Friday, January 30, 2015

The Fallen 44

Today is the national day of mourning for The Fallen 44.

Their heroic death will forever haunt P-Noy’s political image and peace of mind.

History will not be kind to him.

History will punish him.

Today, the Filipino people mourn two deaths: (a) the death of The Fallen 44 and (b) the death of P-Noy’s leadership.

Two questions bother the Filipinos:

1.      DILG Sec. Mar Roxas and Acting PNP Chief Leonardo Espina were not informed or consulted during the planning and implementation phases of “Operation Wolverine”.

They were bypassed and ignored, apparently with the knowledge and consent of P-Noy and his Executive Secretary (who is the head of the Presidential Anti-Crime Commission [PACC]).

The question is: Will Roxas and Espina have the courage and dignity to resign from their posts to protest the irresponsible leadership of P-Noy and his Executive Secretary?

2.    The in-house Board of Inquiry to be created by the Office of the President, the Philippine National Police (PNP), and the National Police Commission (Napolcom) is expected to be composed of loyal subordinates of the President and/or the Liberal Party picked from his Cabinet, the PNP, or the Armed Forces of the Philippines (AFP).

Will the Board act with impartiality?

Will the Board have the courage to investigate, expose and oppose the direct or indirect liability and guilt of its Commander-in-Chief?

We pray for one thing: May the heroic death of  The Fallen 44 not be exploited by warmongers in the Government, the Mass Media and the Military-Industrial Complex to kill the Peace Process in Mindanao.

Even the souls of The Fallen 44 would wish for peace in Mindanao.

Atty. Manuel J. Laserna Jr.
January 30, 2015

Las Pinas City

Thursday, January 29, 2015

MEL STA.MARIA | SC Estrada ruling on absolute pardon exponentially raises impunity

See - MEL STA.MARIA | SC Estrada ruling on absolute pardon exponentially raises impunity

"x x x.
The online news portal of TV5
Recently, the Supreme Court characterized the clemency granted to former President Joseph Estrada as an “absolute pardon.” This means that, unless otherwise provided by the Constitution, the principal punishment of incarceration  and all accessory penalties such as disqualification from public office have been erased  - as if they were not imposed at all. The decision was not unanimous. Three magistrates, including the Chief Justice, dissented.

If this decision attains finality without any modification, this judgment might forever   mar   the reputation of the Supreme Court. Why? Because it exponentially raises the degree of impunity in our country for criminal acts committed by public officials.  

Executive Pardon is an extraordinary presidential prerogative.  Rarely can the exercise of such power of clemency  be questioned. Legally, what it actually does is to disturb or halt the effects of justice lawfully administered by a separate branch of government, the Judiciary. 

But if there is an ambiguity in  the pardon’s effects, the power is not questioned but merely its application. Is the pardon absolute or conditional? Answering that question is important because, if  the pardon  were absolute, the greatest freedom is irrevocably granted, but if it were conditional,  suffering the consequences of a crime is revivable. The vagueness of the wordings of  the Estrada-pardon must be resolved in favor of the People of the Philippines which filed the case and successfully proved, beyond reasonable doubt, that the former public official, while  in his high public office,  committed a crime by amassing  ill-gotten  wealth in the amount of more than P50,000,000.  The ambiguity must be resolved in favor of conditional pardon.

This must be so for, after all, the Constitution which provides the power of executive clemency emanates from  the  sovereign people. There can be no other greater vindication of the people’s violated right, which both the Executive and Judicial Department are duty-bound to uphold, than for a criminal to know that crime does not pay.  

But for us, the citizenry, more than just being concerned about the legal entanglements of an executive clemency between the Executive and Judicial departments, it means that the accountability of the person pardoned is  obliterated. And if one considers that the person involved was no less than the President of a country, it simply means that, subject to exceptions,  said President is no longer answerable to the people for the despicable crime he was found guilty of.  

This smacks of IMPUNITY because no less than an executive pardon - a privilege granted by the people to the Office of the President – has been used as the very instrument to frustrate the right of the people to hold accountable a person who holds the highest public position in the country.
And now we have another branch of the government, the Judiciary personified by the Supreme Court, stating that even the very condition that enabled former President Estrada to be free of any accountability to the people for the crime of Plunder no longer exists precisely because the pardon granted to him was absolute, not conditional.

From the wordings of the pardon granted by then President Gloria Macapagal Arroyo, there is no question in my mind that it is a conditional, and not an absolute pardon.  

