party cannot file a motion for reconsideration of any order or resolution with the Investigating Commissioner of the CBD hearing the case.

In the Resolution dated July 31, 2006 in A.C. No. 7055 entitled Ramientas v. Reyala, the Court held that:

IN CONCURRENCE WITH THE ABOVE, NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved the accordance with our ruling inHalimao v. Villanueva, pertinent provisions of Rule III of the Rules of Procedure of the Commission on Bar Discipline, as contained in the By-Laws of the IBP, particularly §1 and §2, are hereby deemed amended. Accordingly, §1 of said rules now reads as follows:

SECTION 1. Pleadings. – The only pleadings allowed are verified complaint, verified answer, verified position paper and motion for reconsideration of resolution. x x x

And in §2, a motion for reconsideration is, thus, removed from the purview of the class of prohibited pleadings.

Further, the following guidelines shall be observed by the IBP in respect of disciplinary cases against lawyers:

1. The IBP must first afford a chance to either party to file a motion for reconsideration of the IBP resolution containing its findings and recommendations within fifteen (15) days from notice of receipt by the parties thereon;

2. If a motion for reconsideration has been timely filed by an aggrieved party, the IBP must first resolve the same prior to elevating to this Court the subject resolution together with the whole record of the case;

3. If no motion for reconsideration has been filed within the period provided for, the IBP is directed to forthwith transmit to this Court, for final action, the subject resolution together with the whole record of the case;

4. A party desiring to appeal from the resolution of the IPB may file a petition for review before this Court within fifteen (15) days from notice of said resolution sought to be reviewed; and

5. For records of cases already transmitted to this Court where there exist pending motions for reconsideration filed in due time before the IBP, the latter is directed to withdraw from this Court the subject resolutions together with the whole records of the cases, within 30 days from notice, and, thereafter, to act on said motions with reasonable dispatch.¹

In view of the February 12, 2008 Resolution, the fallo of Ramientas amending Secs. 1 and 2 of Rule III of the Rules of Procedure of the CBD is consequently repealed. At present, a motion for reconsideration is a prohibited pleading in CBD proceedings before the Investigating Commissioner. It has to be clarified further that said CBD rules of procedure apply exclusively to proceedings before said CBD Commissioner and not proceedings before the IBP Board of Governors (BOG) which are governed by Sec. 12, Rule 139-B of the Rules of Court. As such, the other dispositions inRamientas relative to the filing of a motion for reconsideration before the IPB BOG are still valid and subsisting. In fact, Ramientas has amplified the rules laid down in Rule 139-B by supplying the procedure for the filing of motions for reconsiderations before the BOG.

Thus, in answer to the query of Deputy Clerk of Court and Bar Confidant Ma. Cristina B. Layusa dated March 17, 2008 on whether the February 12, 2008 Resolution in Bar Matter No. 1755 has effectively superseded Ramientas, the Court resolved as follows:

1. On the amendment to Secs. 1 and 2 of Rule III of the CBD Rules of Procedure, the fallo in Ramientas is repealed and superseded by the February 12, 2008 Resolution. A party can no longer file a motion for reconsideration of any order or resolution of the Investigating Commissioner, such motion being a prohibited pleading.

2. Regarding the issue of whether a motion for reconsideration of a decision or resolution of the BOG can be entertained, an aggrieved party can file said motion with the BOG within fifteen (15) days from notice of receipt thereof by said party.

In case a decision is rendered by the BOG that exonerates the respondent or imposes a sanction less than suspension or disbarment, the aggrieved party can file a motion for reconsideration within the 15-day period from notice. If the motion is denied, said party can file a petition for a review under Rule 45 of the Rules of Court with this Court within fifteen (15) days from notice of the resolution resolving the motion. If no motion for reconsideration is filed, the decision shall become final and executory and a copy of said decision shall be furnished this Court.

If the imposable penalty is suspension from the practice of law or disbarment, the BOG shall issue a resolution setting forth its findings and recommendations. The aggrieved party can file a motion for reconsideration of said resolution with the BOG within fifteen (15) days from notice. The BOG shall first resolve the incident and shall thereafter elevate the assailed resolution with the entire case records to this Court for final action. If the 15-day period lapses without any motion for reconsideration having been filed, then the BOG shall likewise transmit to this Court the resolution with the entire case records for appropriate action.

