China′s nine-dashed line has ′no basis under international law′ | Asia | DW.COM | 27.07.2015

See - China′s nine-dashed line has ′no basis under international law′ | Asia | DW.COM | 27.07.2015





"x x x.

TERRITORIAL DISPUTES

China's nine-dashed line has 'no basis under international law'

Manila is hoping for the Permanent Court of Arbitration to declare invalid most of Beijing's South China Sea claims. DW speaks to Supreme Court Justice Antonio Carpio about the case and its likely implications.

China's territorial claims in the disputed South China Sea came under international scrutiny earlier this month when the Permanent Court of Arbitration in The Hague began hearing a suit filed by the Philippines. Manila has asked the tribunal - which operates under the United Nations Convention on the Law of the Sea (UNCLOS) - to declare China's claims to virtually all the South China Sea invalid, arguing that Beijing's actions have trampled on other nations' rights and have caused considerable damage to the environment.

The hearings started early July examining China's contention that the tribunal doesn't have the authority to assume jurisdiction over the Philippine case. Beijing, which for this reason has refused to take part in the case, has called on Manila to withdraw the case and engage instead in bilateral negotiations.

Maritime lawyers note the Chinese routinely outline the scope of there claims with reference to the so-called nine-dashed line (main picture) which takes in about 90 percent of the 3.5 million square kilometers South China Sea on Chinese maps. Vietnam, Malaysia, Brunei and Taiwan also challenge Chinese claims over most of the resource-rich sea, but have yet to join the Philippine suit. The US has expressed concern that China's efforts to build artificial islands in the area carry a military dimension that could undermine the US' naval and economic power in the Pacific.

Carpio: Almost all scholars of the law of the sea, except those from China, agree that the nine-dashed line egregiously violate UNCLOS

In an interview with DW, Antonio T. Carpio, a Senior Associate Justice of the Supreme Court of the Philippines, talks about why the court is likely to rule in the Philippines' favor and why the reputational cost to China would be immense should Beijing decide to ignore a ruling adverse to China.

DW: What is at the core of the Philippines' case at The Hague against Beijing's South China Sea claims?

Antonio Carpio: The core of the Philippines' case is that China's 9-dashed lines, under which China claims 85.7 percent of the waters of the South China Sea, are contrary to international law, in particular to UNCLOS.

Put differently, can a coastal state like China claim maritime zones from its coastlines beyond the 350 nautical miles (NM) maximum limit (200 NM Exclusive Economic Zone (EEZ) and additional 150 NM extended continental shelf) allowed under UNCLOS? Such a claim, whatever the reason may be, is clearly invalid under UNCLOS, the constitution for the oceans and seas of our planet. China and the Philippines are parties to UNCLOS.

What would the Philippines like the court to ultimately decide on?

The Philippines is asking the tribunal to declare China's nine-dashed line void as a claim to maritime zones, and that the waters enclosed by the lines cannot prevail over the EEZ and extended continental shelf of the Philippines.

The Philippines is also asking the tribunal to declare that certain geologic features are either rocks entitled only to a 12 NM territorial sea or low-tide elevations entitled to no maritime zone whatsoever, regardless of what state has sovereignty over these geologic features.

China recently urged the Philippines to ditch its attempt to solve South China Sea territorial disputes and instead negotiate with Beijing directly. What do you make of Beijing's decision to refuse the court's jurisdiction and not to take part in the proceedings?

China's refusal to participate in the arbitral proceedings simply means that China knows it cannot justify its nine-dashed line claim under UNCLOS.

• 
  BEIJING'S ISLAND-BUILDING IN THE SOUTH CHINA SEA

  Runway 'nearly complete'

  China is expanding the construction of its facilities on Fiery Cross Reef. Provided by the Asia Maritime Transparency Initiative (AMTI), this June 28 picture reveals Beijing has nearly completed a 3,000 meter (9,800-foot) airstrip, long enough to accommodate most Chinese military aircraft. Two helipads, up to 10 satellite communications antennas, and one possible radar tower are also visible.

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Almost all scholars of the law of the sea, except those from China, agree that the nine-dashed line egregiously violate UNCLOS. In this day and age, it is incredible that a state is still claiming almost an entire sea as its sovereign waters.

How confident are you that the court will rule in the Philippines' favor?

If the tribunal will allow China's nine-dashed line to stand, then that means UNCLOS does not apply to the South China Sea. If UNCLOS does not apply to a vital sea like the South China Sea, where one-half of the world's seaborne trade passes through, then there will be grave doubt whether UNCLOS can resolve similar disputes in other oceans and seas of our planet. It will be the beginning of the end of UNCLOS.

What is likely to happen on the ground even if the Philippines were to get a favorable decision from the international tribunal?

Beijing has already announced that it will ignore any ruling of the tribunal that is adverse to China. The Philippines will be left with no alternative but to bring China's defiance of international law to the UN General Assembly and other international fora. In the end, the reputational cost to China will be immense.

Like many other states that initially defied adverse rulings of international tribunals, China will realize that the cost of compliance with the ruling is far lesser than the cost of non-compliance.

I expect that in the end, after many years, China will eventually realize and accept that no state, whether coastal or landlocked, will ever agree to China's claim of sovereignty or sovereign jurisdiction to almost the entire South China Sea.

What do you make of the stance taken so far on the issue by other ASEAN members and South China Sea claimants?

DW RECOMMENDS

A look at the US stance on the South China Sea dispute

Amid rising tensions in the South China Sea, US Defense Secretary Ashton Carter has said the US will continue to play a "pivotal" role in Asia. DW spoke to analyst Ernest Bower about Washington's role in the dispute. (02.06.2015)

A look at China's stance on the South China Sea dispute

Indonesia 'in a bind' over Beijing's assertiveness in South China Sea

Beijing's South China Sea projects 'highly disruptive' to local ecosystems

Other ASEAN claimant states are situated differently from the Philippines. Some of them have strong trade relations with China. At this time they are not prepared to question China's nine-dashed line before an UNCLOS tribunal even though large areas of their EEZs are also encroached by the nine-dashed line.

However, China's massive reclamations in the Spratlys, and the construction of Chinese naval and airbases in the reclaimed areas close to their coasts, have certainly unnerved them. Only time will tell whether they can maintain their present stance.

Do you think ASEAN's stance will/should change if the court rules in the Philippines' favor?

I think if the tribunal rules that it has jurisdiction to determine the validity of the nine-dashed lines, other ASEAN claimant states will more openly and strongly question the nine-dashed lines. If the tribunal rules on the merits that China's nine-dashed line violates UNCLOS, then other ASEAN claimant states may even file their own cases if China continues to enforce the nine-dashed lines.

