Monday, August 18, 2014

Comfort women lawyer to take case of Filipino ‘comfort women’ to UN | Sun.Star

See - Comfort women lawyer to take case of Filipino ‘comfort women’ to UN | Sun.Star

"x x x.

THE lawyer of more than 70 Filipino women who were raped and physically abused by Japanese soldiers during World War II is set to take up the case of the so-called “comfort women” to the United Nations (UN).
In a statement, lawyer Harry Roque said they will take up the case before the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women and Children (CEDAW).
This was in response to the Supreme Court’s (SC) decision on August 12 not to reverse its April 2010 ruling denying the petition of the Malaya Lolas Organization to compel the Philippine Government to ask Japan to apologize and compensate victims of sexual slavery.
“The denial of justice to the Filipino comfort women by our very own Supreme Court (SC) is a violation of our treaty obligations under the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention on the Elimination of Discrimination against Women and Children,” he said.
Tokyo, however, had already rejected the call of Geneva-based UNHRC to take responsibility for the wartime sexual slavery involving some 200,000 women from Korea, China, Indonesia, Taiwan and the Philippines.
In a report by the Agence France Presse (AFP) on July 25, Japan urged the UN body to follow the ICCPR which Tokyo ratified in 1979.
“The covenant is not supposed to be applied to issues, including the comfort women issue, dating back further than that time (1979),” the report said, quoting an official at the Japanese foreign ministry’s press division.
In 1993, Tokyo offered an apology for the military’s dastardly acts but did not say if the wartime government tolerated such.
Roque said the SC apparently stood by its decision that during World War II, there was no consensus yet in the international community on the absolutely prohibited nature of rape and sexual slavery as war crimes.
On that basis, the Court then said it cannot compel the Philippine government to take up the cudgels for the Filipino women who were forcibly drafted by the Japanese Imperial Army to serve in military brothels.
“With due respect, we do not agree with the High Court’s unequivocal holding that while our clients had indeed suffered a violation of their rights, there is no available remedy for them,” said Roque.
The decision became controversial after its author, Associate Justice Mariano del Castillo, was accused of plagiarism and twisting of sources, resulting in an impeachment complaint against him in 2011.
The complaint failed to prosper at the House of Representatives while the SC, in a separate investigation, said the erasure of footnotes was accidental.
The SC also sanctioned 37 professors of the University of the Philippines (UP) College of Law, led by then Associate Justice Marvic Leonen, for their open letter criticizing del Castillo’s alleged mistakes.
Leonen did not participate in the High Court's deliberation of the elderly women’s appeal.(Sunnex).
x x x."

Wednesday, August 13, 2014

Philippine Government Workers Petition Court Over Benefits Taxes

See - Philippine Government Workers Petition Court Over Benefits Taxes

"x x x .

Pressure on the Philippines' Bureau of Internal Revenue (BIR) to rethink its withholding taxes on an individual's additional monetary benefits, such as 13th-month pay, productivity incentives and bonuses, has been increased by an action brought in the Supreme Court by government employees.

The court action has been introduced in an effort to strike out the provisions of the BIR's Revenue Memorandum Order (RMO) 23-2014, which was issued on June 20 his year and had an immediate effect.

The RMO confirmed that, as employers, all government offices, including government-owned or controlled corporations, are to be considered as the BIR's withholding agents with regard to income tax required to be paid by their employees, and that "compensation for services, in whatever form paid and no matter how called, form part of gross income," includes salaries, fees, wages, emoluments, allowances, taxable bonuses, fringe benefits, taxable pensions and retirement pay.

Included among the only income received by employees in the public sector that is not subject to income tax are annual benefits not exceeding PHP30,000 (USD680). That cap is the subject of current parliamentary bills that generally aim to increase it to PHP75,000, so as to protect employees' purchasing power against the increasing cost of living.

However, the Supreme Court has now been asked to declare taxation of all non-salary benefits received by (the around 1m) public sector employees in the Philippines to be an "unlawful and unwarranted imposition of taxes," and that their collection is "illegal and illicit." It is pointed out that the benefits had remained untaxed for some time, until two months ago.

On the other hand, BIR Commissioner Kim Henares confirmed that the agency, through the RMO, was only clarifying what income is already taxable under the existing tax code. With government bodies giving bonuses and allowances but not withholding the proper tax, no new taxes were involved.

It is also known that, if the public sector employees' petition was to be accepted by the court, the Government could not afford to lose the large amount of revenue that would ensue, particularly in the country's present fiscal deficit situation and with PHP130bn needed to fund reconstruction following typhoon Yolande, and as it bids to improve the Philippines tax-to-gross domestic product ratio to 16 percent by 2016.

x x x."