Let this Resolution be published once in a newspaper of general circulation.

Very truly yours,

MA. LUISA D. VILLARAMA (sgd.)
Clerk of Court

Footnote

¹ 497 SCRA 130, 137-138

Prayer to Saint Thomas More - A Prayer for Lawyers

See - Prayer to Saint Thomas More - A Prayer for Lawyers - A Prayer to Saint Thomas More for Lawyers

"x x x.

Prayer to Saint Thomas More

A Prayer for Lawyers

By Scott P. Richert

This prayer invokes St. Thomas More as the patron saint of lawyers, asking him to pray to God for the grace to rise to the highest standards of that profession. It also makes reference, in the final verse, to St. Thomas More’s status as the patron saint of large families, and it would be appropriate for a non-lawyer to pray that verse as a separate prayer.

Prayer to Saint Thomas More

Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints:

Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul.

Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen.

x x x."

Wednesday, March 26, 2014

January 2014 Philippine Supreme Court Decisions on Commercial Law | LEXOTERICA: A PHILIPPINE BLAWG

See - January 2014 Philippine Supreme Court Decisions on Commercial Law | LEXOTERICA: A PHILIPPINE BLAWG

"x x x.

Corporations; liability of corporate officers. As a general rule, the officer cannot be held personally liable with the corporation, whether civilly or otherwise, for the consequences his acts, if acted for and in behalf of the corporation, within the scope of his authority and in good faith. Rodolfo Laborte, et al. v. Pagsanjan Tourism Consumers’ Cooperative, et al., G.R. No. 183860, January 15, 2014.

Banks; degree of diligence. Being a banking institution, DBP owed it to Guariña Corporation toexercise the highest degree of diligence, as well as to observe the high standards of integrity and performance in all its transactionsbecause its business was imbued with public interest. The high standards were also necessary to ensure public confidence in the banking system. Development Bank of the Philippines (DBP) v. Guariña Agricultural and Realty Development Corporation, G.R. No. 160758. January 15, 2014.

x x x."

Monday, March 24, 2014

New MARINA law - Republic Act No. 10635 | Official Gazette of the Republic of the Philippines

See - Republic Act No. 10635 | Official Gazette of the Republic of the Philippines

[REPUBLIC ACT NO. 10635]

AN ACT ESTABLISHING THE MARITIME INDUSTRY AUTHORITY (MARINA) AS THE SINGLE MARITIME ADMINISTRATION RESPONSIBLE FOR THE IMPLEMENTATION AND ENFORCEMENT OF THE 1978 INTERNATIONAL CONVENTION ON STANDARDS OF TRAINING, CERTIFICATION AND WATCHKEEPING FOR SEAFARERS, AS AMENDED, AND INTERNATIONAL AGREEMENTS OR COVENANTS RELATED THERETO

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Declaration of Policy.—The following are hereby declared to be the policies of the State:

(a) The State shall ensure compliance with the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention), as amended; all international agreements implementing or applying the STCW Convention; and other international maritime safety conventions or agreements that the STCW Convention seeks to promote compliance with;

(b) The State recognizes the vital contribution of the seafarers to the national economy. Toward this end, the State shall establish systems and mechanisms for the promotion and protection of the well-being of the seafarers to ensure their professionalism and competitiveness, both in local and international trade, consistent with existing local labor laws and applicable international laws;

(c) The State shall create a single maritime administrative system and structure that shall provide an enabling environment for the business of Philippine seafaring; establish appropriate institutional arrangements with other agencies of government; and create an effective regulatory framework conducive to the efficiency, transparency and competitiveness of the Philippine seafaring industry consistent with the STCW Convention; and

(d) The State shall harmonize all legal and administrative measures which are taken and provided for by government regulatory agencies and ensure that such measures are appropriate and consistent with the STCW Convention.