The third “WHEREAS” clause (which explains why the executive pardon was given) is explicit. The document categorically states  that “Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office.”  Considering that PLUNDER was the offense involved in the pardon, this  “Estrada-commitment”  was  the most important consideration  for the grant of  clemency.  After the WHEREAS clauses, the instrument of pardon provided:

In view hereof and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive clemency to Joseph Ejercito Estrada, convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. He is hereby restored to his civil and political rights.

The phrase “In view hereof” simply means because of what has been expressed in this instrument.  And to reiterate, one of the explanations and intentions in the instrument of pardon was that Estrada will “no longer seek any elective position or office.” And surely Estrada knew such condition because he  accepted the pardon and all its enunciations.  
The  restoration  of  “his civil and political rights” was therefore delineated by  one  limitation  known to Estrada  - that he “publicly committed to no longer seek any elective position or office.”  This consideration is, in legal effect, a resolutory condition on the grant of clemency

In law, a resolutory condition is a kind of condition which effectively causes the right granted to cease to exist once that condition is broken. Thus, if I enter into a contract stating that you can live in my mansion for as long as you do not go abroad, you can live immediately in the mansion upon acceptance of the contract, but if you go to the US, even for a short visit,  the contract is resolved or extinguished and you forfeit your right to live in the mansion.   The right to be in the mansion will be taken away from you.

In the case of Estrada, he ran for public office. The resolutory condition happened. He  committed the prohibited undertaking which was the consideration of the pardon.  It did not even matter whether he was elected or not. The pardon lost its effect even before he took office as Mayor. Its   cessation commenced when Estrada filed his application to “seek” elective office. The consequences of the criminal judgment of plunder against him  as determined by the Sandiganbayan must be  fully restored and implemented as if the pardon never existed.

Plunder is the highest  and most evil crime a public official can commit.  There can be no other  more serious offense  brazenly manifesting betrayal of the public trust. Correspondingly, the Presidency is the highest  government office. The people  elect the President   trusting that he will serve  honestly. There can be no other official more powerful than the President.

If the highest crime is committed by the highest official, the highest penalty must be meted out in its highest application. And if, in his favor, he is  extended  executive pardon, any resolution of its  ambiguity must  always be resolved  in  favor, not of the greatest grant of liberty, but  of the least transmission of civil and political rights. For that  is the  pervading spirit of the  Constitution - one of  public accountability and not of impunity. It cannot  simply be “business as usual.”  
x x x."

Wednesday, January 28, 2015

Bar Exam Tips | Associate's Mind

See - Bar Exam Tips | Associate's Mind

"x x x.

If you have to go to a different city to take the Bar, you should have been in your hotel room since last night. Hopefully you already did this one, otherwise too late. Why? X-factor. Something random you can’t predict, flat tire, whatever. True story: I convinced my close friends who took the Bar with me to check in two days early. When we checked in, one of them got a smoking room (he was a non-smoker) and they were at capacity – so they couldn’t put him in a different room until the next day. He said it was awful and woke up with a horrible headache. But since he was there a day early, he could shrug it off and still be ready for the Bar.
So make sure you have a full 24 hours to get comfortable before you take the Bar. Plus  it gives you the extra time to find the test site, explore the area, find restaurants, etc.
Don’t use this extra time to study more. It’s too late at this point. There’s nothing you going to magically cram into your brain at this point. There is going to be no sudden “aha!” moment where you finally figure something out. You’re done. Just try and relax as much as you can. Along those lines, stock up on comfort food. Whatever are your goto drinks and snacks, make sure to get plenty of them.  It will make you feel better after the test session.
Speaking of after the test session, don’t discuss it with your friends. No point in second guessing your decisions and obsessing over what’s been done. Just skip the topic all together. Some people go into complete isolation mode and don’t want to interact with anyone – which is fine if you are one of those people. Personally, I still hung out with people I knew, we all just agreed to table any Bar discussion.
Lastly, on the night before your final session, go to a bar and kick back a few beers with your aforementioned law school buddies. It will help relieve some tension. Me and the four other people who did all passed. Seriously, if you’ve taken the time and prepared, you’re likely going to pass. Just go in there and make it happen.
Good luck!
x x x."

7 Ways to Screw Up Your Will | Johnson Vines Legal Blog (US Law)

See - 7 Ways to Screw Up Your Will | Johnson Vines Legal Blog

"x x x.