Palace to SC: Include Jardeleza as Supreme Court nominee

See - Palace to SC: Include Jardeleza as Supreme Court nominee

"x x x.

MANILA, Philippines – Executive Secretary Paquito Ochoa Jr has asked the Supreme Court (SC) to include Solicitor General Francis Jardeleza in the list of nominees for new SC Associate Justice.
Ochoa's 5-page comment before the SC dated Friday, August 8, took the side of Jardeleza in his row with Chief Justice Maria Lourdes Sereno, who, as head of the Judicial and Bar Council (JBC), blocked his nomination to the 15-member High Court.
Widely considered as the President's choice for the post, Jardeleza was excluded in the short list of candidates submitted to President Benigno Aquino III due to integrity issues raised by Sereno.
During the JBC's closed-door deliberations, Sereno allegedly raised a rule requiring a unanimous council vote for candidates faced with minor integrity issues. (READ: SC nominee asks Chief Justice to inhibit from voting)
The rule, Section 2, Rule 10 of JBC-009, reads: "In every case when the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the members of the Council must be obtained for the favorable consideration of his nomination."
Finding this unjust, Ochoa asked the SC to declare unconstitutional or invalid the said rule, saying it goes against the collegial nature of the JBC.
"All that a member needs to do to disqualify an applicant who already obtained a majority vote is to object to his integrity. Thus, the unanimity rule undermines the equal and full participation of the other members in the consideration of the nomination," his comment read.
Ochoa said the JBC was created to eliminate politics in the appointment of Philippine judges. He said the rule goes against the very purpose of the JBC.
"The said provision would defeat the very purpose for which the JBC was created – to shield the appointment process from politics," his comment further read.
Ochoa further argued that the rule will only apply if the one who objects to a nomination is not a member of the JBC.
He explained that when a member objects, a unanimous vote will never be attained. This gives a nominee like Jardeleza no opportunity at all to be nominated, Ochoa pointed out.
Aquino appointees
The SC post in contention was vacated by retired justice Roberto Abad on May 22, 2014. (READ: SC justice Abad retirement paves way for 5th Aquino nominee)
At present, the President has 3 appointees in the SC aside from Sereno: Justices Bienvenido Reyes, Estela Perlas-Bernabe, and Marvic Leonen.
Ochoa was making his comment in relation to a petition filed by Jardeleza himself, asking the High Court to order the inclusion of his name in the JBC shortlist before Aquino makes an appointment.
Aquino has full executive power to appoint the new SC justice from among the JBC shortlisted candidates, which in this case already excludes Jardeleza.
Citing two other JBC rules that provide a candidate the opportunity to comment or explain his side, Ochoa argued that Jardeleza's right to due process was violated by the subject provision cited by Sereno.
"Notably, Section 2, Rule 10, does not allow a candidate/applicant any meaningful opportunity to refute the claims against him," his comment read.
Testimony vs Jardeleza
Jardeleza earlier asked the SC to order Sereno to inhibit from the JBC voting. He said Sereno's participation presents a conflict of interest, as she will act as both his accuser and judge.
But the JBC pushed through with its voting and submitted a list to President Aquino.
Jardeleza then sought the SC's intervention.
The JBC, which recommends appointees to the judiciary, is headed by Sereno. The members include Justice Secretary Leila de Lima and Senator Aquilino Pimentel III as ex officio members, retired CA Justice Aurora Santiago-Lagman representing the private sector, Mejia representing the academe, and Maria Milagros N. Fernan-Cayosa representing the Integrated Bar of the Philippines.
It was JBC member and CA Juctice Lagman who previously informed Jardeleza that questions on his integrity were raised by Sereno during their June 5 and June 16 council meetings.
SC Senior Associate Justice Antonio Carpio faced the JBC to testify against Jardeleza on account of the solicitor general's alleged questionable stand when the government was finalizing its case against China over the disputed West Philippine Sea, a JBC member earlier told Rappler. But the member refused to elaborate.
This is the 3rd attempt of Jardeleza to join the SC. (READ: For 3rd time, SolGen Jardeleza tries to join SC–
x x x."

SC junks anew ‘comfort women’s’ plea for Japan’s apology | Inquirer Global Nation

See -  SC junks anew ‘comfort women’s’ plea for Japan’s apology | Inquirer Global Nation

"x x x.

MANILA, Philippines—The Supreme Court has upheld its 2010 ruling junking the petition of Filipino comfort women to compel the Philippine government to take up their cause of seeking a formal apology from the Japanese government for the abuse they endured during World War 2.