SEC. 2. Definition of Terms.—As used in this Act, the following terms shall mean:

(a) Certificate of competency—a certificate issued to masters, officers and Global Maritime Distress and Safety System (GMDSS) radio operators in accordance with the provisions of Chapters II, III, IV or VII of the Annex to the STCW Convention entitling the lawful holder to serve and perform the functions involved at the level of responsibility specified therein.

(b) Certificate of endorsement—an attestation of the maritime administration as to the authenticity and validity of the certificates, incorporated in the format of the certificates issued to masters and officers, stating that the issuance of the relevant certificate is in compliance with the requirements of the STCW Convention.

(c) Certificate of proficiency—a certificate other than a certificate of competency issued to a seafarer, stating that the relevant requirements of training competencies or seagoing service under the STCW Convention have been met.

(d) Documentary evidence—all the documentation, other than a certificate of competency or certificate of proficiency, used to establish that the relevant requirements of the STCW Convention have been met.

(e) Maritime administration or single maritime administration—the Maritime Industry Authority (MARINA), as the single government agency mandated to ensure complete and effective implementation of the STCW Convention.

(f) Seafarer—any person who is employed, engaged or works onboard seagoing ships, whether or not such ships are engaged in the domestic or overseas trade, and to whom the STCW Convention applies.

(g) STCW Convention—the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, and its subsequent amendments.

SEC. 3. MARINA as the Single Maritime Administration.—The MARINA, created under Presidential Decree. No. 474, as amended, shall be the single maritime administration mandated to implement and enforce the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers. It shall carry out an effective regulatory framework conducive to the efficiency, transparency and competitiveness of the Philippine seafaring industry.

SEC. 4. Powers and Functions of the MARINA.—In addition to the mandate of the MARINA under Presidential Decree No. 474, as amended, and in order to carry out the provisions of this Act, the MARINA shall exercise the following powers and functions:

(a) Act as the single and central maritime administration for all purposes relating to compliance with the STCW Convention.

(b) Administer and ensure the effective implementation of the STCW Convention; including all international conventions or agreements implementing or applying the same, as well as international maritime safety conventions or agreements that it seeks to promote compliance with.

(c) Assume all powers and functions of the Professional Regulation Commission (PRC), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the Department of Health (DOH) and the National Telecommunications Commission (NTC) relative to the issuance, validation, verification, correction, revocation or cancellation of certificates of competency, endorsement, proficiency and documentary evidence required of all seafarers and all such other matters pertaining to the implementation of the STCW Convention, subject to the following:

(1) The MARINA shall ensure that the examination, licensing and certification system for marine deck and engine officers are in accordance with the requirements prescribed under the STCW Convention. All powers, duties and functions of the PRC on examination, licensing and certification system for marine deck and engine officers as provided in Republic Act No. 8544, otherwise known as “The Philippine Merchant Marine Officers Act of 1998”, shall henceforth be exercised by the MARINA. The compensation and allowances of the Board of Marine Deck Officers and Marine Engine Officers under Article TV, Section 8 of Republic Act No. 8544 shall, however, be comparable to the compensation and allowances being received by the chairpersons and members of other existing regulatory boards under the PRC and as provided in the General Appropriations Act.

(2) The MARINA shall adopt rules and regulations, in accordance with the STCW Convention, governing able-bodied deck and engine ratings including:

(i) Monitoring and verification of compliance with the standards of ratings;

(ii) Harmonization of the procedures for periodic evaluation, assessment and monitoring activities undertaken by accredited institutions with registered programs for ratings; and

(iii) Issuance of certificates of proficiency to ratings.

(3) The MARINA shall ensure that all legal and administrative measures relative to the issuance of certificates of competency of GMDSS radio operators are in accordance with the STCW Convention. For this purpose, the MARINA shall assess, revalidate and issue GMDSS radio operator’s certificate in accordance with the provisions under the STCW Convention.

