Thursday, April 23, 2015

SC justices shed light on Ombudsman's power to probe

See - SC justices shed light on Ombudsman's power to probe

"x x x.

BAGUIO CITY, Philippines – When it passed Republic Act (RA) 6770 or the Ombudsman Act of 1989, Congress conditionally prohibited courts from issuing writs of injunction "to delay" an Ombudsman probe.
Section 14 of RA 6770 reads:
"Section 14. Restrictions – No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facieevidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law."
Section 14 of RA 6770 became the subject of careful textual examination on Tuesday, April 21, during the 2nd day of oral arguments on the high-profile case of Ombudsman Conchita Carpio Morales against Makati Mayor Erwin Jejomar "Junjun" Binay Jr.
With the politically charged nature of the case, Justice Marvic Leonen insisted that "the only fulcrum that we have is to look at the law itself" and "that is our only solace."
Associate Justices Leonen and Estela Perlas-Bernabe zoomed in on Section 14. They quizzed Binay's lawyers on the legality of the restriction, the meaning of "delay," the character of the "investigation," and the nature of the "appeal" or "remedy" contemplated under Section 14, among others.
In her petition to the Supreme Court (SC), Morales invoked the subject provision of the law in arguing against the 60-day temporary restraining order (TRO) and subsequent preliminary injunction issued by the Court of Appeals (CA) in favor of Binay.
The CA writ stopped the Ombudsman-ordered 6-month suspension of Binay Jr, while it decides on the main case of whether Morales erred in issuing the said suspension order.
x x x."

The IBP speaks with a ‘forked tongue’ | Inquirer Opinion

See - The IBP speaks with a ‘forked tongue’ | Inquirer Opinion

"x x x.

It’s disgusting how the Integrated Bar of the Philippines always makes “sipsip” to the judges and justices whenever the opportunity presents itself (“Produce hard evidence, IBP, solons dare Trillanes,” Front Page, 4/15/15). As everybody knows, the lawyers who run the IBP constantly hobnob with those “who preside over the lives and fortunes of litigants.” Having easy access to them, they are perceived as the most favored practitioners.

In its latest posturing, the IBP was said to be offering “to help Trillanes and other complainants against judicial corruption if they can present the hard evidence.” The IBP was, of course, speaking with a forked tongue. What in fact it was telling Sen. Antonio Trillanes IV was, he’s got no evidence and so he should stop shooting his mouth off!

Even if Trillanes has credible evidence to prove his charges, we do not think the IBP really gives a hoot. If its past actuations are any indication, it will no doubt come blindly again to the defense of the magistrates concerned. They certainly know which side of their bread is buttered!

We need only recall that Philippine Airlines employee who exposed via an affidavit the “travel perks and privileges” enjoyed by members of the judiciary (foremost of whom being some justices of the Supreme Court) at the height of the impeachment trial of former chief justice Renato Corona. Unfortunately, the Senate barred that witness from testifying because “bribery was not included in the charges”! Did the IBP voice any concern about the possibility that the judiciary might really be “rotten to the core”? No, instead, it dismissed the whole impeachment process as nothing but a vicious, politically motivated “attack against the independence of the judiciary”!

And when rumors about a certain “Ma’am Arlene” peddling decisions of honorable judges and justices to the highest bidders broke out in the open, were the IBP big guns bestirred to get to the bottom of that scandal? If so, where is its report? If not, why the hell not? 

Inordinate delays in court cases give rise to the suspicion that judges and justices are just waiting for the “right price” to come their way. Lawyers out of the elite loop have been asking why they keep paying dues to an organization that does so little to improve the administration of justice.

Come to think of it, has the IBP—and for that matter, the Philippine Constitution Association—ever taken a stand on the Supreme Court’s blatant defiance of the constitutional mandate to decide cases within two years, per Article VIII, Section 15 (1)?   That command is carved in stone and if the incumbent justices feel they are too old and feeble to follow it, by all means they should resign and let others do the job! To be honest about it, almost everyone points to the Supreme Court as the one hugely responsible for the detested delays in the delivery of justice!


x x x."

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Malacañang announces appointment of new judges, prosecutors - The Manila Times OnlineThe Manila Times Online

See - Malacañang announces appointment of new judges, prosecutors - The Manila Times OnlineThe Manila Times Online

"x x x.