You are an international law expert and Senior Associate Justice. What is your personal involvement in the case?

I am only doing my civic duty as a Filipino citizen to defend the Philippines against China's encroachment of our country's maritime zones - maritime space guaranteed under UNCLOS. I do this by giving lectures, here and abroad, on the South China Sea dispute. The world must know that China's nine-dashed line has no basis whatsoever under international law.

Antonio T. Carpio is an incumbent Senior Associate Justice of the Supreme Court of the Philippines.

DW RECOMMENDS

Beijing's island-building in the South China Sea   

• Date 27.07.2015
• Author Interview: Gabriel Domínguez
• Related Subjects Philippines, International Criminal Court (ICC), Asia, People's Republic of China

x x x."

Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure provides for the “variance doctrine”

G.R. No. 211002, January 21, 2015, RICHARD RICALDE, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.


“x x x.

Lastly, we address petitioner’s invocation of the “variance doctrine” citing People v. Sumingwa.⁠24

Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure provides for the “variance doctrine”:

SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another.—An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former continue or form part of those constituting the latter.

In Sumingwa, the accused in Criminal Case Nos. 1649 and 1654 was charged with qualified rape but was convicted for the lesser offense of acts of lasciviousness committed against a child under Article III, Section 5(b) of Republic Act No. 7610⁠25 since “there was no penetration, or even an attempt to insert [the accused’s] penis into [the victim’s] vagina.”⁠26

In the instant case, no variance exists between what was charged and what was proven during trial. The prosecution established beyond reasonable doubt all elements of the crime of rape through sexual assault.

XXX testified that he “felt something was inserted [into his] anus.”⁠27 The slightest penetration into one’s sexual organ distinguishes an act of lasciviousness from the crime of rape. People v. Bonaagua⁠28 discussed this distinction:

It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or thelabia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case, such logical interpretation could not be applied. It must be pointed out that the victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through sexual assault.⁠29 (Emphasis supplied)

People v. Bonaagua considers a woman’s private organ since most if not all existing jurisprudence on rape involves a woman victim. Nevertheless, this interpretation can apply by analogy when the victim is a man in that the slightest penetration to the victim’s anal orifice consummates the crime of rape through sexual assault.

The gravamen of the crime is the violation of the victim’s dignity. The degree of penetration is not important. Rape is an “assault on human dignity.”⁠30

People v. Quintos⁠31 discussed how rape causes incalculable damage on a victim’s dignity, regardless of the manner of its commission:

The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar as these define the manners of commission of rape. However, it does not mean that one manner is less heinous or wrong than the other. Whether rape is committed by nonconsensual carnal knowledge of a woman or by insertion of the penis into the mouth of another person, the damage to the victim’s dignity is incalculable. Child sexual abuse in general has been associated with negative psychological impacts such as trauma, sustained fearfulness, anxiety, self-destructive behavior, emotional pain, impaired sense of self, and interpersonal difficulties. Hence, one experience of sexual abuse should not be trivialized just because it was committed in a relatively unusual manner.

“The prime purpose of [a] criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.” Crimes are punished as retribution so that society would understand that the act punished was wrong.

Imposing different penalties for different manners of committing rape creates a message that one experience of rape is relatively trivial or less serious than another. It attaches different levels of wrongfulness to equally degrading acts. Rape, in whatever manner, is a desecration of a person’s will and body. In terms of penalties, treating one manner of committing rape as greater or less in heinousness than another may be of doubtful constitutionality.

However, the discriminatory treatment of these two acts with the same result was not raised in this case. Acknowledging that every presumption must be accorded in favor of accused in criminal cases, we have no choice but to impose a lesser penalty for rape committed by inserting the penis into the mouth of the victim.⁠32 (Citations omitted)

We affirm petitioner’s conviction but modify the penalty imposed by the lower court to the penalty under Article III, Section 5(b) of Republic Act No. 7610 known as the “Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act”⁠33:

SEC. 5. Child Prostitution and Other Sexual Abuse.— Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpertua shall be imposed upon the following:

. . . .

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case maybe: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; (Emphasis supplied)

The Implementing Rules and Regulations of Republic Act No. 7610 defines “lascivious conduct”:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.⁠34

In People v. Chingh,⁠35 the accused was charged with rape “for inserting his fingers and afterwards his penis into the private part of his minor victim[.]”⁠36 The Court of Appeals found the accused guilty of two counts of rape: statutory rape and rape through sexual assault⁠37. This court modified the penalty imposed for rape through sexual assault to the penalty provided in Article III, Section 5(b) of Republic Act No. 7610, discussing as follows:

It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10) years old. This calls for the application of R.A. No. 7610, or “The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act,” which defines sexual abuse of children and prescribes the penalty therefor in Section 5(b), Article III, to wit:

. . . .

In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the penalty prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and considering further that Armando’s act of inserting his finger in VVV’s private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period.

The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Article 366, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its medium period than the one who commits Rape Through Sexual Assault, which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those “persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.”⁠38 (Emphasis supplied, citations omitted)

Thus, “for Rape Through Sexual Assault under paragraph 2, Article 266-A, [the accused Chingh was] sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months, and twenty (20) days of reclusion temporal, as maximum.”⁠39

The imposable penalty under Republic Act No. 7610, Section 5(b) “for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.” This penalty is higher than the imposable penalty of prision correccional for acts of lasciviousness under Article 336 of the Revised Penal Code.

In enacting Republic Act No. 7610, the legislature intended to impose a higher penalty when the victim is a child.

The fact that XXX was only 10 years old when the incident happened was established by his birth certificate, and this was admitted by the defense⁠40. His age of 10 years old was alleged in the Information⁠41. The higher penalty under Republic Act No. 7610, as discussed in People v. Chingh, applies in this case.

Having sex with a 10-year-old is child abuse and is punished by a special law (Republic Act No. 7610). It is a progression from the Revised Penal Code to provide greater protection for children. Justice Velasco suggests that this is not so. He anchors his view on his interpretation that Republic Act No. 7610 requires a showing that apart from the actual coerced sexual act on the 10-year-old, the child must also be exploited by prostitution or by other sexual acts. This view is inaccurate on grounds of verba legis and ratione legis.