(4) The MARINA shall ensure that all maritime education, including the curricula and training programs, are structured and delivered in accordance with the written programs, methods and media of delivery, procedures, and course materials compliant with international standards as prescribed under the STCW Convention. For this purpose, the MARINA shall:

(i) Chair the Technical Panel on Maritime Education (TPME) of the CHED; the TPME shall among others, formulate, review and recommend to the CHED en banc all policies, standards, and guidelines for maritime education, including curricula, facilities and guidelines;

(ii) Monitor and verify, in coordination with the CHED, compliance with the policies, standards, and guidelines of maritime education in the conduct of maritime education and training programs;-

(iii) Review and harmonize the procedures for periodic evaluation, assessment and monitoring of all maritime education and training institutions in accordance with the standards of the CHED and other recognized international organizations;

(iv) Develop, formulate and recommend for implementation, strict quality assurance mechanisms and relevant typology for maritime education programs and institutions;

(v) Recommend to the CHED en banc the closure/phase-out of substandard maritime education institutions, in accordance with the rules and regulations, as well as recommend alternative schemes or options for the affected maritime educational institution;

(vi) Maintain an updated list of compliant and phased-out maritime education and training programs, publish such lists in appropriate media, and provide the public with a clear understanding of the consequences of enrolling in a phased-out program;

(5) The MARINA shall coordinate with the DOH to ensure that the medical standards established to ascertain the medical fitness of seafarers are in accordance with the international conventions/treaties and existing laws. For this purpose, the MARINA shall:

(i) Ensure that the medical examinations and issuance of medical certificates by the DOH accredited hospitals, medical clinics, and laboratories, including medical practitioners are in accordance with the standards prescribed by the STCW Convention; and

(ii) Ensure that medical certificates are issued by a duly-qualified medical practitioner recognized by and accredited with the DOH, and for this purpose, a register of recognized medical practitioners shall be maintained and made available to seafarers, shipping companies and State parties to the STCW Convention,

SEC. 5. Composition of the Maritime Industry Board.—To ensure the proper implementation and enforcement of the STCW Convention in relation to international maritime safety and environmental agreements, the Commandant of the Philippine Coast Guard (PCG), in lieu of the Secretary of National Defense, shall be included as member of the Maritime Industry Board established pursuant to Presidential Decree No. 474 creating the MARINA. The Maritime Industry Board may create an advisory council that will assist the MARINA in ensuring compliance with the STCW Convention, as it may deem proper. The number and members of this council shall be identified and determined by the Maritime Industry Board.

SEC. 6. Appropriations.—The Secretary of Transportation and Communications, through, the MARINA, shall immediately include in its programs the operationalization requirement of the STCW Services, the initial funding of which shall be charged against the savings or current year’s appropriations of the MARINA. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the annual General Appropriations Act.

SEC. 7. Implementing Rules and Regulations.—The MARINA shall issue the required implementing rules and regulations in accordance with the provisions of this Act within six (6) months from the effectivity hereof. In the formulation of such rules and regulations, the MARINA shall ensure that the processes and procedures for issuance, validation, verification, correction, revocation, or cancellation of certificates of competency, endorsement, proficiency arid documentary evidence required of seafarers under the STCW Convention shall be the most efficient and convenient way for the seafarers including, but not limited to, the establishment of one-stop shop arrangements, computerization and automation, and elimination of redundant fees and charges.

SEC. 8. Transitory Provisions.—All certificates of competency, endorsement, proficiency and documentary evidence issued prior to the effectivity of this Act shall be deemed valid without necessity of revalidation or reissuance until the date of expiration as stated in such certificates or other documents. Thereafter, new certificates or other documents shall be revalidated or reissued only in accordance with the implementing rules and regulations issued pursuant to this Act, in conformity with the STCW requirements.

SEC. 9. Separability Clause.—If for any reason any section or provision of this Act is declared unconstitutional or invalid, the other sections, or provisions hereof not affected by such declaration shall remain in force and in effect.

SEC. 10. Repealing Clause.—The provisions of Presidential Decree No. 474 on the composition of the Maritime Industry Board and all the provisions under Republic Act No. 8544 relating to the examination, licensing and certification system for marine deck and engine officers are hereby amended. All existing laws, orders, decrees, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SEC. 11. Effectivity Clause.—This Act shall take effect fifteen (15) days from its publication in theOfficial Gazette or in at least two (2) national newspapers of general circulation.