Appointed as Regional Trial Court (RTC) judges were Jose Rene Gallemit Dondoyano for Branch 6, and Ric Sister Bastasa for Branch 8 (both in Dipolog City, Zamboanga del Norte); Nida Bringas Alejandro for Branch 12 (Laoag City, Ilocos Norte); Walter Orais Junia for Branch 39 — Special Court for Environmental Cases (Lingayen, Pangasinan); Paul Ramil Attolba, Jr. for Branch 30 (Bambang, Nueva Vizcaya); Kimal Mustapha Salacop for Branch 6 (Prosperidad, Agusan del Sur); Elma Mendoza Rafallo-Lingan for Branch 159 — Special Court for Family Cases and Special Commercial Court (Pasig City); Rowena Nieves Adena Tan for Branch 118 (Pasay City); Ana Marie Train Mas for Branch 52 (City of Manila); and Phoeve Castillo Meer for Branch 275 (Las Pinas City).
Named as Municipal Trial Court (MTC) judges were Jeoffrey Capina Manluyang (Governor Generoso, Davao Oriental); Maria Eloisa Aray Maglana (Baganga, Davao Oriental); Marie Grace Vaflor Entilla-Eborde (Tupi, South Cotabato); Bai Israhayda Cueto Sinsuat (Sultan Kudarat, Maguindanao); Alta Grace Narag Briones (Rosales, Pangasinan); Francisco Orlain Pilpil (Solano, Nueva Vizcaya); and Debbie Gamotin Dulay-Del Val (Naguilian, La Union).
Designated as Municipal Trial Court in Cities (MTCC) judges were Kim Elauria Ortiz-Liquido (Bislig CIty, Surigao del Sur); Christina Tan Haw Tay-Jovero (Cotobato City, Maguindanao); Jeanylene Tolentino Isip-Fukai for Branch 2 — Special Court for Election Cases (San Fernando City, La Union); and Genevieve Dalos Ande-Ewangan for Branch 1 (Santiago City, Isabela).
Appointed as Municipal Circuit Trial Court (MCTC) judges were Cashmere Jo-An Augustia Dagsa Zayas-Cruiz (5th MCTC in Marihatag-San Agustin, Surigao del Sur); Allan Posada Temones (2nd MCTC in Caraga-Manay-Tarragona, Davao Oriental); Josie Abu Felipe (6th MCTC in Surallah-Lake Sebu, South Cotobato); Vicente Valente Imbang (2nd MCTC in M’Lang-Matalam, North Cotobato); Eugene David Rosos Tancino (3rd MCTC in Kabacan-Carmen, North Cotabato); Angelito Vencer Rasalan (5th MCTC in Upi-South Upi, Maguindanao); Trinidad Torres Abad-Ferrer (6th MCTC in Pozorrubio-Sison, Pangasinan); Norbert Bong Sabio Obedoza (Cordon-Dinapigue, Isabela); and Geraldine Balagso Ramos (4th MCTC in Narvacan-Nagbukel-Santa, Ilocos Sur).
Rasad Sarip Laguindab was also appointed as judge for the 4th Shari’a District Court in Marawi City, Lanao del Sur.
Designated as Prosecutor IV for the Office of the City Prosecutor (OCP) were Jeremy Bionat and Nestor Ledesma; and as Prosecutor III for the OCP were Rey Camilo Dumlao II, Elmer Surot, Florida Daquiz-Sta. Maria, Joy Marie Frances Cortes, Janet Palanca, Adri Anne Montes-Espanola, Helen Tenchavez, Isabel Corazon Plaza, Maureen Chua, and Ating Diacat.
Named as Prosecutor II for the OCP were Clarinda Martinez, Jose Jay dela Chica, Michelle Hortiz-Abarintos, Jordan Teano, Raulito Villar, Jhaciel Quicho, Venus Gapuz-Taliman, Dulce Ricafort-Fuller, Jennefer Resurreccion, Carol Salvatierra, Ferdinand Thomas Magallanes, and Allan Alavanzas; and as Prosecutor I for the OCP were Roberyn Joy Marinas-Navarro, Victor Esteban Benitez, Jennifer Corpuz-de Guzman, Rowena Figueroa, Leni Garcia-Tepace, Marlon Moises, Romel de los Reyes, Rodolfo Lopez, Alexander Eric Leveriza, Sheila Teodora Diaz, Darwin Dimen, and Ronald Asong.
Appointed as Prosecutor IV for the Office of the Regional Prosecutor (ORP) was Kenneth John Amamanglon; and as Prosecutor III for the ORP was Frank Divinagracia, Jr.
Designated as Prosecutor III for the Office of the Provincial Prosecutor (OPP) were Evangeline Rivera, Raul Campos, Adriano Cabida, Ephraim Tomboc, Arturo Trinidad, Jose de Leon, Jr., Erwin Caparros, Lilibeth Lorena, Ma. Elena Hofilena-Gerochi, and Richard Abangan, Sr.; as Prosecutor II for the OPP were Elpidio Bober, Raymund Gultiano, Hedeliza Cruz, Richard Alvin Japson, Rosemarie Ann Polistico, Godfrey Montes, and Reymund Gunda; and as Prosecutor I for the OPP were Christobal Balangcod, David Bartolome, Jr., Salvador Arnesto, Farah Joi Frondozo, Rosalito Cimanes, Flora Malate-Pante, Prince Joses Lim, Edwin Docena, Crisolito Tavera, Ahmad Arip, Soteo Gardose, Roel Plando, Jojie Balume, and Victor Dennis Gemarino.
x x x ."

Wednesday, April 22, 2015

Oceana hails SC decision on Tanon Strait exploration | ABS-CBN News

See - Oceana hails SC decision on Tanon Strait exploration | ABS-CBN News

"x x x.