In a full-court resolution on Tuesday, the high court denied motions for reconsideration that the women, collectively called the “Malaya Lolas” or Liberation Grandmothers, filed to appeal the April 28, 2010 ruling of Associate Justice Mariano del Castillo.

The petition was originally filed by 60 grandmothers in 2004.

Among the motions dismissed on Tuesday was a supplemental plea that pegged its appeal on allegations that Del Castillo had plagiarized his decision, including portions supposedly copied from at least three law publications.

Supreme Court spokesperson Theodore Te said in a press briefing on Tuesday, that Del Castillo did not take part in Tuesday’s resolution, along with Associate Justice Marvic Leonen who, as dean of the University of the Philippines law school, signed a July 2010 position condemning the decision along with other faculty members.

The court did not release Tuesday’s resolution.  In Del Castillo’s upheld decision, the Supreme had ruled that “it is not within our power to order the Executive Department to take up the petitioners’ cause.”

The Malaya Lolas are among some 200,000 women in the Philippines, China and Korea who were forced to serve as sex slaves of the Japanese Imperial Army during the war.

In May 2013, the Department of Foreign Affairs condemned remarks from outspoken Osaka Mayor Toru Hashimoto who had said that the comfort women system was a “necessary” part of maintaining the well-being of Japanese soldiers during the war.

The foreign office at the time issued a reminder of “the importance of adhering to the language and tone” of apologies from Japan’s Chief Cabinet Secretary Yohei Kono in 1993 and Japanese Prime Minister Junichiro Koizumi’s 2002.

Koizumi, in a letter to Filipino comfort women, had said that the systematic sexual abuse of women was a “grave affront to the honor and dignity of large numbers of women.”
x x x."

Read more:
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

BIR defines limits of Bank Secrecy Law

See - BIR defines limits of Bank Secrecy Law

"x x x.

Only bank deposits and government securities are subject to the provisions of the Bank Secrecy Law, the Bureau of Internal Revenue said yesterday.

The BIR issued this statement amid strong opposition by the local business community to BIR Revenue Regulation 1-2014, which requires all withholding agents to submit an alphabetical list of payees of income payments subject to creditable and final withholding taxes.  The new regulation also prohibits the lumping into a single amount and account of various income payments and taxes withheld.

The banking and capital markets sector said the new regulations would violate citizens’ rights under bank secrecy.

Under section 2 of Republic Act (RA) 1405 (An Act Prohibiting Disclosure of or Inquiry into, Deposits with any Banking Institution and Providing Penalty Therefore), all deposits of whatever nature in banks or banking institutions in the Philippines and investments in government bonds are absolutely confidential in nature.

Deposits refer to money or funds placed with a bank that can be withdrawn on the depositor’s order or demand, such as deposit accounts in the form of savings, current and time deposits while investments in government bonds refer to investments in bonds issued by the Government of the Philippines, its political subdivision and its instrumentalities.

Government bonds are debt securities which are unconditional obligations of the State, and backed by its full taxing power.  They include include Treasury bills, treasury notes, retail treasury bonds, dollar linked peso notes and other risk free bonds.

The BIR pointed out that corporate bonds and  purchases of shares of stocks, receivables of business, and foreign exchange are not covered by the bank secrecy law.

The rule is, interest income paid to bank deposits is subject to a final withholding tax. For those claiming exemption from taxes on interest income on deposits, they should prove that they are entitled to said exemption; otherwise, the said income is subject to the final withholding tax,” the BIR said.

The BIR likewise insisted that the requirement for the business, banking and financial sectors to withhold and provide alpha lists has been in place as early as January 1997.

RR No. 1-2014, issued in December 17, 2013, only further tightened the requirements by mandating taxpayers to list down each person to whom income payment was made.

x x x."

Tuesday, August 12, 2014

Rule on Electronic Evidence applies to criminal cases, too. - G.R. No. 204894, March 10, 2014 - PEOPLE OF THE PHILIPPINES, Appellee, v. NOEL ENOJAS Y HINGPIT, et. al.


"x x x.

As to the admissibility of the text messages, the RTC admitted them in conformity with the Court’s earlier Resolution applying the Rules on Electronic Evidence to criminal actions.15 (A.M. No. 01-7-01-SC, Re: Expansion of the Coverage of the Rules on Electronic Evidence, September 24, 2002. ). Text messages are to be proved by the testimony of a person who was a party to the same or has personal knowledge of them.16 Here, PO3 Cambi, posing as the accused Enojas, exchanged text messages with the other accused in order to identify and entrap them. As the recipient of those messages sent from and to the mobile phone in his possession, PO3 Cambi had personal knowledge of such messages and was competent to testify on them.

x x x."



" x x x.