1. Fail to execute will correctly.

The most important part of drafting a will is executing it correctly. Arkansas statutes prescribe an unforgiving method for bringing your will into legal existence. Get this wrong and your will at best is nothing more than a piece of paper and at worst a drag-out legal fight.

2. Fail to mention all children.

Arkansas adheres to the traditional pretermitted children rule, which essentially states that if any surviving children are not mentioned in the will, the surviving child will receive what they would have received if there had been no will—that is to say, under the law of intestacy.
In other words, suppose you die and are survived by your spouse and a five-year old boy. Your will directs all your property to go to your spouse, but makes no mention of your boy. In such a situation, subject to a few exceptions, your boy would basically inherit your whole estate—not your spouse. Arkansas law assumes that if you fail to mention a child in your will, you forgot to update your will after you had your child.
The nightmare scenario is the 27-year-old son whom you leave out of your will because he is a jerk and always has been. Your will could direct your estate worth millions to go to your wife, your elderly dad, your charity, and so on, but fail to specifically disinherit your punk son, and he will basically get everything.
This rule also applies to grandchildren, so it’s important to mention them as well.

3. Fail to dispose of all property.

No will should ever be executed without a “residue clause.” A residue clause disposes of all property that you fail to identify specifically in your will. Any property that is not disposed of in your will is governed by the law of intestacy—in other words, the Arkansas legislature determines where your property goes. Good luck with that.

4. Fail to deal with old wills.

A few months ago, I wrote about the problems of the Nelson Mandela estate. His biggest problem was his most recent will’s failure to properly deal with older wills. Some attorneys draft what are called codicils, which are simply updates to an existing will. For example, a codicil may simply say, “Paragraph 5 of my January 23, 2011 will is updated to read as follows . . .” Legally, this is fine, but it opens the door to numerous problems. My preference is to draft a clean will, destroy the old will, and include the line “this will invalidates all previous wills and codicils.” Do this and you’ll virtually never run into problems with old wills.

5. Fail to prioritize assets.

In the absence of guidance from your will, Arkansas statutes prescribe a priority of assets in the event your estate has to be liquidated to satisfy creditors’ claims. I bet you can already see how this is a potential problem. Suppose Johnny gets your 200-year-old piano, Suzy gets your Cadillac, and Barry gets your fishing boat. Which property should be sold in the event that property needs to be sold to pay off, for example, your remaining medical debts?
If the piano gets sold, Johnny could get nothing. If the Cadillac is sold, Suzy could get nothing. If the fishing boat is sold, Barry could get nothing. And because you didn’t hire a lawyer, Johnny, Suzy, and Barry will each be hiring a lawyer.

6. “Share and share alike”.

“I hereby give my entire estate, share and share alike, to my brothers, Tom Smith and Larry Smith.” Essentially, your intent is that your two siblings will each get half the estate. This is a very common provision and it sounds pretty innocuous. But this provision runs into a similar problem as #5 above. What about your highly desirable things that don’t divide in half? Who gets your Smith & Wesson? Who gets your vacation home? Who gets that stock you bought last year that has tripled in value? For crying out loud, who gets your adorable basset hound?
Tom may want one or the other of these properties sold, Larry may want one or the other intact. And, once again, because you skipped on calling a lawyer, Tom and Larry will each have to call theirs.

7. Lose your will.

This may sound silly, but losing a will is more common that you may think. In order to probate a lost will, Arkansas statutes require two witnesses who can clearly and distinctly testify to its provisions. However, under the statute, a copy of the original will counts as one witness. This is great, not only to satisfy the requirement of one of the two witnesses, but also to refresh the memory of the second witness.
When I help individuals execute their wills, my practice is to keep a copy in my file and on my dropbox. This provides extra protection in the event your will cannot be found, or is inadvertently destroyed.
These are but a few of the mistakes I’ve seen in executing wills. There are lots more, but most are preventable if you know what you’re looking for.
x  x x."

SC voids GMA order appointing CSC chair to GOCC boards | ABS-CBN News

See - SC voids GMA order appointing CSC chair to GOCC boards | ABS-CBN News

"x x x.

MANILA, Philippines - The Supreme Court (SC) has nullified and voided an order issued by former President Gloria Macapagal Arroyo that designated the Civil Service Commission (CSC) chairman to sit in the board of trustees/directors of the Government Service Insurance System (GSIS), Philippine Health Insurance Corporation (Philhealth), Employees' Compensation Commission (ECC), and the Home Development Mutual Fund (Pag-Ibig Fund).