MANILA – Ocean conservation group Oceana Philippines lauded the decision of the Supreme Court that declared as unconstitutional the oil and gas exploration activities at the Tañon Strait between the islands of Negros and Cebu.

“This is a landmark ruling which should prevent any project which destroys the ecological integrity especially of a protected seascape,” Oceana Philippines vice president Gloria Estenzo Ramos said in a statement.

“An ecologically destructive activity, such as oil drilling, is an oddity especially in an environmentally critical area like Tañon Strait Protected Seascape,” she added.

Environmentalists protested the oil and gas exploration activities at the Tañon Strait for endangering mammals and other marine life, as well as the livelihood of fishing communities.
In its en banc session in Baguio City on Tuesday, the high court ruled that the Philippine government violated the constitution when it entered into an agreement with the Japan Petroleum Exploration Co., Ltd. (JAPEX) in 2004 that was not authorized by a general law, signed by the President, or reported to Congress.

The Supreme Court also said the JAPEX deal was also a violation of Republic Act No. 7586, or the National Integrated Protected Areas System (NIPAS) Act, and Presidential Decree No. 1586 that established an environmental impact statement system because Tañon Strait is an environmentally critical area.

“Any activity outside the scope of its management plan may only be implemented pursuant to an Environmental Compliance Certificate (ECC) secured after undergoing an Environmental Impact Assessment (EIA) to determine the effects of such activity on its ecological system,” the court said.

Ramos said the Protected Area Management Board, the policy-making body for Tañon Strait, was not even constituted, adding that there was no management plan when the oil exploration took place.

Ramos led the filing of one of the cases against the government in December 2007.

“This ruling should serve as a reminder to national agencies to perform their mandates of environment protection, and also protect the rights of the people. This should also deter them from ecologically destructive acts, especially in protected areas like Tañon Strait,” she said.

Tañon Strait was declared a protected seascape in 1998 by then-President Fidel Ramos. It is known as the playground of cetaceans, with at least 14 species of whales and dolphins found in its waters.

It also harbors 26 species of mangroves, 70 species of fish and 20 species of crustaceans.
x x x."

Supreme Court SALNs | Center for Media Freedom & Responsibility

See - Supreme Court SALNs | Center for Media Freedom & Responsibility

"x x x.

CHEERS TO the Philippine Center for Investigative Journalism (PCIJ) and Solar News for their joint story that examined the Statements of Assets, Liabilities, and Net Worth (SALNs) of the Supreme Court (SC) justices, one year after Congress impeached then Chief Justice Renato Corona.
Published last Dec. 9 to 12, PCIJ’s four-part special series showed that based on the contents of their 2011 SALNs, most of the SC justices underdeclared their incomes—which under the law  means salaries plus allowances—with half of them declining to answer questions about these findings.
“Ten of the justices declared only their basic pay—or just a fourth to a third of the total compensation that they collected in 2011—while the remaining four did not even disclose a figure,” according to the PCIJ in its first part (“The wealth of the ‘Gods of Faura’: SC justices among PH’s best paid, allowances, bonuses not in SALNs”). The report said that the justices did not declare as part of their annual incomes in their SALN allowances, benefits, and bonuses.
Quoting a recent Commission on Audit disclosure report, the PCIJ said that the High Court justices “are among the top 200 highest paid, by amount of income they received in 2011, out of 6,489 officials from 864 government agencies (including the Cabinet, the constitutional commissions, the judiciary, and government-owned and —controlled corporations and their subsidiaries) largely because of the fat allowances and bonuses they received.”
The second part of PCIJ’s story reported that for SC justices, on top of hefty salaries, allowances, bonuses and other perks, the rules of taxation for allowances and other monetary perks applied in other government agencies are “rather skewed.” (“The wealth of the ‘Gods of Faura’: Corona’s fat allowances not taxed: Same, same still at SC?”)
The third part looked at the ballooning net worth of justices over the years and  the disparities between the justices’ 2011 SALNs with the previous ones they filed. There are also 12 justices who brought two to six relatives into their  staffs or as consultants in the Supreme Court and the electoral tribunals. (“Rapidly rising net worth shared bliss of SC justices”)
The fourth part looked at how SC justices as well as other public officials flout asset disclosure loss. (“The wealth of the ‘Gods of Faura': Transparency on ice: Judicial independence or impunity?“)
Solar News, the only news organization to have been given copies of the SALNs since the 1989 SC resolution, aired a five-part special on the wealth of the justices from Dec. 11 to 14.
Solar News looked at Republic Act (RA) 6713 (also known as Code of Conduct and Ethical Standards for Public Officials and Employees) authored by the Senate in 1989 which mandated the filing of SALNs and that the contents should be “unconditionally available at anytime, anywhere, to anyone.” (“The SC justices and their wealth”). But in May 1989, despite the clear guidelines in RA 6713, the SC issued a resolution establishing a policy for the release of SALNs of members of the judiciary.
The special reported the responses of the justices to queries regarding their 2011 and previous SALNs. It also examined the companies, properties, and backgrounds of the SC justices based on their 2011 SALNs.
x x x."