The defense points out that the prosecution failed to present direct evidence that the accused Enojas, Gomez, Santos, or Jalandoni took part in shooting PO2 Pangilinan dead.11 This may be true but the prosecution could prove their liability by circumstantial evidence that meets the evidentiary standard of proof beyond reasonable doubt. It has been held that circumstantial evidence is sufficient for conviction if: 1) there is more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 12crallawlibrary

Here the totality of the circumstantial evidence the prosecution presented sufficiently provides basis for the conviction of all the accused. Thus:chanRoblesVirtualawlibrary

1. PO2 Gregorio positively identified accused Enojas as the driver of the taxicab suspiciously parked in front of the Aguila Auto Glass shop. The officers were bringing him with them to the police station because of the questionable documents he showed upon query. Subsequent inspection of the taxicab yielded Enojas’ mobile phone that contained messages which led to the entrapment and capture of the other accused who were also taxicab drivers.

2. Enojas fled during the commotion rather than remain in the cab to go to the police station where he was about to be taken for questioning, tending to show that he had something to hide. He certainly did not go to the police afterwards to clear up the matter and claim his taxi.

3. PO2 Gregorio positively identified accused Gomez as one of the men he saw running away from the scene of the shooting.

4. The text messages identified “Kua Justin” as one of those who engaged PO2 Pangilinan in the shootout; the messages also referred to “Kua Justin” as the one who was hit in such shootout and later died in a hospital in Bacoor, Cavite. These messages linked the other accused.

5. During the follow-up operations, the police investigators succeeded in entrapping accused Santos, Jalandoni, Enojas, and Gomez, who were all named in the text messages.

6. The text messages sent to the phone recovered from the taxi driven by Enojas clearly made references to the 7-11 shootout and to the wounding of “Kua Justin,” one of the gunmen, and his subsequent death.

7. The context of the messages showed that the accused were members of an organized group of taxicab drivers engaged in illegal activities.

8. Upon the arrest of the accused, they were found in possession of mobile phones with call numbers that corresponded to the senders of the messages received on the mobile phone that accused Enojas left in his taxicab.13
        x x x."

Is electronic evidence admissible in criminal cases? | Inquirer Business

See - Is electronic evidence admissible in criminal cases? | Inquirer Business

"x x x.

On Aug. 1, 2001, the Rules on Electronic Evidence (REE) went into effect.
The REE applies whenever a piece of electronic data message or electronic evidence is offered or used as evidence.
“Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means.
“Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.
Electronic documents include digitally signed documents and any printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document.
For purposes of the REE, electronic document is the same as electronic data message.
Some examples of electronic data message or electronic evidence are files in computer hard drives and diskettes, computer 
printouts, text messages (SMS), Facebook chats, multimedia messages (MMS) and CCTV footage.

When the REE first went into effect, its applicability was limited to “civil actions and proceedings, as well as quasi-judicial and administrative cases.” (Section 1, Rule 1).
Notably, criminal cases were excluded from the coverage of the REE.

However, about a year thereafter, or on Sept. 24, 2002, the Supreme Court issued a resolution expanding the coverage of the REE to criminal cases. The resolution amended Section 1, Rule 1 of the REE as follows:

“SEC. 2. Cases covered.—These Rules shall apply to all criminal and civil actions and proceedings, as well as quasi-judicial and administrative cases.”

The amendment took effect on October 14, 2002 following its publication in the Manila Bulletin, a newspaper of general circulation, on Sept. 27, 2002.

However, about 10 years after the amendment, the Supreme Court, in  Ang v. Court of Appeals (G.R. No. 182835,  April 20, 2010), held that the REE does not apply to criminal actions.  In this case, the accused, Rustan Ang, was charged under R.A. 9262 (Violence against Women & Children Act) for sending an MMS to his ex-girlfriend (Irish Sagud) consisting of a picture of a naked woman with legs spread and with her face superimposed on the figure.  After she got the obscene picture, Irish got other text messages from Rustan, boasting that it would be easy for him to create and send through the Internet similarly scandalous pictures of her.
Rustan Ang questioned the admissibility of the obscene picture which he sent as MMS to the complainant. He claimed that since the MMS was not authenticated in accordance with the REE, it was inadmissible as evidence against him.
The Supreme Court held that Rustan Ang waived the objection as he did not raise it at the time the electronic message was offered in evidence.  The High Court added: “Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings and administrative proceedings.”
Significantly, the Ang case made no mention of the 2002 amendment extending the coverage of the REE to criminal cases.