SC: Illegitimate children don’t have to use father’s name | Inquirer News

see - SC: Illegitimate children don’t have to use father’s name | Inquirer News

"x x x.

MANILA, Philippines—A father may not compel his illegitimate minor children to use his surname, the Supreme Court has ruled.

The Supreme Court building in Manila. INQUIRER FILE PHOTO

In a 12-page decision released Friday, the high court voted 11-0 to partially grant the petition of a congressman’s former mistress questioning a ruling by the Court of Appeals that compelled her two sons to take the surname of their father.

The justices found merit in the petitioner’s contention that requiring her children to take the surname of their father was not mandatory but merely optional under Republic Act No. 9255.

“The exception provided is in case his or her filiation is expressly recognized by the father through the record of birth appearing in the civil register or when an admission in a public document or private handwritten instrument is made by the father. In such a situation, the illegitimate child may use the surname of the father,” the court said in the decision written by Justice Presbitero Velasco Jr.

The case stemmed from a custody petition filed by the congressman in the Aparri regional trial court (RTC) seeking to change the children’s surname and appending a notarized deed of voluntary recognition of paternity of the children.

The RTC granted the congressman’s plea and ordered the registrar’s office in Makati City where the children were born to change their surname to that of their father.

Thursday, March 20, 2014

JBC gets 8 names for SC post | Headlines, News, The Philippine Star | philstar.com

See - JBC gets 8 names for SC post | Headlines, News, The Philippine Star | philstar.com

"x x x.

MANILA, Philippines - The Judicial and Bar Council (JBC) has received at least eight nominations for the post in the Supreme Court (SC) to be vacated by the retirement of Associate Justice Roberto Abad in May.

Of the nominees, seven are insiders in the judiciary: four from the Court of Appeals, two from the Sandiganbayan and a regional trial court judge.

Solicitor General Francis Jardeleza was included in the list obtained by The STAR as the lone outsider.

Among the nominees is Associate Justice
Ramon Paul Hernando of the CA’s 19th division in Cebu City, currently the youngest magistrate in the judiciary at 47.

Hernando, a law professor and law book author, has been leading all CA justices in terms of case disposition over the past two years – a distinction previously held by Justice Mariano del Castillo before his appointment to the high court.

A product of San Beda College of Law, Hernando served as a prosecutor in the Department of Justice from 1998 to 2003 and a judge in various RTCs from 2003 until he was appointed to the CA in 2010.

Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1

Senior Assistant State Prosecutor Edwin Dayog nominated Hernando, citing his competence and integrity as qualifications for the SC post.

Also nominated were CA Presiding Justice Andres Reyes Jr. and CA Associate Justices Rosmari Carandang and Noel Tijam.

Reyes comes from a family of magistrates. His father and namesake was also presiding justice of the CA while his grandfather Alex Reyes was former justice of the SC.

Carandang is a Bar 9th placer from the UP College of Law while Tijam served as judge from 1994 before being appointed to the CA in 2003.

From the Sandiganbayan, Associate Justices Ma. Cristina Cornejo and Rafael Reyes were also in the list of candidates, along with Jardeleza and Quezon City RTC Judge Reynaldo Daway.

Other nominations received by the JBC during the deadline for filing of applications and nominations last Tuesday were still being processed, which means more names could be included in the list.

The JBC secretariat said the deadline for the submission of nomination would no longer be extended.

The Constitution requires a candidate for the position of associate justice of the SC to be a natural born citizen, at least 40 years of age, and with 15 years or more of experience as a judge of a lower court or engaged in the practice of law in the country.

The magistrate must also be “a person of proven competence, integrity, probity, and independence.”

The new justice will be the fifth appointment to the 15-member high court by President Aquino. The first four were Chief Justice Ma. Lourdes Sereno and Associate Justices Bienvenido Reyes, Estela Perlas-Bernabe and Marvic Leonen.

x x x."

Tuesday, March 18, 2014

BAR EXAMS 2014

see - BAR 2014

BAR Bulletins

BAR Bulletin No. 1: SYLLABUS FOR 2014 BAR EXAMINATIONS

BusinessMirror - Philippine libel laws must be repaired

See - BusinessMirror - Philippine libel laws must be repaired

"x x x.