Sexual acts between two consenting adults do not have a place in the work environment.

"x x x.
After due consideration, we find the NLRC legally correct and well within its jurisdiction when it affirmed the validity of the respondents' dismissal on the ground of serious misconduct.

Sexual acts and intimacies between two consenting adults belong, as a principled ideal, to the realm of purely private relations. Whether aroused by lust or inflamed by sincere affection, sexual acts should be carried out at such place, time and circumstance that, by the generally accepted norms of conduct, will not offend public decency nor disturb the generally held or accepted social morals. Under these parameters, sexual acts between two consenting adults do not have a place in the work environment.

Indisputably, the respondents engaged in sexual intercourse inside company premises and during work hours. These circumstances, by themselves, are already punishable misconduct. Added to these considerations, however, is the implication that the respondents did not only disregard company rules but flaunted their disregard in a manner that could reflect adversely on the status of ethics and morality in the company.

Additionally, the respondents engaged in sexual intercourse in an area where co-employees or other company personnel have ready and available access. The respondents likewise committed their act at a time when the employees were expected to be and had, in fact, been at their respective posts, and when they themselves were supposed to be, as all other employees had in fact been, working.

Under these factual premises and in the context of legal parameters we discussed, we cannot help but consider the respondents' misconduct to be of grave and aggravated character so that the company was justified in imposing the highest penalty available — dismissal. Their infraction transgressed the bounds of socially and morally accepted human public behavior, and at the same time showed brazen disregard for the respect that their employer expected of them as employees. By their misconduct, the respondents, in effect, issued an open invitation for others to commit the same infraction, with like disregard for their employer's rules, for the respect owed to their employer, and for their co-employees' sensitivities. Taken together, these considerations reveal a depraved disposition that the Court cannot but consider as a valid cause for dismissal.

In ruling as we do now, we considered the balancing between the respondents' tenurial rights and the petitioner's interests - the need to defend their management prerogative and to maintain as well a high standard of ethics and morality in the workplace. Unfortunately for the respondents, in this balancing under the circumstances of the case, we have to rule against their tenurial rights in favor of the employer's management rights.

All told, the respondents' misconduct, under the circumstances of this case, fell within the terms of Article 282 (now Article 296) of the Labor Code. Consequently, we reverse the CA's decision for its failure to recognize that no grave abuse of discretion attended the NLRC's decision to support the respondents' dismissal for serious misconduct.”

x x x."
See -

Tuesday, April 21, 2015

Doctrine of CONDONATION in administrative law; Junjun Binay test case for Jardeleza

See - Junjun Binay test case for Jardeleza

"x x x.

Sereno against condonation
During the oral arguments on April 14, condonation was only taken up briefly.
It was the Chief Justice, Maria Lourdes Sereno, who openly opposed it. She was emphatic in her argument: "It is important that this court deliver the correct message to 430,000 officials... We're basically saying that these 430,000 officials can commit administrative offenses ranging from simple misconduct all the way to serious misconduct, and dishonesty. They just have to ensure that they get re-elected and any preventive suspension or any investigation or an administrative finding by the Ombudsman will have to stop.”
“Is that the message that is going to be delivered if we continue with the condonation doctrine?" Sereno asked.
Santiago bill
At the Senate, Miriam Defensor Santiago weighed in by filing a bill to cure this old doctrine that cripples the fight against corruption. She sought to amend the Anti-Graft and Corrupt Practices Act “by making an elective official liable for any violation of the Act although it was committed during a prior term and although the official was reelected.”
The bill was her response to Mayor Binay, who invoked the doctrine of condonation. “That is a cross-eyed simplification of the problem,” the outspoken senator said. “It is wrong to equate the reelection of a public official to condonation of his past criminal offenses.”
This legal doctrine has a long history, starting in the 1950s. Miguel Silos, in his Ateneo law school thesis, pointed out that at the time, the 1935 Constitution had no provisions on public office as a public trust or the duty of the State to maintain honesty and integrity in public office.
Under the 1987 Constitution, “more than any time in our history, it directs public officers to observe the strictest adherence to good conduct.” Silos argued that it is clear that “corruption, irresponsibility…are not to be tolerated and those who offend against these provisions must be removed from their positions…”
This big issue is now up to the Supreme Court to resolve – and it goes beyond Binay Jr and Morales. –
x x x."

Saturday, April 18, 2015

Judgments For Support Are Immediately Final And Executory - The Lawyer's Post

See - Judgments For Support Are Immediately Final And Executory - The Lawyer's Post

"x x x.

Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial court, judgments in actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to the general rule which provides that the taking of an appeal stays the execution of the judgment and that advance executions will only be allowed if there are urgent reasons therefor. The aforesaid provision peremptorily calls for immediate execution of all judgments for support and makes no distinction between those which are the subject of an appeal and those which are not. To consider then petitioner’s argument that there should be good reasons for the advance execution of a judgment would violate the clear and explicit language of the rule mandating immediate execution.