The dilemma
So there’s the dilemma. Through a duly published amendment way back in 2002, the Supreme Court expressly stated that the REE applies to criminal actions. Yet, about 10 years thereafter, the court, in the Ang case, expressly held that it does not apply to criminal cases.
Some say that the quoted statement from Ang is just obiter dictum. Others disagree. Whatever it is, the seeming confusion must be clarified as early as possible. For example, there are the computer files of Benhur Luy wherein he listed public officials who are allegedly part of the PDAF scam by receiving part of the money from Janet Napoles. Will these computer files, or their printouts, be admissible in the criminal cases against the concerned public officials? Also, there are CCTV footages establishing the commission of crimes by their perpetrators. Are these footages admissible in evidence against those accused of the crimes? If we follow the 2002 amendment, they are, but not if we follow the Ang case.
These examples demonstrate the practical implication of the issue.

(The author Atty. Francis Lim is a senior partner of the Angara Abello Concepcion Regala & Cruz Law Offices (AccraLaw) and is a law professor in the Ateneo Law School. The views in this column are exclusively his, and should not be attributed in any way to the institutions with which he is currently affiliated.)

x x x." 

Read more:
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

Friday, August 8, 2014

Pretrial brief required in ejectment, sumary procedure cases. -

See  -

"x x x.

Third, the OCA belies the complainants’ allegation that the respondent entertained Angangco’s oral motion to declare defendants in default. While the complainants were correct that a motion to declare defendants in default is a prohibited pleading under the 1991 Revised Rules on Summary Procedure; the respondent, in issuing the assailed joint order dated February 26, 2009, did not rule on the basis of the oral motion but relied on Section 8, Rule 70, in relation to Section 6, Rule 18 of the Rules of Court, which provides:

Sec. 8. Preliminary conference; appearance of parties. – Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. 

The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of the complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross- claims shall be dismissed. 

If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. 

Sec. 6. Pre-trial brief. - The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others: 
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. 
And even assuming that the respondent erred in issuing the assailed joint order, the OCA opines that errors committed in the exercise of adjudicative functions cannot be corrected through administrative proceedings where judicial remedies are available; that there must be a final declaration by the appellate court that the assailed order is manifestly erroneous or impelled by ill-will, malice or other similar motive.

x x x."

Lawyer on massacre bribes: Bring it to Ombudsman | ABS-CBN News

See - Lawyer on massacre bribes: Bring it to Ombudsman | ABS-CBN News

"x x x.

MANILA - A private prosecutor in the Maguindanao massacre trial believes other lawyers who accuse government prosecutors of taking bribes should bring the matter to the Ombudsman or the Integrated Bar of the Philippines.
Speaking to ANC, lawyer Harry Roque said the bribery allegations of Attorneys Nena Santos and Prima Quinsayas should be substantiated and brought to the proper forum.

"If there is bribery of a public official, she should file before the Ombudsman. She can also file the appropriate complaint before the Supreme Court or the Integrated Bar of the Philippines because all lawyers are officers of the court. Unless these charges are substantiated, it appears to be derailing already the prosecution," he said.

Roque is the counsel of heirs of 15 victims in the massacre; Quinsayas represents families of 17 massacre victims, while Santos represents 27 complainants, including Maguindanao Gov. Esmael Mangudadatu, whose wife was among the 58 killed in the Nov. 23, 2009 massacre.
Santos earlier claimed that some state prosecutors are receiving bribes from the accused in the case.
She said this was after she turned down a P300 million bribe offer to drop the case.
Santos said she has evidence to prove her allegations, but added that it is not yet time to disclose these.
In the interview, Roque said he exposed attempts in the past not to include a possible trial witness in the Witness Protection Program as well as overtures to negotiate a settlement between the Ampatuans and some of the families of the massacre victims.
He said he also called out then Justice Secretary Alberto Agra for clearing two members of the Ampatuan clan in the massacre. He later filed a disbarment case against Agra.
Roque challenged Santos to do the same, saying only the Ampatuans are benefiting from the rift among the prosecutors.
"When you have alleged allies saying that we will lose and the evidence is not sufficient, we don't need an adverse party," he said.
In a press conference Wednesday, Santos said 44 out of 58 clients are objecting to the Department of Justice's move to rest the evidence.
She lambasted Atty. Harry Roque who has said the bribery allegations would only derail the trial. "Lahat kami tutol sa resting of evidence. Si Harry Roque hindi namin kasama," she said.
Atty. Gemma Oquendo, who lost her father and sister in the massacre, said she is hurt by the statement of Justice Undersecretary Francisco Baraan that they are only interested in the civil aspects of the case and in receiving compensation for their losses.
"Ang panawagan namin kay PNoy, magsagawa ng independent probe sa bribery accusations. Hindi lang sa prosecution, pati sa ibang biktima," she said.
The group, which is led by Maguindanao Governor Toto Mangudadatu, called on the justice department to rethink its move to rest evidence in the case.
x x x."