The first paragraph of Article III, Section 5 of Republic Act No. 7610 clearly provides that “children . . . who . . . due to the coercion . . . of any adult . . . indulge in sexual intercourse . . . are deemed to be children exploited in prostitution and other sexual abuse.” The label “children exploited in . . . other sexual abuse” inheres in a child who has been the subject of coercion and sexual intercourse.

Thus, paragraph (b) refers to a specification only as to who is liable and the penalty to be imposed. The person who engages in sexual intercourse with a child already coerced is liable.

It does not make sense for the law not to consider rape of a child as child abuse. The proposal of Justice Velasco implies that there has to be other acts of a sexual nature other than the rape itself that will characterize rape as child abuse. One count of rape is not enough. Child abuse, in his view, is not yet present with one count of rape.

This is a dangerous calculus which borders on judicial insensitivity to the purpose of the law. If we adopt his view, it would amount to our collective official sanction to the idea that a single act of rape is not debilitating to a child. That a single act of rape is not a tormenting memory that will sear into a child’s memory, frame his or her view of the world, rob him or her of the trust that will enable him or her to have full and diverse meaningful interactions with other human beings. In my view, a single act of sexual abuse to a child, by law, is already reprehensible. Our society has expressed that this is conduct which should be punishable. The purpose and text of the law already punish that single act as child abuse.

Rape is rape. Rape of a child is clearly, definitely, and universally child abuse.

Justice Velasco further observes that the right to due process of the accused will be violated should we impose the penalty under Republic Act No. 7610. I disagree.

The Information was clear about the facts constitutive of the offense. The facts constitutive of the offense will suggest the crime punishable by law. The principle is that ignorantia legis non excusat. With the facts clearly laid out in the Information, the law which punishes the offense should already be clear and the accused put on notice of the charges against him.

Additionally, there is no argument that the accused was not represented by counsel. Clear from the records is the entry and active participation of his lawyer up to and including this appeal.

On the award of damages, we maintain the amount of P30,000.00 in favor of XXX as a victim of rape through sexual assault, consistent with jurisprudence⁠42.

This court has stated that “jurisprudence from 2001 up to the present yields the information that the prevailing amount awarded as civil indemnity to victims of simple rape committed by means other than penile insertion is P30,0001.”⁠43

This statement considered the prevailing situation in our jurisprudence where victims of rape are all women. However, as in this case, men can also become victims of rape through sexual assault, and this can involve penile insertion.

WHEREFORE, the Court of Appeals Decision in CA-G.R. C.R. No. 34387 dated August 28, 2013 is AFFIRMED with MODIFICATION in that for rape through sexual assault under Article 266-A, paragraph 2, accused-appellant Richard Ricalde is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. He is ordered to pay the victim civil indemnity in the amount of P30,000.00 and moral damages likewise in the amount of P30,000.00, both with interest at the legal rate of 6% per annum from the date of finality of this judgment until fully paid.

SO ORDERED.

x x x."

The Supreme Court has explained the merely corroborative character of expert testimony and the possibility of convictions for rape based on the victim’s credible lone testimony

G.R. No. 211002, January 21, 2015, RICHARD RICALDE, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.



“x x x.

In People v. Soria,⁠20 this court discussed that a victim need not identify what was inserted into his or her genital or anal orifice for the court to find that rape through sexual assault was committed:

We find it inconsequential that “AAA” could not specifically identify the particular instrument or object that was inserted into her genital. What is important and relevant is that indeed something was inserted into her vagina. To require “AAA” to identify the instrument or object that was inserted into her vagina would be contrary to the fundamental tenets of due process.⁠21

Second, petitioner’s reliance on the medico-legal’s finding of no recent trauma in XXX’s anal orifice, or any trace of spermatozoa, lacks merit. The absence of spermatozoa in XXX’s anal orifice does not negate the possibility of an erection and penetration. This result does not contradict the positive testimony of XXX that the lower courts found credible, natural, and consistent with human nature.

This court has explained the merely corroborative character of expert testimony and the possibility of convictions for rape based on the victim’s credible lone testimony.⁠22

In any case, the medico-legal explained that his negative finding of trauma in the anal orifice does not remove the possibility of an insertion considering the flexibility of the sphincter: x x x.


X x x.”

Leeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse.

G.R. No. 211002, January 21, 2015, RICHARD RICALDE, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.



“x x x.

Jurisprudence holds that “the findings of the trial court, its calibration of the testimonies of the witnesses, and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded respect if not conclusive effect.”⁠7

The trial court found that XXX’s “straightforward, unequivocal and convincing testimony”⁠8 sufficiently proved that petitioner committed an act of sexual assault by inserting his penis into XXX’s anal orifice.⁠9 There was no showing of ill motive on the part of XXX to falsely accuse petitioner.⁠10 The Court of Appeals accorded great weight to the trial court’s findings and affirmed petitioner’s conviction.⁠11

No cogent reason exists for this court to overturn the lower courts’ findings.

First, petitioner’s argument highlighting alleged inconsistencies in XXX’s testimony fails to convince.

In a long line of cases,⁠12 this court has given full weight and credit to the testimonies of child victims. Their “[y]outh and immaturity are generally badges of truth and sincerity.”⁠13 XXX, then only 10 years old, had no reason to concoct lies against petitioner.⁠14

This court has also held that “[l]eeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse.”⁠15

Petitioner contends that XXX did not categorically say that a penis was inserted into his anal orifice, or that he saw a penis or any object being inserted into his anal orifice.

This contradicts petitioner’s earlier statement in his appellant’s brief⁠16 that “[a]lthough it is true that the Supreme Court, in a long line of cases, did not rule out the possibility of rape in cases where the victim remained physically intact at the time she or he was physically examined, still, it bears stressing that in the instant case, the private complainant testified that the accused-appellant’s penis fully penetrated his anus.”⁠17


X x x.”

Anti-Rape Law of 1997⁠ classified rape as a crime against persons⁠ and amended the Revised Penal Code to include Article 266-A on rape through sexual assault

G.R. No. 211002, January 21, 2015, RICHARD RICALDE, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

“x x x.

The Anti-Rape Law of 1997^⁠1  classified rape as a crime against persons^⁠2  and amended the Revised Penal Code to include Article 266-A on rape through sexual assault:

Article 266–A. Rape; When and How Committed.—Rape is Committed—

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present;

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied)

Rape under the second paragraph of Article 266-A is also known as “instrument or object rape,”^⁠3 “gender-free rape,”^⁠4  or “homosexual rape.”^⁠5   The gravamen of rape through sexual assault is “the insertion of the penis into another person’s mouth or anal orifice, or any instrument or object, into another person’s genital or anal orifice.”⁶ 

X x x.”