Petitioner is reminded that to the plain words of a legal provision we should make no further explanation. Absoluta sententia expositore non indiget. Indeed, the interpretation which petitioner attempts to foist upon us would only lead to absurdity, its acceptance negating the plain meaning of the provision subject of the petition.

Petitioner would also have us annul the writ of execution on the ground that he was not notified of its issuance. We are unable to accept such a plea for enough has been done by petitioner to delay the execution of the writ. As the records show, in partial fulfillment of the writ of execution petitioner surrendered a sedan which apparently was not his as it was later ordered released to a third party who laid claim over the levied vehicle.[1] Also, petitioner filed before the Court of Appeals a Motion for Leave to Deposit in Court Support Pendente Lite promising to deposit the amount due as support every 15th of the month, but to date has not deposited any amount in complete disavowal of his undertaking.[2] He was not even deterred from appealing before us and needlessly taking up our time and energy by posing legal questions that can be characterized, at best, as flimsy and trivial. We are thus not prepared to abrogate the writ of execution issued in favor of private respondent for substantial justice would be better served if petitioner be precluded from interposing another barrier to the immediate execution of the support judgment.

We are not intimating that in every case the right to notice of hearing can be disregarded. That is not so. It appears in this case that there has been too much temporizing in the execution of the writ which must not be allowed to thwart the constitutional mandate for speedy disposition of cases. As has been said, a technicality should be an aid to justice and not its great hindrance and chief enemy.[3] Truly, if the writ of execution would be voided on this ground alone, then procedural rules which were primarily drafted to protect parties in the realm of constitutional guarantees would acquire a new sanctity at the expense of equity and justice.

       x x x."

       See - 

G.R. No. 145527, May 28, 2002, AUGUSTUS CAEZAR R. GAN, petitioner, 
vs. HON. ANTONIO C. REYES, in his capacity as Presiding Judge of RTC-Br. 61, Baguio City, ALBERT G. TOLENTINO, in his capacity as RTC Sheriff of Baguio City, and FRANCHESKA JOY C. PONDEVIDA, assisted by BERNADETTE C. PONDEVIDA, respondents.

Adoption: Prohibition On Aliens... - The Lawyer's Post

See - Adoption: Prohibition On Aliens... - The Lawyer's Post

"x x x.

Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as “The Family Code of the Philippines”, private respondents spouses Clouse are clearly barred from adopting Solomon Joseph Alcala.

Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who are not qualified to adopt, viz.:

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or

(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law.

There can be no question that private respondent Alvin A. Clouse is not qualified to adopt Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision. In the first place, he is not a former Filipino citizen but a natural born citizen of the United States of America. In the second place, Solomon Joseph Alcala is neither his relative by consanguinity nor the legitimate child of his spouse. In the third place, when private respondents spouses Clouse jointly filed the petition to adopt Solomon Joseph Alcala on February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino citizen. She lost her Filipino citizenship when she was naturalized as a citizen of the United States in 1988.

Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a former Filipino citizen. She sought to adopt her younger brother. Unfortunately, the petition for adoption cannot be granted in her favor alone without violating Article 185 which mandates a joint adoption by the husband and wife. It reads:

Article 185. Husband and wife must jointly adopt, except in the following cases:

(1) When one spouse seeks to adopt his own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.

Article 185 requires a joint adoption by the husband and wife, a condition that must be read along together with Article 184.

x x x."

Payment and disbursement of fees for the execution of a writ

"x x x.
The duties of sheriffs in the implementation of writs are explicitly laid down in Section 10, Rule 141 of the Rules of Court, as amended, which reads:

Sec. 10. Sheriffs, process servers and other persons serving processes. – x x x

x x x x

With regard to sheriff’s expenses in executing writs issued pursuant to court orders or decisions or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer of travel, guards’ fees, warehousing and similar charges, the interested party shall pay said expenses in anamount estimated by the sheriff, subject to approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. The liquidation shall be approved by the court. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, the sheriff’s expenses shall be taxed as cost against the judgment debtor. (Emphasis supplied)

The aforesaid rule enumerated the steps to be followed in the payment and disbursement of fees for the execution of a writ, to wit: (1) the sheriff must prepare and submit to the court anestimate of the expenses he would incur; (2) the estimated expenses shall be subject to court approval; (3) the approved estimated expenses shall be deposited by the interested party with the Clerk of Court, who is also the ex-officio sheriff; (4) the Clerk of Court shall disburse the amount to the executing sheriff; (5) the executing sheriff shall thereafter liquidate his expenses within the same period for rendering a return on the writ; and (6) any amount unspent shall be returned to the person who made the deposit. It is clear from the enumeration that sheriffs are not authorized to receive direct payments from a winning party. Any amount to be paid for the execution ofthe writ should be deposited with the Clerk of Court and it would be the latter who shall release the amount to the executing sheriff. The amount deposited should be spent entirely for the execution only and any remainder of the amount should be returned.
x x x."