BBC Documentary: Philippines Beautiful People, Beautiful Country 2014 - YouTube

See - BBC Documentary: Philippines Beautiful People, Beautiful Country 2014 - YouTube

Philippines: The Paris of Asia
The Philippines featured at British Broadcasting Corporation (BBC) documentary entitled, Philippines Beautiful people, Beautiful.

Thursday, August 7, 2014

Secretive SC; Matters of consideration

See - Matters of consideration

"x x x.

The so-called “last bulwark of democracy,” the third co-equal branch of government, seems to be a cloaked society, wary of the prying eyes of media and the public. But no one in government can or should hide in the shadows. Not when the constituents are demanding transparency and accountability. No one should be beyond scrutiny. Most of all, no one should be above the law.
The Supreme Court in particular is ultra-sensitive to criticism and fiercely protective of its reputation and turf. The combination of Mafia-like omerta with ex cathedra authority is disquieting. It cultivates a mystique that projects the illusion of invincibility and promotes an air of infallibility.
Even now, with newblood infused in the High Tribunal, the archaic traditions live on. If they had their way, no one should question their decisions.
x x x."

Wednesday, August 6, 2014

BIR rule seen to trigger capital flight | Inquirer Business

See - BIR rule seen to trigger capital flight | Inquirer Business

"x x x.

Nine of the country’s most influential business groups—including the entire banking and capital market industry—have warned of capital flight arising from a new Bureau of Internal Revenue (BIR) regulation requiring the submission of an alphabetical list (alphalist) of payees of income payments subject to withholding taxes.

Apart from being “prejudicial” to investors and infringing on the right to privacy, a seven-page position paper drawn up by the business sectors dated July 21 and sent to the BIR last week said the alphalist regulation was in violation of the principle of uniformity of taxation and existing legal requirements, was “impossible” to comply with and would “not serve any useful purpose.”

Instead, the groups warned that the selldown on preferred shares has started, resulting in P2.12 billion in net foreign selling in the first semester even when the overall market had posted a net foreign buying of P45.67 billion for the period. The paper reported that while the total market capitalization of the local stock market had grown by 11.9 percent so far this year, the market capitalization of preferred shares had retreated by 3.12 percent.

“The behavior exhibited by the market is a clear message that investors would rather dispose of preferred shares and forgo the coupon payments rather than being subjected to the alphalist requirement of the BIR,” the paper said.

Calling for the revocation of the BIR ruling along with a subsequent circular from the Securities and Exchange Commission, the following institutions signed the position paper through their top officials: Bankers Association of the Philippines; Employers Confederation of the Philippines; Federation of Filipino-Chinese Chambers of Commerce and Industry Inc.; Fund Managers Association of the Philippines; Investment Houses Association of the Philippines; Philippine Association of Securities Brokers and Dealers Inc.; Philippine Chamber of Commerce and Industry; the Philippine Stock Exchange; and the Trust Officers Association of the Philippines.

BIR Revenue Regulation 1-2014 requires all withholding agents to submit an alphalist of payees of income payments subject to creditable and final withholding taxes. It also prohibits the lumping into a single amount and account of various income payments and taxes withheld.

As applied to dividend income payments by listed companies to their investors, it also prohibited listed companies from naming PCD Nominee Corp.—the entity holding the title to all “uncertificated” shares traded in the stock market—as the payee of dividends. This was interpreted by some listed companies, through their transfer agents, to require the disclosure of the names, addresses and tax identification numbers (TINs) of the investors.

The groups warned that these regulations, which were issued without the benefit of prior consultations with industry practitioners, were already resulting in either forced retention of dividends or imposition of excessive withholding tax dividend payments, both of which were contrary to law.

The paper said these regulations were issued in violation of existing legal requirements, citing the Administrative Code of 1987, which provided that an agency, as far as practicable, must publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule.

It also argued that the right to privacy was paramount. They said that brokers and custodians in the equities market, for instance, had a duty of confidentiality to their clients. For custodian banks, this duty is outlined in their custody agreements with clients while for brokers, this duty is set out in client agreements as well as in the rules (Section 8 Article V) of the Capital Market Integrity Corp.

The groups also reminded the BIR that disclosure by mutual funds and banks of the identities of their clients would be in violation of the Bank Secrecy law.

x x x."

Read more:
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

House probes judiciary fund despite SC snub

See - House probes judiciary fund despite SC snub

"x x x.