PRESIDENT BENIGNO AQUINO III’S 2015 STATE OF THE NATION ADDRESS, JULY 27, 2015 - Excerpts; with reference to law and justice issues.

“x x x.

Noong mga panahong iyon, maski bata, natutuhan na ang salitang “scam.” Naaalala siguro ninyo: Ang Hello Garci, na sinagot lang ng “I am sorry.” Ang mga tunay na bank account ng bogus na si Jose Pidal. Ang tinangkang Constitutional Assembly para habambuhay na manatili sa puwesto. Ang EO 464 na nagtangkang supilin ang katotohanan. Ang pagdeklara ng State of Emergency, para umilag sa checks and balances ng 1987 Constitution ukol sa Martial Law. Ang midnight appointments. Ang Calibrated Preemptive Response na ginamit laban sa mga nagpoprotesta. Sa wika pa lang po, mali na ito. Paano nauuna ang response? Para mo na ring sinabing nag-reply ka sa taong hindi ka naman tinext.


X x x.


Bawat opisyal ng gobyerno, nanumpang maging makatarungan sa kapwa at sumunod sa batas. Pero klaro: Ang ginawa ng nauna sa atin, kabaliktaran nito. Nakita natin ang pinakamasahol na ehemplo noong Nobyembre ng 2009, nang pinaslang ang 58 na Pilipino sa Maguindanao. Isipin lang ito, mali na. Ginawa nila, lalong mali pa. Pero ang matindi po: Naniwala silang malulusutan ito, dahil nasa poder sila—kaya nila itinuloy. Ilang halimbawa pa lang po ito na batid ninyo, napakarami pang iba.


Sa ganitong situwasyon, masisisi ba natin ang mga kababayang lumikas na dahil walang makitang pag-asa?


X x x.


Ang Ombudsman na itinalaga para bantayan ang katiwalian, diumano’y nagbulag-bulagan sa mga eskandalo ng nakaraang administrasyon. Na-impeach siya sa Kamara, at nagbitiw sa puwesto bago malitis ng Senado. Ang Punong Mahistradong tila ba may pagkiling sa nag-appoint sa kanya, ay napatunayang naglihim ng yaman at ari-arian sa SALN, na-impeach ng Kongreso at na-convict ng Senado.


Kapalit nila, nagtalaga tayo ng mga taong may integridad at sariling pasya. Ang bagong Ombudsman: si Conchita Carpio-Morales. Ang bagong Chief Justice: si Ma. Lourdes Sereno. Ngayon, may sapat na panahon na siyang magpatupad ng reporma sa Hudikatura.


X x x.


Sa itaas, gitna, o ibaba ng burukrasya, napakarami nang sinuspinde, tinanggal sa puwesto, sinampahan ng kaso, o di kaya’y nasa piitan. Kung may nagdududa pang tunay nang nakapiring ang katarungan, maganda po sigurong ituon nila ang pansin sa tatlong senador na kasalukuyang naka-detain, at sa dating pangulong naka-hospital arrest.


X x x.


May mga magsasabi: mag-move on na raw tayo. Ako naman po ay naniniwala sa sinabi ni George Santayana: Ang makalimot sa mali ng nakaraan, garantisadong uulitin ito.


Tingnan po ninyo ang ginagawa ng mga nagkasala sa atin. Una, ipinapalimot ang kanilang mga nagawa. Pagkatapos, sasabihin nila, “Kawawa naman kami.” Sinamantala na nga tayo, sinasamantala pa ang likas nating pagkamaawain, para tuluyang makatakas sa pananagutan. Ang kasunod, gagawa sila ng paraan para makabalik sa poder. Di ba’t iyan naman talaga ang kanilang master plan, upang patuloy pa tayong pagsamantalahan?


X x x.


Natutuhan ko nga po sa aking mga magulang, sa simbahan, at sa mga proseso ng batas: Anumang paghihilom ay nagsisimula sa pag-amin at pagsisisi ng nagkasala. May naalala ba kayong nagsabing, “Sorry sa pagnanakaw at pang-aabuso, handa na akong magbago”? Ang sa akin lang po: Makakamove-on lang tayo kapag nakamtan ang katarungan.


X x x.


Nagpatuloy nga po ang pagsasaayos ng mga institusyon, upang muli silang maituon sa tunay nilang mandato. Halimbawa: Sa Government Owned and Controlled Corporations. Ang mga itinalaga dito, nanumpang pangalagaan ang yaman ng bayan. Ang masakit, maski nalulugi na nga ang mga GOCC, kaliwa’t kanang benepisyo’t insentibo pa ang ipinamudmod nila sa kanilang sarili. Kumbaga sa baka, habang ginagatasan ang institusyon, gusto pang karnehin. Kaya ang dibidendo ng nakaraang administrasyon, 84.18 billion pesos lang sa loob ng siyam at kalahating taon.


Sa atin, nabawasan na ang GOCC’s sa pagpapasara ng mga nawalan na ng saysay, pero dahil pinatino ang palakad: Umabot na sa 131.86 billion pesos ang dibidendo sa loob ng 5 taon mula nang tayo po ay maupo. Hindi nga po malabong bago tayo bumaba sa puwesto ay madodoble na natin ang dibidendo ng ating pinalitan, na mas mahaba ang panahon para mag-ipon.


X x x.


Ganitong paninindigan din ang ipinamalas natin sa BIR, na siyang pinakamalaking revenue generating agency ng pamahalaan. Dumating tayong pinakamataas na sa kasaysayan ang 778.6 billion pesos na koleksyon noong 2008. Tinambakan natin ito. Noong 2012, 1.06 trillion pesos ang nakolekta ng BIR—ang unang pagkakataon sa kasaysayang tumawid ng 1 trillion pesos ang ating koleksyon. Nitong nakaraang taon, umakyat na ito sa 1.3 trillion pesos, at aabot pa sa 1.5 trillion pesos ang malilikom ngayong 2015. Limang taon lang ang kinailangan para mapantayan, mahigitan, at halos madoble ang pinakamalaking nakolekta ng ating sinundan. Nagawa ito nang tumutupad sa pangakong ‘di magpapataw ng bagong buwis, maliban sa Sin Tax Reform.


Paano narating ito? Simple lang po: Ako po ay naniniwala na mabait si Comm. Kim Henares. Si Comm. Kim Henares, walang tax evader na sinanto. Ngayon, 380 kaso na ang naisampa laban sa mga nagtangkang umiwas sa buwis. Ginawa rin niyang episyente ang sistema ng pagbabayad ng buwis, at sinigurong malinaw sa lahat ang kanilang tungkuling makiambag sa pag-angat ng bansa.