See - 
A.M. No. P-14-3272, November 11, 2014
[Formerly: OCA IPI No. 14-4264-P]

Regional Trial Court, Branch 14, Davao City, Respondent.

Reinstatement to the Bar of a disbarred lawyer; when allowed.

"x x x.
Membership in the Bar is a privilege burdened with conditions.20 It is not a natural, absolute or constitutional right granted to everyone who demands it, but rather, a special privilege granted and continued only to those who demonstrate special fitness inintellectual attainment and in moral character.21 The same reasoning applies to reinstatement of a disbarred lawyer. When exercising its inherent power to grant reinstatement, the Court should see to it that only those who establish their present moral fitness and knowledge of the law will be readmitted to the Bar. Thus, though the doors to the practice of law are never permanently closed on a disbarred attorney, the Court owes a duty to the legal profession as well as to the general public to ensure that if the doors are opened,it is done so only as a matter of justice.22

The basic inquiry in a petition for reinstatementto the practice of law is whether the lawyer has sufficiently rehabilitated himself or herself in conduct and character.23 Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound discretion of the Court.24 The lawyer has to demonstrate and prove by clear and convincing evidence that he or she is again worthy of membership in the Bar. The Court will take into consideration his or her character and standing prior to the disbarment, the nature and character of the charge/s for which he or she was disbarred, his or her conduct subsequent to the disbarment, and the time that has elapsed in between the disbarment and the application for reinstatement.25

In the present case, we note that before his admission to the Bar, the respondent had demonstrated an active involvement and participation in community and church activities by joining Youth For Christ, Catechism, and Bible Study and Sharing. Likewise, upon admission to the Bar, the respondent worked as Municipal Attorney in Sta. Cruz, Marinduque rendering free legal assistance to his townmates who were inneed of legal service. Thereafter, the respondentwas appointed as a Municipal Administrator and had continued extending assistance to the indigent residents.

The respondent also actively engaged and participated in various community projects, through the Marinduque Jaycees, where he served as President from 1980 to 1981, and the Integrated Bar of the Philippines Marinduque Chapter, where he served as a member, Director, and President from 1982 to 1987.

In his present appeal for judicial clemency, the respondent acknowledged his indiscretions and claimed to have taken full responsibility for his misdemeanor. Unlike in his previous petitions/appeal for judicial clemency, the respondent no longerquestioned the Court’s decision. According to him, he has long expressed deep remorse and genuine repentance.

The respondent also claimed that the long period of his disbarment gave him sufficient time to reflect on his professional conduct, to show remorse and repentance, and to realize the gravity of his mistakes. After his disbarment, the respondent continued lending assistance, and deviated his time and effort in pursuing civic and religious work that significantly contributed to his character reformation.He professed that during his almost five (5) years of disbarment, he has been an active member of the Couples for Christ, Marriage Encounter, and Knights of Columbus; and through his affiliations with these groups, he had served in the ecclesial affairs in his parish as an Extraordinary Minister for Holy Communion and a lecturer on Legal Aspect of Marriage Pre-Cana and Marriage Preparation Seminar at the Parish Church of St. Peter in Commonwealth Avenue, Quezon City.

Although the Court believes that the respondent is not inherently lacking in moral fiber as shown by his conduct prior to his disbarment, we are not convinced that he had sufficiently achieved moral reformation.

In Rodolfo M. Bernardo v. Atty. Ismael F. Mejia,26 the Court, in deciding whether or not to reinstate Atty. Mejia, considered that 15 years had already elapsed from the time hewas disbarred, which gave him sufficient time to acknowledge his infractions and to repent. The Court also took into account the fact that Atty. Mejiais already of advanced years, has long repented, and suffered enough. The Court also notedthat he had made a significant contribution by putting up the Mejia Law Journal containing his religious and social writings; and the religious organization named "El Cristo Movement and Crusade on Miracle of the Heart and Mind." Furthermore, the Court considered that Atty. Mejia committed no other transgressions since he was disbarred.

Similarly in Adez Realty, Inc. v. Court of Appeals,27 the Court granted the reinstatement of 
the disbarred lawyer (found to be guilty of intercalating a material fact in a CA decision) and considered the period of three (3) years as sufficient time to do soul-searching and to prove that he is worthy to practice law. In that case, the Court took into consideration the disbarred lawyer’s sincere admission of guilt and repeated pleas for compassion.

Also in Valencia v. Antiniw,28 the Court reinstated Atty. Antiniw (who was found guilty of malpractice in falsifying a notarized deed of sale and subsequently introducing the document in court) after considering the long period of his disbarment (almost 15 years). 

The Court considered that during Atty. Antiniw’s disbarment, he has been persistent in reiterating his apologies to the Court, has engaged in humanitarian and civic services, and retained an unblemished record as an elected public servant, as shown by the testimonials of the numerous civic and professional organizations, government institutions, and members of the judiciary.