MANILA, Philippines – The House of Representatives opened its probe into the Judiciary Development Fund (JDF) despite the refusal of the Supreme Court (SC) to send any representative to a hearing on Tuesday, August 5.
The absence of SC representatives, however, did not stop allies of President Benigno Aquino III from firing the initial salvo against the JDF, which they said they would study to either keep, amend, or altogether abolish.
Iloilo Representative Niel Tupas Jr, who chairs the House justice committee, cited findings by state auditors that indicated alleged questionable use or handling of the JDF, over which the Chief Justice has sole discretion.
In a letter sent to Speaker Feliciano Belmonte Jr, Chief Justice Maria Lourdes Sereno described the hearing scheduled Tuesday as "premature" and "inappropriate." Invoking the principle of separation of powers between co-equal branches of government, Sereno declined the invitation to appear before the House committee on justice.
Other Supreme Court employees who were invited to the hearing – including Court Administrator Midas Marquez, Deputy Court Administrator Raul Villanueva, and Deputy Clerk of Court and Chief of Office Corazon Ferrer-Flores – did not show up either.
The House committee on justice is, however, giving the Chief Justice a chance to reconsider her decision.
Tupas said there is no reason for the Supreme Court to snub the hearing. "Of course, there's separation of powers. But in the past, the judiciary has cooperated. When we tackled amendments to the Sandiganbayan law, the justices came here. There is no reason for them not to cooperate when it is now the fund of the judiciary in question."
'Valid concerns' acknowledged
Tupas is the author of the bill seeking to abolish the JDF, replacing it with the Judiciary Support Fund, a scheme where the power to allocate judiciary funds will be transferred to Congress.
Another bill, authored by Ilocos Norte Representative Rodolfo Fariñas, seeks to amend Presidential Decree 1949, which created the JDF. Like Tupas' bill, Fariñas' proposal want the fund collected by the lower courts to be transmitted to the treasury instead of going straight to the high court.
The bills were filed in the aftermath of the SC's back-to-back decisions declaring unconstitutional lawmakers' Priority Development Assistance Fundand Malacañang's controversial spending program that benefitted lawmakers. (READ: Where did DAP funds go?)
A motion for reconsideration on the Disbursement Acceleration Program is still pending before the high court.
In her letter to Belmonte, Sereno said: "My view of the manner, timing and context in which a Committee of the House is proposing to inquire into the Judiciary Development Fund (JDF), as indicated in its letter, is that they leave much to be desired, and at this point, do not seem to be fully cognizant of the kind of healthy relationship that should exist between, on one hand, the House of Representatives, and on the other, the Supreme Court."
But the Supreme Court is not closing its doors. In her letter, Sereno asked for more time to consult her colleagues "on how best the Judiciary can meaningfully participate in the valid concerns of the House without sacrificing judicial independence."
COA findings
Only representatives of the Commission on Audit (COA) and the Department of Budget and Management attended the hearing.
Under Presidential Decree 1949, the Chief Justice has the "sole exclusive power" to allocate the JDF and authorize its disbursements and expenditures.
An average of P1 billion ($23 million) is collected for the JDF from docket fees in lower courts and other sources. The SC is supposed to use 80% of the money for the cost of living allowances of employees and 20% for the improvement of courts.
Opening salvo
In response to questions made by Cavite Representative Elpidio Barzaga, COA admitted that it had only conducted an annual audit of the JDF – with validation on a monthly basis, instead of quarterly as prescribed by law.
The committee asked COA to turn over all existing audit records since 1999 – the year when the SC "expanded" the source of the JDF to include other fees.
PD 1949 only intended to source JDF from mandated increases in legal fees, Fariñas said, but the SC released a circular in 1999 "effectively amending the decree" to expand sources of the JDF.
Fariñas also questioned the wisdom of giving the Chief Justice sole discretion over the JDF.
"It is the Chief Justice that collects, allocates, and disburses the JDF. All functions that were supposed to be separate were brought together," Fariñas said.
Tupas, meanwhile, questioned the very nature and relevance of the JDF itself, a Marcos-era law that has remained unamended for 30 years.
"When we file cases, part of it goes to the JDF. If we seek justice, part of the money goes to the JDF?" Tupas said. "Instead of encouraging the court to provide free services, does it not encourage an increase in legal fees?
Citing the 2012 Commission on Audit report on the JDF, Tupas raised the following questions, among others, on the judiciary fund:
  • Why was P300 million from the JDF deposited to a high-yield investment in Land Bank?
  • Why was the JDF used to provide loans? The COA report showed allocations for loans on motorcycles, computers, and hand guns.
  • Is it true that the unfilled position savings of the SC in 2003 is P3 billion? Is it true that the amount became allowances and bonuses? Why should this be declared as allowances when halls of justice in other areas are damaged or nonexistent?
  • Based on the COA report, bail bonds have amounted to P2.7 billion. How much of this was confiscated, and did that amount go to the JDF?
  • Based on the COA report, the cumulative balance of the JDF was P1.3 billion as of June 2014. Where did the money go, given that the average collection for the JDF is P1 billion per year?
Proposals from Congress to amend or abolish the JDF has been criticized by some sectors for being unconstitutional because it would usurp the high court's fiscal autonomy.
But Fariñas said the House proposals do not mean to attack this principle.
"Fiscal autonomy is clearly defined by the Constitution. The fiscal autonomy of the Supreme Court means they can't get new appropriation that is lower than last year's and the release is automatic and regular," he said.
To shed light on the matter, constitutional experts will be invited to the next hearing.
Umali, for his part, said the SC must also practice self-evaluation.
"The Supreme Court ruled in the case of the DAP that the executive branch usurped the power of the purse of Congress. Why can't they see what they're doing through the JDF and declare JDF as unconstitutional? This is a practice of double standard that should not be allowed in this government," Umali said.
x x x."