X x x.


Ang Cadastral Survey, na sinimulan pa noong taong 1913, tapos na natin. Inabot ng halos isang siglo ang mga nauna sa atin para matapos ang 46 percent nito. Ang mahigit kalahati pong natitira, nabuno natin sa 5 taon sa puwesto. Ito pong Cadastral Survey ang tumutukoy sa hangganan ng mga lupaing saklaw ng bawat lungsod, bayan, at lalawigan sa Pilipinas. Sa ARMM, halimbawa, para bang nanganganak ang lupa: Sabi ng mapa, 1.2 million hectares lang ang meron, pero kung susumahin ang idinedeklarang lupa, 3.7 million hectares ang inaabot. Ngayon, dahil naayos na ang land record system, wala nang nanganganak na lupa sa ARMM.


X x x.


Pangunahin siyempre po dito: Ang Bangsamoro Basic Law. Sa mga tutol sa batas na ito: Palagay ko, obligasyon ninyong magmungkahi ng mas magandang solusyon. Kung wala kayong alternatibo, ginagarantiya lang ninyong hindi maaabot ang pagbabago. Ilang buhay pa ang kailangang ibuwis para magising ang lahat sa obligasyong baguhin ang sirang status quo sa Muslim Mindanao?


X x x.


Inilalapit din po natin sa Kongreso ang Rationalization of Fiscal Incentives. Kung maipapasa ito, maitatama ang papatsa-patsang sistema ng pagbibigay insentibo at magiging mas makatwiran ang pagbubuwis sa mga negosyo. Hinihiling rin namin ang agarang pagtutok sa Unified Uniformed Personnel Pension Reform Bill, para tuluyang maisulong ang isang makatarungang sistemang pampensyon para sa kanila. Agaran po sanang maipasa ang batas na ito, dahil ngayon pa lang, trilyong piso na ang kakailanganin para pondohan ang pensyon ng unipormadong hanay. Kailangan ng awtorisasyon ng batas para matugunan ang masalimuot na sitwasyong ito.


X x x.


Naaalala ko rin po: Kumontra akong pagkaitan ang isang tao ng karapatang tumakbo sa puwesto, dahil lang sa kanyang apelyido. Bakit nga naman tayo gagawa ng batas para pigilang maglingkod ang gustong maglingkod?


Pero napapaisip po ako: May mali rin sa pagbibigay ng pagkakataong habambuhay na magpakasasa sa kapangyarihan ang isang tiwaling pamilya o indibiduwal. Ganyang kaisipan din ang dahilan kung bakit, noong may nagmungkahing manatili pa ako sa puwesto—kahit raw dagdag na tatlong taon lang—ako mismo ang tumutol dito. Di tayo makakasiguro kung malinis ang intensyon sa mga susunod, o kung nanaisin lang nilang habambuhay na maghari-harian para sa sariling interes. Panahon na para ipasa ang isang Anti-Dynasty Law.


X x x.


Dahil sa Kongreso, naipasa ang mga batas na kikilalanin bilang haligi ng transpormasyong sinisimulan natin ngayon. Sa Kamara at Senado, lalo na sa mga kasapi ninyong naging kabalikat sa Daang Matuwid nitong mga nagdaang taon: Salamat sa Philippine Competition Law, sa Act Allowing the Full Entry of Foreign Banks, at sa pag-amyenda sa Cabotage Law. Salamat sa Sin Tax Reform Act. Salamat sa Responsible Parenthood Act. Salamat sa lahat ng iba pang makabuluhang batas na inyong ipinasa. Tunay nga pong napakalaki ng naiaambag ng isang Kongresong determinadong maging katuwang sa pagsusulong ng pagbabago.


X x x.


Sa ugnayang panlabas: Ginawa at ginagawa rin po natin ang lahat para maging responsableng miyembro ng pandaigdigang komunidad; sa bawat hakbang, ang hinihiling lang natin ay ang makatuwiran at naaayon sa batas. Ang problema ng lahat, isinulong nating solusyonan ng lahat, at hindi ng iilang panig lamang. Alam din po ninyo, may hinaharap tayong hamon sa West Philippine Sea. Ang ating kabangga, di hamak na mas lamang, sa impluwensya man, ekonomiya, o puwersang militar. Pero sa batayan ng katuwiran at pagmamahal sa bayan, hindi po tayo nahuhuli. Gaya sa lahat ng iba pang suliranin, pagkakaisa po ang tanging susi para mapangalagaan ang ating karapatan.


X x x."

Separation pay, equivalent to one month's salary for every year of service, is awarded as an alternative to reinstatement when the latter is no longer an option, and is computed from the commencement of employment up to the time of termination, including the period of imputed service for which the employee is entitled to back wages. The salary rate prevailing at the end of the period of putative service should be the basis for computation.

REFORMIST UNION OF R. B. LINER, INC., HEVER DETROS, ET AL., vs. NATIONAL LABOR RELATIONS COMMISSION, R.B. LINER, INC., ET. AL., G.R. No. 120482. January 27, 1997.



“x x x.

As regards the illegal lockout-alleged by the petitioners, we agree with the NLRC's finding that the petitioners had sufficient basis to believe in good faith that the private respondents were culpable. The NLRC found this circumstance to justify the petitioners-employees' reinstatement; we add that since there was, in fact, no defiance of the Labor Secretary's return-to-work order, and no cause to decree the petitioners employees' dismissal in the first instance, reinstatement of the dismissed employees can be the only outcome in this case.

The possibility of reinstatement is a question of fact, and where a factual determination is indispensable to the complete resolution of the case, this Court usually remands the case to the NLRC. [44]In view, however, of both parties' assertion that reinstatement has become impossible because, as claimed by the petitioners, "the buses were already disposed of"; or as claimed by the private respondents, R.B. Liner, Inc., had "ceased operations" because "its Certificate of Public Convenience had expired and was denied renewal," and further, of "closure of the company" due to "lack of operational trucks and buses and high costs of units, " [45] there is no need to remand this case to the NLRC. Due to the infeasibility of reinstatement, the petitioners' prayer for separation pay must be granted. Separation pay, equivalent to one month's salary for every year of service, is awarded as an alternative to reinstatement when the latter is no longer an option, [46] and is computed from the commencement of employment up to the time of termination, including the period of imputed service for which the employee is entitled to back wages. The salary rate prevailing at the end of the period of putative service should be the basis for computation. [47]

The petitioners are also entitled to back wages. The payment of back wages "is a form of relief that restores the income that was lost by reason of unlawful dismissal." [48] The petitioners' dismissal being unwarranted as aforestated, with the employees dismissed after R.A. No. 6715 [49] took effect, then, pursuant to the said law and the latest rule on the matter laid down in the Resolution of 28 November 1996 of this Court, sitting en banc, in Bustamante vs. National Labor Relations Commission, [50] the petitioners-employees are entitled to payment of full back wages from the date of their dismissal up to the time when reinstatement was still possible, i.e., in this instance, up to the expiration of the franchise of R.B. Liner, Inc.