In a decision penned by Associate Justice Lucas Bersamin, the high court ruled that Arroyo's Executive Order No. 864, dated February 22, 2010, is unconstitutional for violating sections 1 and 2 of Article IX-A of the 1987 Constitution which state that "Section 1: [t]he Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit:" and "Section 2: [n]o member of a Constitutional Commission shall, during his tenure, hold any other office or employment... in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries."

The ruling was in favor of petitioner Dennis A. B. Funa, who argued that the order, which allowed CSC chairman Francisco Duque to sit in the boards of the mentioned agencies, violates the independence of the CSC as a constitutional commission.

Funa pointed out that the Constitution intends to protect the CSC from outside influence, while the mentioned agencies were all under a political branch of government - the executive.

Despite affirming the position of petitioner, the high court, however, stressed that Duque was a "de facto officer" during his tenure with the GSIS, Philhealth, ECC, and HDMF, and his official functions in the GSIS, Philhealth, ECC, and HDMF boards were not invalidated.
“[A]ll official actions of Duque as a Director or Trustee of the GSIS, Philhealth, ECC and HDMF, were presumed valid, binding and effective as if he was the officer legally appointed and qualified for the office,“ the decision read.

x x x."

FAST FACTS: Philippine Bar examination

See - FAST FACTS: Philippine Bar examination

"x x x.

Here are some interesing facts about the exam, all obtained from various news reports.
  • The 2008 Bar exams admitted the most number of examinees -- 6,533. Only 20.58% of them passed.
  • The highest percentage of exam passers was in 1954 with 75.17 percent, while the lowest was in 1999 with 16.59 percent.
  • Former Supreme Court (SC) associate justice Florenz Regalado has obtained the highest Bar exam average to date, after geting 96.70 percent in 1954.
  • Former senator Tecla San Andres-Ziga, who got 89.4 percent in 1930, is the first woman to top the Bar exams.
  • Former senator Jose Diokno topped both the 1940 CPA exams and the 1945 Bar exams. He was the only Bar topnotcher not to have graduated from law school. He was home-schooled by his father, former SC justice Ramon Diokno. (Editor's Note: We earlier mentioned former SC associate justice Carolina Aquino as another bar topnotcher who did not graduate from law school. In fact, she transferred to the UP College of Law and graduated from there. We regret the error.)
  • Francisco Noel Fernandez failed when he first took the exam in 1993, but topped the 1994 exam with a grade of 89.2.
  • The very first Bar exams in 1901 only had 13 examinees.
  • All Philippine president-elect lawyers were Bar placers: Sergio Osmeña (2nd place, 1903), Manuel Quezon (4th place, 1903), Manuel A. Roxas (1st place, 1913), Jose Laurel (2nd place, 1915), Elpidio Quirino (2nd place, 1915), Diosdado Macapagal (1st place, 1936 Bar Exams), and Ferdinand Marcos (1st place, 1939 Bar Exams).
  • Only 13 law schools has so far produced Bar topnochers, wih the most coming from the University of the Philippines College of Law and the Ateneo de Manila Law School.
  • In 1982, the passing grade was fixed at 75 percent, but was lowered to 70 percent in the 2007 exam due to low exam results. If this rule wasn't changed that year, only 5 percent of the 5,626 examinees would have passed.
  • The “five-strike” rule (wherein a Law graduate can only take the exam 5 times) was first applied in 2005. This rule was lifted this year due to last year's low passing rate.
  • Also implemented in 2005 was the "three-failure" rule (wherein a 3-time Bar flunker needs to attend a one-year refresher course before retaking the exam).
  • The exams used to be largely essay-type until the introduction in 2011 of the multiple-type questions. On that year, 60 percent of the exam consisted of multiple choice questions, while only 40 percent was left for essay.
  • For this year, the exam has 20% muliple choice questions and 80% essay-type questions.
  • Prior to 2011, the exams were held every September at the De La Salle University, but was moved to a different date and location after violence rocked the last day of the 2010 Bar exams.
  • Reports of exam leakage led to the re-examination of 1979 and 2003 Bar takers. In the later case, SC ordered a retake of Mercantile law. -
  • x x x."

2015 bar exams moved to November

See - 2015 bar exams moved to November

"x x x.