In all these cases, the Court considered the conduct of the disbarred attorney before and after his disbarment, the time that had elapsed from the disbarment and the application for reinstatement, and more importantly, the disbarred attorneys’ sincere realization and acknowledgement of guilt.

In the present case, we are not fully convinced that the passage of more than four (4) years is sufficient to enable the respondent to reflect and to realize his professional transgressions.

We emphasize that this is the second time that the respondent was accused and was found guilty of gross misconduct. The respondent, in an earlier case of Plus Builders, Inc. v. Atty. Anastacio E. Revilla,Jr.,29was likewise found guilty of gross misconduct for committing willful and intentional falsehood before the court; misusing court procedure and processes to delay the execution of a judgment; and collaborating with nonlawyers in the illegal practice of law – mostly the same grounds on which the Decision dated December 4, 2009 (2nd disbarment) was based. In Plus Builders, we granted the respondent’s motion for reconsideration and reduced the penalty of suspension from the practice of law from two (2) years to six (6) months out of compassion to the respondent.

Considering the respondent’s earlier disbarment case(and subsequent reduction of the penalty imposed as an act of clemency), and another disbarment case against him still pending review by the Court, we are not fully and convincingly satisfied that the respondent has already reformed. The period of five (5) years is likewise not considerably long considering the nature and perversityof the respondent’s misdeeds. We believe that it is still early for the Court to consider the respondent’s reinstatement.

Furthermore, we are not persuaded by the respondent's sincerity in acknowledging his guilt.While he  expressly stated in his appeal that he had taken full responsibility of his misdemeanor, his previous inclination to pass the blame to other individuals, to invoke self-denial, and to make alibis for his wrongdoings, contradicted his assertion. The respondent also failed to submit proof satisfactorily showing his contrition. He failed to establish by clear and convincing evidence that he is again worthy of membership in the legal profession. We thus entertain serious doubts that the respondent had completely reformed.

As a final word, while the Court sympathizes with the respondent's unfortunate physical condition, we stress that in considering his application for reinstatement to the practice of law, the duty of the Court is to determine whether he has established moral reformation and rehabilitation, disregarding its feeling of sympathy or pity. Surely at this point, this requirement was not met. Until such time when the respondent can demonstrate to the Court that he has completely rehabilitated himself and deserves to resume his membership in the Bar, Our decision to disbar him from the practice of law stands.

x x x."

Read - 
A.C. No.7054, November 11, 2014
CONRADO N. QUE, Complainant, 
vs. ATTY. ANASTACIO E. REVILLA, JR., Respondent.


Friday, April 17, 2015

Elements of the crime of theft

"x x x.
The elements of the crime of theft as provided for in Article 308[1] of the Revised Penal Code are as follows: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[2] Theft becomes qualified when any of the following circumstances under Article 310[3] is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.[4]

Here, the prosecution was able to prove beyond reasonable doubt that the amount of P797,187.85 taken does not belong to petitioner but to VCCI and that petitioner took it without VCCI’s consent and with grave abuse of confidence by taking advantage of her position as accountant and bookkeeper. The prosecution’s evidence proved that petitioner was entrusted with checks payable to VCCI or Viva by virtue of her position as accountant and bookkeeper. She deposited the said checks to the joint account maintained by VCCI and Jefferson Tan, then withdrew a total of P797,187.85 from said joint account using the pre-signed checks, with her as the payee. In other words, the bank account was merely the instrument through which petitioner stole from her employer VCCI.
x x x."

See - 


Facts found by the trial court, as affirmed in toto by the CA, are as a general rule, conclusive upon the Supreme Court

"x x x.
We find no cogent reason to disturb the above findings of the trial court which were affirmed by the CA and fully supported by the evidence on record. Time and again, the Court has held that the facts found by the trial court, as affirmed in toto by the CA, are as a general rule, conclusive upon this Court[5] in the absence of any showing of grave abuse of discretion. In this case, none of the exceptions to the general rule on conclusiveness of said findings of facts are applicable.[6] The Court gives weight and respect to the trial court’s findings in criminal prosecution because the latter is in a better position to decide the question, having heard the witnesses in person and observed their deportment and manner of testifying during the trial.[7] Absent any showing that the lower courts overlooked substantial facts and circumstances, which if considered, would change the result of the case, this Court gives deference to the trial court’s appreciation of the facts and of the credibility of witnesses.
x x x."



Looking into the food system of PH inmates

See - Looking into the food system of PH inmates

"x x x.