X x x.”

The burden of proving just and valid cause for dismissing employees from employment rests on the employer, and the latter's failure to do so results in a finding that the dismissal was unfounded

REFORMIST UNION OF R. B. LINER, INC., HEVER DETROS, ET AL., vs. NATIONAL LABOR RELATIONS COMMISSION, R.B. LINER, INC., ET. AL., G.R. No. 120482. January 27, 1997.



“x x x.

The only barrier then to the petitioners employees' reinstatement is their defiance of the Labor Secretary's .return to work order, which the private respondents claim as one reason to validly dismiss the petitioners employees. We disagree, however, with the finding that Lakas Reformist violated the said order.

It is incumbent upon the private respondents to substantiate the aforesaid defiance, as the burden of proving just and valid cause for dismissing employees from employment rests on the employer, and the latter's failure to do so results in a finding that the dismissal was unfounded. [36] The private respondents fell short of discharging this burden.

Contrary to the Labor Arbiter's and the NLRC's view, the union's undertaking to cause absentee employees to return to work was not an admission that its members defied the Labor Secretary's order. Those who did not report for work after the issuance of the Labor Secretary's order may not have been informed of such order, or they may have been too few so as to conclude that they deliberately defied the order. The private respondents ailed to eliminate these probabilities.

The most conclusive piece of evidence that the union members did not report for work would be the company's logbook which records the employees' attendance. [37] The private respondents' own witness, Administrative Manager Rita Erni, admitted that the logbook would show who among the employees reported for work. [38] The logbook was supposed to be marked as Exhibit "14" for the private respondents, but was withdrawn, [39] then the private respondents' counsel, Atty. Godofredo Q. Asuncion, later intimated that the said logbook was "stolen or lost." [40]

We are not prepared to conclude that the private respondents willfully suppressed this particular piece of evidence, in which case the same would be presumed adverse to them if produced. [41] However, other evidence indicate that the petitioners-employees complied with the Labor Secretary's return to work order, namely, the private respondents' Exhibits "11" to "11-E." [42] These are Conductors/Inspectors Daily Reports which detail the bus trips made by a particular conductor-driver tandem, as well as the numbers of the bus tickets used during each trip, and these reports are all dated 30 December 1989 — merely two days after Secretary Drilon issued his order — indicating that a number of employees did report for work in compliance with the Secretary's order. Moreover, the said exhibits were executed by some of the employees ordered dismissed by the Labor Arbiter. [43]

The private respondents intended the exhibits to prove that only a handful of employees reported for work following the issuance of the Labor Secretary's order, but they never established that these exhibits were the only reports filed on 30 December 1989, thus, there may have been employees Other than those named in the said exhibits who reported for work in obeisance to the Labor Secretary. Certainly, the Daily Reports accomplished by drivers and conductors would not reflect the attendance of mechanics. Besides, it was not shown by the private respondents that their employees were required to file the Conductors/Inspectors Daily Reports such that those who did not file would be instantly deemed absent.

The private respondents thus failed to satisfactorily establish any violation of the Labor Secretary's return-to-work order, and consequently, the Labor Arbiter's and the NLRC's contrary finding is not anchored on substantial evidence. Grave abuse of discretion was thus committed once more.

X x x.”

Compromise in labor cases

REFORMIST UNION OF R. B. LINER, INC., HEVER DETROS, ET AL., vs. NATIONAL LABOR RELATIONS COMMISSION, R.B. LINER, INC., ET. AL., G.R. No. 120482. January 27, 1997.



“x x x.

The private respondents can no longer contest the legality of the strike held by the petitioners on 13 December 1989, as the private respondents themselves sought compulsory arbitration in order to resolve that very issue, hence their letter to the Labor Secretary read, in part:

This is to request your good office to certify for compulsory arbitration or to assume jurisdiction over the labor dispute (strike continuing) between R.B. Liner Inc . . . . and the Lakas Manggagawa sa Pilipinas . . .

The current strike by Lakas which started on December 13, 1989 even before Certification Election could be held could not be resolved by the NCR Conciliation-Mediation Division after six meetings/conferences between the parties. [23]

The dispute or strike was settled when the company and the union entered into an agreement on 19 January 1990 where the private respondents agreed to accept all employees who by then, had not yet returned to work. By acceding to the peaceful settlement brokered by the NLRC, the private respondents waived the issue of the illegality of the strike.

The very nature of compulsory arbitration makes the settlement binding upon the private respondents, for compulsory arbitration has been defined both as "the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all the parties," [24] and as a mode of arbitration where the parties are "compelled to accept the resolution of their dispute through arbitration by a third party." [25] Clearly then, the legality of the strike could no longer be reviewed by the Labor Arbiter, much less by the NLRC, as this had already been resolved. It was the sole issue submitted for compulsory arbitration by the private respondents, as is obvious from the portion of their letter quoted above. The case certified by the Labor Secretary to the NLRC was dismissed after the union and the company drew up the agreement mentioned earlier. This conclusively disposed of the strike issue.

The Labor Code provides that the decision in compulsory arbitration proceedings "shall be final and executory ten (10) calendar days after receipt thereof by the parties." [26] The parties were informed of the dismissal of the case in a letter dated 14 February 1990, and while nothing in the record indicates when the said letter was received by the parties, it is reasonable to infer that more than ten days elapsed - - hence, the NLRC decision had already become final and executory - - before the private respondents filed their complaint with the Labor Arbiter on 13 July 1990. [27] A final judgment is no longer susceptible to change, revision, amendment, or reversal. [28] Neither the Labor Arbiter nor the NLRC, therefore, could review the same issue passed upon in NLRC Certified Case No. 0542, and their decisions to the contrary have been rendered in grave abuse of discretion amounting to excess of jurisdiction.