MANILA, Philippines – The Supreme Court on Tuesday, January 27, approved the recommendation to move the 2015 Bar examinations from October to November in consideration of the academic calendar shift of some law schools in the country.

The move was recommended by the Philippine Association of Law Schools, and endorsed by Bar Confidant Cristina Layusa.

Many universities with law schools already began adjusting their academic calendars for the ASEAN integration.

In 2014, the University of the Philippines and the University of Santo Tomas opened classes in August and July, respectively.

The Ateneo de Manila University will start academic year 2015-2016 in August instead of June.

The recent SC decision takes into account the effect of the academic calendar shift on the review period of law graduates.

This is not the first time the annual Bar exams will be conducted in November. The 2011 exams happened on all 4 Sundays of November.

Prior to 2011, the exams were held every September at the De La Salle University, but was moved to a different date and location after violence rocked the last day of the 2010 Bar exams. (READ: FAST FACTS: Philippine Bar examination)

During the 2014 Bar exams, 5,994 examinees answered 80% essay-type questions and 20% multiple choice questions.

Associate Justice Teresita Leonardo-de Castro will chair the 2015 Bar exams. Layusa said the venue has yet to be announced. –

z z z."

IBP tells De Lima of rich inmates’ rights | News | GMA News Online

See - IBP tells De Lima of rich inmates’ rights | News | GMA News Online

"x x x.

The Integrated Bar of the Philippines (IBP) on Tuesday reminded Justice Secretary Leila De Lima to observe the visitation rights of high-profile inmates recently transferred to the National Bureau of Investigation (NBI) compound.
In a press statement issued on Tuesday IBP national president Vicente Joyas said the legal counsels of the inmates had recently sought the intervention of the IBP, saying that their visitation rights were being violated by the NBI since they were transferred there on December 15 last year.
The NBI is under the direct supervision of the DOJ.
“The said inmates had complained that their visitation rights, including those of their lawyers, had been denied them since Dec. 15,” Joyas said.
Joyas said that on Jan. 5, lawyers Paulo Laguatan and Manuel Andres counsel of convicted drug trafficker Amim Iman Boratong, wrote a letter to the IBP requesting the bar to step in on the matter.
“Pursuant to the directive of the Board of Governors, we are herewith endorsing the said letter with our favorable recommendation to the Honorable Secretary for the observance of the right to counsel of the transferred inmates,” the IBP said in a letter addressed to De Lima dated Jan. 12.
“We shall be grateful for any appropriate action on this matter,” the IBP added in its letter which was received by the office of De Lima on Jan. 20.
Boratong had earlier filed a petion for habeas corpus before the Supreme Court asking the high court to rule on the legality of their transfer. The SC on Jan. 14 ordered the DOJ to justify the transfer of the inmates.
Boratong is among the 19 high-profile inmates transferred from the New Bilibid Prisons (NBP) Maximum Security Compound in Muntinlupa City to the NBI compound in Taft Avenue Manila following a raid at the NBP which yielded contraband items such as illegal drugs, mobile gadgets, cash, expensive watches and even sex toys.
The raid also led to the discovery of luxurious “kubols” one of them with a recording studio and another with a gym and a jacuzzi.
On Dec. 18, 2014, another inmate, Noel Martinez, represented by Ferdinand Topacio, had filed a petition for a writ of Amparo before the Court of Appeals (CA). He was later joined by his fellow inmates German Agojo, Willy Sy and Michael Ong Chan.
The appeals court’s Sixth Division issued the writ for Martinez on January 12 and the case is now being heard. Martinez had also filed on December 22, 2014 a formal complaint before the Commission on Human Rights (CHR) against De Lima for alleged violation of his “constitutional rights against incommunicado detention and cruel and inhuman punishment.”
The CHR, on January 8, has directed the DOJ to comment on the complaint.
De Lima had earlier maintained that there was nothing illegal with the transfer of the inmates as the NBI detention facility is an extension facility of the Bureau of Corrections (BuCor) which has the direct supervision of the NBP. Elizabeth Marcelo/NB, GMA News.
x x x."

Saturday, January 24, 2015

External legal retainer; sample agreement.

“x x x.

            Thank you for communicating the desire of your company to retain our legal services.
We are glad to extend our external legal Retainership for the legal needs of your Company, the xxx Corp
Stated below are the terms and conditions, for your conforme hereunder:

1.        Purpose/Coverage: Legal advice/consultations thru personal meetings, telephone, SMS, email, fax or postal mail.