Philippine libel laws must be repaired

Details: Category: Opinion; 12 Mar 2014; Written by The BusinessMirror Editorial

THE recent Supreme Court decision to uphold the online-libel provision in the Cybercrime Prevention Act of 2012 as constitutional has not resolved the general libel laws in the Philippines.

Libel is defined as the publication of words and/or images that damage the good reputation of a person or legal entity. The question of which published statements are considered libelous goes back at least 2,000 years to ancient Rome. During the time, it was established that even if negative comments about a person were true, it could be considered libelous and as going against proper public behavior. A person was protected from unnecessary public humiliation, insults and shame.

The defense against libel has evolved to where a person accused of libelous behavior could respond that the offensive statements he or she made were true and that these were being disseminated for the greater public good. But if the statements were made public only to hurt someone’s reputation, then the libel law could be invoked. Further, there is a difference between the application of libel laws to a public figure and that to a private citizen.

However, libel laws have never been fixed or completely clear. Sometimes, false statements, if made without malice and believed as true, could be deemed nonlibelous. Calling another person foolish could be acceptable if it was only the name-caller’s opinion. If a newspaper published an article that said a person “acted” as though he or she was crooked, that could either be an opinion or a fair comment on a matter of public interest.

Truly, libel laws, whether criminal or civil, are confusing and subject to many interpretations.

But one thing is clear. In 2011 the United Nations Human Rights Council described the Philippine libel law as “excessive,” antiquated and in violation of the International Covenant on Civil and Political Rights, of which the country is a signatory.

The Center for Media Freedom and Responsibility reported on March 10 that “Mindanao Gold Star Daily Editor in Chief Herbie Gomez has been charged with criminal libel for publishing allegedly libelous advertisements in 2012. Contending factions in a lending company placed the ads sometime in September 2012, after which one faction filed a libel case against the other, implicating Gomez and the newspaper.”

In other words, a newspaper that publishes an advertisement from private citizens criticizing other private citizens is now facing prosecution.

This is not acceptable.

It is important that free speech is not censored or threatened with criminal prosecution. It is also important that a person or legal entity must have protection against unwarranted, false and/or malicious statements. Congress must create laws that will maintain a balance between these two basic human rights. Also, the media should not be given the job of deciding what is libelous or not under threat of prosecution.

It is time for the legislature to take responsibility and do its job of making realistic and proper laws on this issue.

x x x."

Bar Exam Results 2013, Complete List of October 2013 Philippine Bar Exams Passers | Zeibiz

See - Bar Exam Results 2013, Complete List of October 2013 Philippine Bar Exams Passers | Zeibiz

2013 Bar Topnotchers

1. Nielson Pangan
University of the Philippines
85.8%

2. Mark Oyales
University of the Philippines

Dianna Wilwayco
Ateneo De Manila University

3. Rudy Ortega
University of Batangas

4. Eden Mopia
University of the Philippines

5. Tercel Mercado
University of San Carlos

6. Manuel Sarausad
University of Cebu

7. Katrine Suyat
San Beda College-Manila

8. Michael Tiu, Jr.
University of the Philippines

9. Marjorie Fulgueras
Ateneo De Manila University

10. Cyril Arnesto
University of the Philippines

Tuesday, March 11, 2014

Cybercrime law - Rest of iceberg | Inquirer Opinion

See - Rest of iceberg | Inquirer Opinion

"x x x.

Rest of iceberg

Ads by Google

Much of the online outrage that came in the wake of the Supreme Court decision in the landmark case of Disini v. Secretary of Justice was directed at the portion of the ruling upholding the constitutionality of Section 4(c)4 of the Cybercrime Prevention Act (Republic Act No. 10175)—the “cyberlibel” provision.

Even the three dissenting members of the court—Chief Justice Maria Lourdes Sereno, and Justices Antonio Carpio and Marvic Leonen—all focused their dissents mainly on the question of cyberlibel and the related libel provision in the Revised Penal Code.

But while the cyberlibel question is indisputably significant, it is not the only concern in relation to free speech in the cybercrime law.