The agreement entered into by the company and the union, moreover, was in the nature of a compromise agreement, i.e., "an agreement between two or more persons, who for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing." [29] Thus, in the agreement, each party made concessions in favor of the other to avoid a protracted litigation. While we do not abandon the rule that "unfair labor practice acts are beyond and outside the sphere of compromises,"[30] the agreement herein was voluntarily entered into and represents a reasonable settlement, thus it binds the parties. [31] On this score, the Labor Code bestows finality to unvitiated compromise agreements:

Art. 227. Compromise agreements. - - Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion.

The agreement in this case complies with the above requisites, forged as it was under authority of the Labor Secretary, with representatives from both the union and the company signing the handwritten agreement to signify their consent thereto. The private respondents never. alleged in their answer [32] to the petitioners' complaint before the Labor Arbiter, nor in their complaint, [33] that the petitioners did: not comply with the agreement. The binding effect of the agreement on the private respondents is thus unimpaired.

The private respondents' cause likewise fails in light of Article 2037 of the Civil Code, which gives compromise agreements "the effect and authority of res judicata" upon the parties to the same, even when effected without judicial approval. [34] The Labor Arbiter and the NLRC therefore erroneously reviewed an issue which had already been laid to rest by the parties themselves and which, applying the principle ofres judicata they could no longer re-litigate. [35]

X x x.”

This is a sample motion to intervene. For legal research purposes of our readers.

MOTION TO INTERVENE

 THE UNDERSIGNED MOVANTS, by counsel, respectfully state:

I.                  THE MOVANTS.

1.      The Movants are homeowners and tenants of the xxx SUBDIVISION HOMEOWNERS ASSOCIATION, INC. (XXX).

2.    For convenience and for purposes of brevity and conciseness of the presentation of the contents of this motion, the names and personal circumstances of the Movants are enumerated in the attached “List of Movants”, marked as Annex “xxx” hereof.

2.1.          It will be noted that the total number of the Movants is more than __________________ (____).

2.2.        It is not advisable to enumerate all the names and personal circumstances of the Movants in Par. 1, supra, or in this particular Par. 2 of this Motion, because the very long list thereof would consume so many pages in the body of this Motion such that the reader of the Motion would unnecessarily suffer from vision and mental fatigue and psychological boredom just to go over the long list.

II.               THE COMPLAINT.

3.    NATURE. - The Complaint (denominated as “Petition” by Plaintiff) is one for INJUNCTION.

4.    PRAYER. – It prays for a judgment permanently restraining the Defendants from:

4.1.          Opening the pipes that the Defendants had installed in order to supply water to the residents of Xxx Subdivision;

4.2.        Further installing additional components to the pipe system that they had set up’

5.     Further, it prays for a judgment ordering the Defendants to remove the pipe system that they had set up.

6.    Furthermore, it prays for attorney’s fee:

6.1.          Acceptance Fee of PXXX; and

6.2.        Appearance Fee of PXXX per hearing.

7.     The basic allegations of the Plaintiff in the Complaint are as follows:

7.1.          That the Plaintiff is a Multi-Purpose Cooperative;

7.2.         That the xxx Board of Directors of XXX allowed the conversion of its Water Committee into a Cooperative (which is now the Plaintiff-Cooperative XXX).

7.3.         That the Housing and Land Use Regulatory Board (HLURB) ordered in xxx the conduct of a Referendum among the XXX members to ratify the right of the Plaintiff to control and operate the Water System of the Xxx Subdivision.

7.4.         That the xxx Referendum ratified the power of the Plaintiff-Cooperative to control and operate the said Water System.

7.5.         The Plaintiff knows of the existence of Board Resolution No. xxx, dated xxx, REVOKING Board Resolution No. xxx and Board Resolution No. xxx.  See Annex “xxx”, Complaint.

7.5.1.               Board Resolution No. xxx, dated xxx, was adopted by the XXX Board of Directors led by Defendant Xxx (President).

7.5.2.             The Plaintiff does not recognize it.

7.5.3.             The Plaintiff honors only the two (2) xxx board resolutions of the XXX Board of Directors – i.e.:

(a)             Board Resolution No. xxx and

(b)            Board Resolution No. xxx,

which converted the XXX Water Committee into a Cooperative (which is now the Plaintiff).

7.6.         That in March xxx the Defendants installed new pipe lines for the above purpose with the intent to operate and control the Water System of the Subdivision.

7.7.         That the Plaintiff would suffer financial losses if no injunction is issued against them.

8.    Clarificatory Notes:

8.1.          The Manila Water Co., Inc. (MWCI) in xxx dealt with XXX, by way of bulk water service agreement, to distribute water among the homeowners of the Xxx Subdivision.

8.2.        As of the time of filing with this Court of the instant Complaint  in March xxx, the Defendants (“Xxx Board”) were the ones officially dealing with, and being honored by, the MWCI for the distribution of water to and the collection of payments by the homeowners, by way of bulk water service agreement.

8.3.        The water controversy in the Subdivision has affected the elections of the XXX Directors and Officers for some years now.

8.3.1.              There are two (2) competing Boards of Directors of XXX.

8.3.2.            One is led by the group of Xxx Xxx, who is affiliated with the Plaintiff-Cooperative.

8.3.3.            The other is the group of Defendants Xxx Xxx, et. al.

III.           THE COMMENT (ANSWER).

9.    The pro se Comment (Answer), dated xxx, of the Defendant prays for the dismissal of the Complaint for lack of merit.

10.                        The Defendants allege in their pro se Comment (Answer):

10.1.     That the Defendants constitute the legitimate incumbent Board of Directors of XXX.

10.1.1.           The next regular annual election of XXX will be held  in xxx.

10.2.    That the Defendants have been holding office at the official XXX Office in the Xxx Subdivision.

10.3.    That the Defendants started early this year to gradually install a water pipes system in the Subdivision in preparation for the closure ordered by the National Water Resources Board (NWRB) of the existing centralized water pump system owned by xxx (a Co-Defendant).

10.3.1.         The Xxx Water System (MWS) has been engaged in the business of distributing water to different homes in the Subdivision since 1998 (apparently without the necessary Permit to Operate from the NWRB).

10.4.    That the Defendants were not guilty of the crime of water pilferage.

10.4.1.         They were duly authorized by the MWCI-XXX bulk water service agreement:

(a)             To distribute water in the Subdivision,

(b)            To collect the payments of the homeowners, and

(c)             To install and operate an improved water pipes system (water reticulation system) in the Subdivision,

being the legitimate incumbent Directors and Officers of the Board of Directors of XXX with whom the MWCI was officially transacting business as the legal representatives and elected Directors and Officers of XXX.