Contracts for review or for draw up by the law office shall be charged at a discounted fee of fifty per cent (50%) from the normal charges thereof, which depend on the time invested therein by the handling lawyer.

Other operations advise shall also be charged at a 50% discount, compared to the normal charges therefor.

2.       Monthly Retainer Fee and Mode of Payment:  xxx Thousand Pesos (Pxxx/month, to be automatically deposited to our “xxx Bank Account, xxx Branch, xxx City, Current Account Name: xxx, Current Account No. xxx ”, not later than every 15th day of every month, without need of notice/demand therefor.

There shall also be added an additional one-month retainer fee every December of each year that the herein Legal Retainership Agreement is effective.

3.      Period and Renewability:  This Legal Retainership Agreement SHALL CONTINUE TO BE IN EFFECT, WITHOUT NEED OF YEARLY RENEWAL, UNLESS TERMINATED IN WRITING, by either party, within thirty (30) days before the intended termination date.

4.      Meetings Outside the Law Office – A lawyer of the law office who attends a legal meeting outside Las Pinas City and within the cities of Makati, Manila, Pasay, Paranaque or Muntinlupa shall be entitled to an appearance fee of xxx THOUSAND PESOS (Pxxx) per such outside meeting in the said specified cities.

Outside the abovementioned five (5) cities but within Metro Manila, the appearance fee shall be Pxxx.00 per such meeting.

5.      Deposit for Actual Costs. – The client shall maintain a deposit with the law office in the amount of xxx Thousand Pesos (Pxxx) to cover all actual costs of the law office for the client, e.g., paralegal staff time, transportation, meals for field work required by the client, postage, xerox/reproduction, computer printing, fax, long distance calls, mobile phone calls, and other actual out-of-pocket expenses incurred by the law office as it serves the legal needs of the client.

The said deposit shall be liquidated and reported to the client in writing by the law office for replenishment purposes from time to time when the said deposit is about 50% depleted.

6.      Special Legal Matters or Court Cases. – Specific court cases or special legal missions or assignments in behalf of the client shall be covered by separate special legal retainership agreements, the terms and conditions of which shall be subject to negotiation and agreement by the parties.

Thank you.

X x x.”


Friday, January 23, 2015

Pardon the politics | Inquirer Opinion

See - Pardon the politics | Inquirer Opinion

"x x x.

Judge for yourself: “Whereas, Joseph Ejercito Estrada has been under detention for six and a half years; whereas, [he] has publicly committed to no longer seek any elective position or office … I hereby grant executive clemency to Joseph Ejercito Estrada, convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. He is hereby restored to his civil and political rights.”

This was carefully crafted to tiptoe around the issue of whether Estrada can seek public office again—that is to say, whether the punishment of perpetual disqualification remained despite the pardon. After all, that is what the Revised Penal Code says: “A pardon does not work the restoration of the right to hold public office … unless such rights be expressly restored by the terms of the pardon.”

But on the other hand, Arroyo did give an unconditional pardon, no ifs or buts about it (“I hereby grant executive clemency…”). Under the Revised Penal Code, the effect of that pardon is the “total extinction of criminal liability.” In addition to that, she stated expressly that Estrada was thus “restored to his civil and political rights.” Since his right to run for public office was the only such right that he lost by virtue of his conviction, that was as express a restoration of right as one can find in the terms of a pardon. That presumably was the reading of 13 justices as against the three dissenting members of the high court.

x x x."

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

Thursday, January 22, 2015

How to fight restrictions on access to court cases (US law) - Columbia Journalism Review

See - How to fight restrictions on access to court cases : Columbia Journalism Review

"x x x.

Don Blankenship, the former CEO and chairman of Massey Energy, is accused of conspiring to violate various federal laws and regulations in connection with a fatal explosion in 2010 at the company’s Upper Big Branch-South mine.
It’s unquestionably a big story, but the reporters covering it face a challenge. Last week, in response to requests from both local and national news organizations, the federal judge presiding over Blankenship’s criminal trial refused to lift a gag and sealing order that (1) restricts access to most court records filed in the case, and (2) prohibits trial participants, including the attorneys and parties, from making statements or releasing information about it.
US District Judge Irene Berger did modify her initial order: The judge made public Blankenship’s indictment and other orders in the case, which she had previously sealed. But otherwise, she affirmed her decision to gag the trial participants and to restrict access to records containing “information or argument” related to the “facts and substance” of the case. Berger said the restrictions are necessary to protect Blankenship’s fair trial rights. 
News coverage of the judge’s decision has been pretty good, but I thought it might be helpful to add some broader analysis of when it’s proper for a judge to gag people or to restrict access to court records. I hope these notes will add to the coverage so far, and help any journalists facing similar restrictions. (These are the general principles, so there may be slight variations from one jurisdiction to the next.)