Tuesday, August 5, 2014

Notary public perpetually disqualified - 6470.pdf

See - 6470.pdf

"x x x.

A notary public should not notarize a document unless the persons who signed appeared before the said notary public to attest to the contents and truth of what are stated therein.27 Thus, in acknowledging that the parties personally came and appeared before her, respondent also violated Rule 10.0128 of the Code of Professional Responsibility and her oath as a lawyer that she shall do no falsehood. -

Certainly, respondent is unfit to continue enjoying the solemn office of a notary public. In several instances, the Court did not hesitate to disbar lawyers who were found to be utterly oblivious to the solemnity of their oath as notaries public.30 Even so, the rule is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court and the Court will not disbar a lawyer where a lesser penalty will suffice to accomplish the desired end.31 The blatant disregard by respondent of her basic duties as a notary public warrants the less severe punishment of suspension from the practice of law and perpetual disqualification to be commissioned as a notary public.

WHEREFORE, respondent Atty. Juvy Mell Sanchez-Malit is found guilty of violating Canon 1 and Rules 1.01, 1.02, and 10.01 of the Code of Professional Responsibility as well as her oath as notary public. Hence, she is SUSPENDED from the practice of law for ONE YEAR effective immediately. Her notarial commission, if still existing, is IMMEDIATELY REVOKED and she is hereby PERPETUALLY DISQUALIFIED from being commissioned as a notary public.

x x x."

Lawyer suspended 6 months; influence peddling. - 8108.pdf

See - 8108.pdf

"x x x.

The way respondent conducted himself manifested a clear intent to gain special treatment and consideration from a government agency. This is precisely the type of improper behavior sought to be regulated by the codified norms for the bar. Respondent is duty-bound to actively avoid any act that tends to influence, or may be seen to influence, the outcome of an ongoing case, lest the people’s faith in the judicial process is diluted.

The primary duty of lawyers is not to their clients but to the administration of justice. To that end, their clients’ success is wholly subordinate. The conduct of a member of the bar ought to and must always be scrupulously observant of the law and ethics. Any means, not honorable, fair and honest which is resorted to by the lawyer, even in the pursuit of his devotion to his client’s cause, is condemnable and unethical.22.

Rule 1.02 states: "A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system." Further, according to Rule 15.06, "a lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.” The succeeding rule, Rule 15.07, mandates a lawyer “to impress upon his client compliance with the laws and the principles of fairness.” 

Zeal and persistence in advancing a client’s cause must  always be within the bounds of the law.23 A self-respecting independence in the exercise of the profession is expected if an attorney is to remain a member of the bar. In the present case, we find that respondent fell short of these exacting standards. Given the import of the case, a warning is a mere slap on the wrist that would not serve as commensurate penalty for the offense.

In Sylvia Santos vs. Judge Evelyn S. Arcaya- Chua, the Court saw fit to impose a six-month suspension against a judge who likewise committed acts of influence peddling when she solicited 100,000.00 from complainant Santos when the latter asked for her help in the case of her friend Emerita Muñoz, who had a pending case with the Supreme Court, because respondent judge was a former court attorney of the high court. 24 We find that the same penalty is appropriate in the present case.

WHEREFORE, in view of the foregoing, Atty. Felisberto L. Verano, Jr. is found GUILTY of violating Rules 1.02 and 15.07, in relation to Canon 13 of the Code of Professional Responsibility, for which he is SUSPENDED from the practice of law for six (6) months effective immediately. This also serves as an emphatic WARNING that repetition of any similar offense shall be dealt with more severely.

Let copies of this Decision be appended to the respondent’s bar records. The Court Administrator is hereby directed to inform the different courts of this suspension.

x x x."