MANILA, Philippines – The Universal Declaration of Human Rights states that the right to food covers every human being – even those in conflict with the law.
To be more specific, the Standard Minimum Rules for the Treatment of Prisoners (SMRTP) set by the United Nations explicitly order administrations to provide people in confinement with food.
If prisoners or detainees – or anyone in any form of detention – are deprived of adequate food, it can be considered “torture or inhuman and degrading treatment.”
In the Philippines, the right to food of prisoners is embodied in the guidelines of the Bureau of Jail Management and Penology (BJMP) and the Bureau of Corrections (BuCor).
The BJMP of the Department of the Interior and Local Government (DILG) handles provincial, city, district, and municipal jails where inmates undergoing trial are confined. The inmates in jails are called detainees.
BuCor – under the Department of Justice (DOJ) – oversees the national prisons and penitentiaries such as the New Bilibid Prison in Muntinlupa City. The people confined here are those serving more than 3 years and are called prisoners.
Philippine setting
According to the Inmate’s Orientation Sheet of the BJMP, the right to adequate food is in accordance to the Prisoner Subsistence Allowance (PSA).
Meanwhile, Republic Act No. 10575 or the Bureau of Corrections Act of 2013 mandates that “the safekeeping of inmates shall include decent provision of quarters, food, water and clothing in compliance with established United Nations standards.”
According to the 2015 budget of BuCor, the daily allowance for food of each prisoner is P50 ($1.13)*. For 41,413 “assumed” number of prisoners, the total budget amounts to P755,787,250 ($17,027,886.74).
The same daily subsistence allowance is given to each detainee of the BJMP. The amount P1,555,338,000 ($35,041,765.14) covers 85,224 detainees, according to the bureau’s 2015 budget.
In summary, the total of 3 meals each detainee/prisoner consumes should not exceed P50: P10 ($.10) for breakfast, P20 ($.45) for lunch, and P20 ($.45) for dinner.
Okay for adequate food?
The UN Council on Human Rights also mandates that in addition to what's supposed to be given in the usual hours, food provided should be adequate to maintain health and strength, should be of decent quality, and be properly prepared and served.
Is this amount enough to provide “food of nutritional value” as mandated by the United Nations?
The Pinggang Pinoy, the daily food guide developed by the Food and Nutrition Research Institute (FNRI), said that a nutritious meal consists of one cup of rice, one cup of vegetables, one portion of meat, and one fruit.
However, P439 ($.9.79) is needed each day to feed 5 people. If divided, it means that P87.8 ($1.9) should be allotted each day for 3 nutritious meals of one person. (READ: Is the minimum wage enough for a day's worth of nutritious meals?)
The mandated subsistence allowance of P50 is only 56% of the needed budget.
However, according to the Revised Standards on Food Service Management (FSM) of the BJMP, weekly menus are prepared with an inmate representative and are well reviewed to “ensure that the nutrition contents are based on and follow the recommended daily nutritional requirements for normal healthy individuals.”
Meanwhile, BuCor boasted of “improved catering services based on value for money” in their 2013 Accomplishment Report. According to the report, a policy change in the system focuses now on selecting the food contractor that can provide the best food nutritional content with the given budget.
The previous system of BuCor that focused so much on finding the lowest-bidding contractor led to low quality food and poor nutrition among inmates, it added.
However, human rights groups call on the “inhuman and degrading” conditions experienced by prisoners and detainees – including the bad food system.
According to Karapatan or the Alliance for the Advancement of People’s Rights, there are cases where detainees are served with “below standard nutrition” meals consisting of a cup of rice, porridge for breakfast, a cup full of water boiled with squash or sayote, half a can of sardines for lunch, and an egg or a small fish, and a cup of rice for dinner.
NATIONAL BILIBID PRISON. The NBP of the Bureau of Corrections is the main insular penitentiary. File photo of Rappler NATIONAL BILIBID PRISON. The NBP of the Bureau of Corrections is the main insular penitentiary. File photo of Rappler
The group added that prisoners are threatened against complaining about the food rations.
Meanwhile, in 2005, Hurights Osaka released a report on the situation behind bars in Manila City Jail. According to the report, inmates likened their meals “which would look like a feed, mush or worse, slop” to the way “cows are fed in ranches” and often call their mealtime as ranch time. The food, it said, is of “little nutritional value and prepared in an unsanitary way.”
Exceptions, privilege of the 'VIPs'?
Aside from the accusations of food below the appropriate standard in several prisons and jails, the food system is also laden with controversies.
As much as possible, the budget given should be followed in order to not overspend and compromise other factors.
However, it seems not the case for some controversial inmates.
During her first week of detention in Fort Sto Domingo in Sta Rosa, Laguna, the alleged mastermind of the multi-billion-peso pork barrel scam, Janet Napoles, was provided meals that looked like they exceeded the daily allowance. (READ: Not VIP? Napoles meals exceed budget for ordinary inmate)
In addition, a plunder complaint was filed against top officials in the BJMP in line with alleged misappropriation of funds.
According to Jail Inspector Angelina Bautista who filed the case at the Office of the Ombudsman on March 20, 2015, the BJMP still reported expenditures for subsistence allowance for inmates despite the existing memorandum of agreement (MOA) that the provincial government of Bataan will appropriate funds for the food of the inmates.
This MOA will last during the transition period or until the jurisdiction of the Bataan Provincial Jail is transferred to the BJMP.
“The accumulated amount from August 10, 2010 to August 2013 could reach up to P50 million ($1.126 million),” Bautista said.
Nelson Mandela once said that "no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” –
x x x."