— Don’t try to rely on FOI statutes. We use those to obtain executive branch records, but we use case law to obtain judicial branch records. There’s a First Amendment right of access to court proceedings and a common law right of access to court records. Neither one is absolute.

— For criminal proceedings, the US Supreme Court established a right of access in the 1980 case Richmond Newspapers v. Virginia. Since then, the justices have expanded that right to apply to sensitive testimony (Globe Newspaper v. Superior Court), jury selection (Press Enterprise I), and pretrial hearings (Press Enterprise II and Waller v. Georgia).
But, again, the right is not absolute. The court held in Richmond that before closing a proceeding, a judge must make findings to explain why closure is necessary, and the judge must consider alternatives. And in Press Enterprise II, the justices created a two-part test for closure decisions.
First, the judge must determine whether there is a right of access by taking into account both experience (whether that type of proceeding historically has been open) and logic (whether openness would play a positive role in the proceeding). Second, if such a right exists, the judge determines whether “higher values” nonetheless require closure (e.g., national security or a defendant’s fair trial rights).

— For civil proceedings, the Supreme Court hasn’t said whether there’s a right of access, but many courts have recognized one by citing Richmond, and then applying the Press Enterprise II test for closure decisions.  

— For court records, the Supreme Court recognized a right of access in the 1978 case Nixon v. Warner Communications. The right includes pleadings, motions, evidence, and other materials. The justices said the right was grounded in the common law, but several federal circuits also have recognized the right through the First Amendment, applying the same principles to records that are applied to proceedings. Regardless of its source, the right’s existence is clear.
But, yet again, it’s not absolute. A judge may seal records if a party shows “good cause.” This is supposed to allow a party to shield sensitive information (e.g., trade secrets), but too often sealing is requested to shield something simply unflattering. The press can challenge sealing orders, as the media group did in the Blankenship case, and the key is to use the Press Enterprise II test to evaluate whether there’s a “higher value” to be protected.

— For pretrial publicity and gag orders, the classic case is Sheppard v. Maxwell, even though it’s not really an access case. It was a murder trial whose news coverage was so circus-like that the Supreme Court ruled that the publicity made it impossible for the defendant to get a fair trial. The court focused on the defendant’s Fourteenth Amendment rights, and outlined what courts could do to address prejudicial publicity (e.g., ordering a change of venue, sequestering a jury, importing a jury, delaying a trial).
Courts can impose gag orders, too. They come in two basic forms. The first prohibits the press from publishing certain things about a case, and these typically are struck down as unconstitutional, per the 1976 case Nebraska Press Association v. Stuart. The second prohibits trial participants (e.g., attorneys, parties, witnesses, etc.) from speaking to the press. The Supreme Court hasn’t heard a case on that issue, but lower courts have upheld such gag orders if the trial participants’ speech is “substantially likely” to prejudice the defendant’s fair trial rights.
In any case, if you want to challenge an order—closure, sealing, or gag—as a member of the press, you can ask the trial court for permission to be a party for the purpose of challenging it, or you can ask an appellate court to order the trial court to reverse its decision. Whatever you do, unless you’re prepared to pay fines or go to jail, don’t violate an order to challenge it. You can be held in contempt for doing so, even if the order is struck down later as unconstitutional.

- See more at:

x x x."

Poll body violated church rights, says court

See - Poll body violated church rights, says court

"x x x.

The Supreme Court declared as unconstitutional the order of the election commission in 2013 to remove a Catholic cathedral's tarpaulins in Bacolod City campaigning against candidates who supported the reproductive health law and endorsing those who opposed the measure. In a January 21, 2015 decision, the Court said the Commission on Elections violated the church’s right to free speech, expression and property, when it ordered the take-down of the tarpaulins. Comelec considered the tarpaulins election campaign materials, but the Bacolod diocese maintained they were are part of the church campaign against what was being drafted then as the reproductive health law. Despite a fierce church lobby, Congress was able to pass the law.

Read the full story on Rappler

x x x."

Wednesday, January 21, 2015

Corporations; dissolution of.