More insidious threat

The seemingly innocuous Section 6, which transplants provisions of the Revised Penal Code into the law, so long as they are committed “by, through and with the use of communication and information technologies (ICT),” is potentially an even more insidious threat to online speech than cyberlibel. Yet, thus far, it has sailed largely unscathed through the storms of protest that came in the wake of the law’s enactment and its “ratification” by the Supreme Court in Disini.

The decision in Disini devotes a single, somewhat dismissive, paragraph to discussing Section 6, saying that the provision “merely makes the commission of existing crimes through the Internet a qualifying circumstance.”

Section 6 is phrased simply enough: All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, that the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

ICT undefined

To my mind, there are at least two problems with Section 6 that were not substantially taken up either in the main decision, or in the dissenting opinions.

The first is that by treating the use of “information and communications technologies”—a term that is not even defined in the law itself—as a qualifying circumstance to all crimes defined and penalized under the Revised Penal Code, it opens the floodgates to a slew of prosecutions that have nothing to do with cyberspace.

‘Cyberestafa’

For instance, using a cell phone to send threatening text messages, mislead strangers into thinking that they’ve “won” a cash prize, or inform your fellow burglars that the guards by the backdoor of the warehouse are gone, can now all be potentially penalized as “cyberthreats,” “cyberestafa,” and “cyberrobbery,” respectively.

And as we come to rely more on our mobile phones, laptops, tablets, Google glasses and—who knows, eventually—surgically implanted chips, at some point, it is conceivable that all crimes will be “cybercrimes” due to the phrasing of Section 6.

The second problem is more specific and relates to other provisions of the Revised Penal Code that have been “imported” into the cybercrime law, again through Section 6.

The most glaring example here is Article 142 of the Revised Penal Code, which defines the crime of inciting to sedition. This punishes any person—x x x who shall utter seditious words or speeches, write, publish or circulate scurrilous libels against the Government of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government x x x

Adopted from sedition law

This provision is adopted from the 1901 Sedition Law promulgated by the US colonial government to deter uprisings by Filipinos. It has persisted in our statute books. It was used by presidents, such as Ferdinand Marcos and, more recently, Gloria Macapagal-Arroyo, to crack down on their critics and political opponents.

It has been given a new, more potent existence through Section 6.

Tweeting that the government is “dirty,” a “dictatorship,” or “shameful” will likely subject the hapless netizen to prosecution for “cybersedition” as these are all invectives that the Supreme Court, in the 1951 case of Espuelas v. People, has deemed seditious.

In fact, according to the same case, unless the criticism is “specific and therefore constructive, reasoned or tempered,” it is punishable.

Feelings of the faithful

Another is Article 133, used to convict Carlos Celdran. This provision penalizes “anyone who x x x shall perform acts notoriously offensive to the feelings of the faithful.”

The phrase “notoriously offensive to the feelings of the faithful” has tremendous potential for taking to task for “cyberblasphemy” all those people with proreproductive health (RH) posts who clutter our online spaces.

I have a friend who makes a habit of debating RH opponents online and I suppose I have to warn him that he is now potentially opening himself up to criminal prosecution.

Finally, there is Article 287, which penalizes “unjust vexation” with imprisonment of up to 30 days. While seemingly trivial, this provision becomes potent when fused with Section 6 since a person can now face up to six months imprisonment for any vexing, irritating or annoying statements posted online. And really, on a regular day, how many annoying posts do you see on your news feed?

6 months for cybervexing

Post an acerbic comment about all those selfies your friend uploads, and, thanks to Section 6, you may be looking at six months in Bilibid for “cybervexing.”

Ultimately, the problem with Section 6 is that it transplants wholesale hundreds of crimes from an 82-year-old law—many of which were in turn adopted from laws enacted centuries earlier—and attempts to adopt them to the completely new, completely different terrain of cyberspace.

And cyberlibel is, very much, just the tip of a very large, very heavy iceberg.

(Ibarra “Barry” M. Gutierrez III is a former director of the University of the Philippines Institute of Human Rights and former Criminal Law professor at the UP College of Law. He is also an Akbayan party-list representative.)