[Batas Pambansa Blg. 68]


Sec. 117. Methods of dissolution. - A corporation formed or organized under the provisions of this Code may be dissolved voluntarily or involuntarily. (n)

Sec. 118. Voluntary dissolution where no creditors are affected. - If dissolution of a corporation does not prejudice the rights of any creditor having a claim against it, the dissolution may be effected by majority vote of the board of directors or trustees, and by a resolution duly adopted by the affirmative vote of the stockholders owning at least two-thirds (2/3) of the outstanding capital stock or of at least two-thirds (2/3) of the members of a meeting to be held upon call of the directors or trustees after publication of the notice of time, place and object of the meeting for three (3) consecutive weeks in a newspaper published in the place where the principal office of said corporation is located; and if no newspaper is published in such place, then in a newspaper of general circulation in the Philippines, after sending such notice to each stockholder or member either by registered mail or by personal delivery at least thirty (30) days prior to said meeting. A copy of the resolution authorizing the dissolution shall be certified by a majority of the board of directors or trustees and countersigned by the secretary of the corporation. The Securities and Exchange Commission shall thereupon issue the certificate of dissolution. (62a)

Sec. 119. Voluntary dissolution where creditors are affected. - Where the dissolution of a corporation may prejudice the rights of any creditor, the petition for dissolution shall be filed with the Securities and Exchange Commission. The petition shall be signed by a majority of its board of directors or trustees or other officers having the management of its affairs, verified by its president or secretary or one of its directors or trustees, and shall set forth all claims and demands against it, and that its dissolution was resolved upon by the affirmative vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock or by at least two-thirds (2/3) of the members at a meeting of its stockholders or members called for that purpose.
If the petition is sufficient in form and substance, the Commission shall, by an order reciting the purpose of the petition, fix a date on or before which objections thereto may be filed by any person, which date shall not be less than thirty (30) days nor more than sixty (60) days after the entry of the order. Before such date, a copy of the order shall be published at least once a week for three (3) consecutive weeks in a newspaper of general circulation published in the municipality or city where the principal office of the corporation is situated, or if there be no such newspaper, then in a newspaper of general circulation in the Philippines, and a similar copy shall be posted for three (3) consecutive weeks in three (3) public places in such municipality or city.
Upon five (5) day's notice, given after the date on which the right to file objections as fixed in the order has expired, the Commission shall proceed to hear the petition and try any issue made by the objections filed; and if no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the debts of the corporation. (Rule 104, RCa)

Sec. 120. Dissolution by shortening corporate term. - A voluntary dissolution may be effected by amending the articles of incorporation to shorten the corporate term pursuant to the provisions of this Code. A copy of the amended articles of incorporation shall be submitted to the Securities and Exchange Commission in accordance with this Code. Upon approval of the amended articles of incorporation of the expiration of the shortened term, as the case may be, the corporation shall be deemed dissolved without any further proceedings, subject to the provisions of this Code on liquidation. (n)

Sec. 121. Involuntary dissolution. - A corporation may be dissolved by the Securities and Exchange Commission upon filing of a verified complaint and after proper notice and hearing on the grounds provided by existing laws, rules and regulations. (n)

Sec. 122. Corporate liquidation. - Every corporation whose charter expires by its own limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other purposes is terminated in any other manner, shall nevertheless be continued as a body corporate for three (3) years after the time when it would have been so dissolved, for the purpose of prosecuting and defending suits by or against it and enabling it to settle and close its affairs, to dispose of and convey its property and to distribute its assets, but not for the purpose of continuing the business for which it was established.
At any time during said three (3) years, the corporation is authorized and empowered to convey all of its property to trustees for the benefit of stockholders, members, creditors, and other persons in interest. From and after any such conveyance by the corporation of its property in trust for the benefit of its stockholders, members, creditors and others in interest, all interest which the corporation had in the property terminates, the legal interest vests in the trustees, and the beneficial interest in the stockholders, members, creditors or other persons in interest.
Upon the winding up of the corporate affairs, any asset distributable to any creditor or stockholder or member who is unknown or cannot be found shall be escheated to the city or municipality where such assets are located.
Except by decrease of capital stock and as otherwise allowed by this Code, no corporation shall distribute any of its assets or property except upon lawful dissolution and after payment of all its debts and liabilities. (77a, 89a, 16a)

Nov..-Dec. 2014 decisios of the Supreme Court of the Philippines

See - Supreme Court of the Philippines