10.5.    That the MWCI did not grant unto the Plaintiff the power and authority to distribute the MWCI water supply to the residents of the Subdivision.

10.5.1. The said power and authority were granted by the MWCI only to the XXX, acting thru its legitimate incumbent Board of Directors.

10.6.    That it was illegal for the XXX Board to divert the MCWI water supply to a third business entity, i.e., the Plaintiff, without the consent of the MWCI.

10.7.    That the resolutions of the XXX Board converting the XXX Water Committee into a Cooperative (i.e., the Plaintiff), without the consent of all homeowners and for the private profit and benefit of the Plaintiff, was illegal.

10.8.    That MCWI-XXX bulk water service contract prohibited the RESALE by XXX of the MWCI water supply to any unauthorized third party-water concessionaire, i.e., the Plaintiff.

10.9.    That the xxx HLURB Decision cited by the Plaintiff in its Complaint, which purportedly recognized the Plaintiff as the authorized water operator/supplier in the Subdivision, was unjust; and that the xxx referendum was deceitfully manipulated by the Plaintiff.

10.9.1.         It was seasonably appealed by Defendant xxx (the derivative suit Complainant-Appellant therein who acted for the benefit of XXX) to the Court of  Appeals. (Cf. R.A. No. 9904, Magna Carta for Homeowners and Homeowners Associations).

10.9.2.        Defendant Xxx and XXX later withdrew the said appeal because the issues therein had become moot and academic by the subsequent ratification by 70% of the XXX members of the authority of the Defendants to control and operate the water system of the Subdivision (not the Plaintiff).

10.10.           That 70% of XXX members had rejected the right of the Plaintiff to control and operate the water system of XXX.

10.11. That in  a conciliation conference among the parties and a lawyer for MWCI held at the HLURB in xxx, it was agreed that the “water reticulation system inside the Subdivision” was the responsibility of XXX (i.e., the Defendants) and that the responsibility of MWCI was the “bulk water supply connection.”

10.12.             That the water system of the Subdivision is owned by XXX Homeowners Association. The Plaintiff does not own it.

10.13.            That the Defendants were officially and effectively managing the XXX water system  as of the early part of xxx, pursuant to its MWCI bulk water service contract, when the Plaintiff filed the instant Complaint and when the Court restrained the Defendants (i.e., incumbent XXX Board) from performing their lawful duties as Directors and Officers of XXX insofar as the protecting and operating the XXX Water System of the Subdivision was concerned.

IV.            THE ISSUES.

11.  The Plaintiff believes that the issues are:

(a)             Whether the Defendants should be restrained from proceeding with their pipes installation;

(b)            Whether the Defendants should be restrained  from opening up their installed pipe lines to supply the Xxx Subdivision residents; and

(c)             Whether the Defendants should be ordered to remove the pipes that they had installed.

12. The Defendants submit that the basic and real issue is:

Who between the Plaintiff (Cooperative) and the Defendants (incumbent elected XXX Directors and Offices) has the legal right to mange, control, and operate the Water System of the Xxx Subdivision.

V.               THE LEGAL INTEREST TO INTERVENE.

13.The Movants have a LEGAL INTEREST (a) in the matter in litigation and (b) in the success of the Defendants.

13.1.      The Defendants are the duly elected incumbent Directors and Officers of the XXX.

13.2.    They are the genuine leaders of XXX.

13.3.    The Movants respect, honor, and obey the official actions, decisions, and resolution of the Defendants as incumbent Directors and Officers of XXX.

13.4.    The actions, decisions and resolutions of the Defendants as incumbent Directors and Officers of XXX are intended to preserve and promote the general welfare of the homeowners of the Xxx Subdivision.

13.5.     As homeowners of the Xxx Subdivision, the Movants are members and voters XXX.

13.5.1.          As homeowners of the Xxx Subdivision and as members/voters of XXX, the Movants have a legal interest:

13.5.1.1.    To insure that the water service receivables of XXX from the homeowners are duly recorded and protected and are not illegally paid to the Plaintiff;

13.5.1.2.  To protect, preserve and maintain the Water System of the Xxx Subdivision that XXX owns;

13.5.1.3.  To preserve the unity of command and leadership of the incumbent Board of Directors of XXX for the good of the Community;

13.5.1.4.  To see to it that the official actions, decisions, and resolutions of the Defendants as the duly elected incumbent Directors and Offices of XXX are enforced.

(More particularly: The xxx Board Resolutions of the incumbent XXX Board of Directors and the Mass Ratification of a great majority of the homeowners REVOKING the authority of the Plaintiff to operate the Water System of the Xxx Subdivision);

13.5.1.5.   To prevent the escalation of demoralization, disunity, and confusion being caused by the Plaintiff with respect to the ownership, possession, control and operation of the Water System of the Xxx Subdivision;

13.5.1.6.   To stop the Plaintiff from further acts of harassment, abuse, threats, intimidation, coercion, disconnection of the water service, and illegal removal, destruction and taking of the water meters of the dissenting homeowners, resulting in great sufferings and inconvenience on the part of the innocent families of the dissenting homeowners.

13.6.    The Plaintiff alleges that the past and present official actions, decisions and resolutions of the Defendants as the incumbent Directors and Officers of XXX in relation to the Water System, which XXX owns, are illegal.

13.6.1.          On the basis of such an allegation the Plaintiff seeks a Judgment of Injunction and Damages against the Defendants.

13.7.     Any Judgment for Injunction and Damages adverse to the Defendants that might be promulgated by the Court after trial will adversely affect:

13.7.1.          The funds, assets, and networth of XXX;

13.7.2.         The ownership rights of XXX with respect to the administration and protection of the Water System of the Xxx Subdivision (i.e., right to enjoy, right to possess, right to administer, right to protect, etc.);

13.7.3.         The organizational, financial, and administrative status of XXX; and

13.7.4.         The common good, general welfare, aspirations, and quality of life of the Movants and the rest of the homeowners of the Xxx Subdivision and their families.

14.The Movants are so situated as to be adversely affected:

14.1.1.           By the final judgment and any and all incidental or interlocutory orders issued and to be issued by the Court in the course of the past, present and future proceedings of this case, especially if the same are favorable to the Plaintiff and adverse to the Defendants;

14.1.2.          By any judgment or order of distribution or other disposition of the property involved in this case, especially the Water System of the Xxx Subdivision which is owned by XXX and its members.

15. This motion is seasonably  filed in the sense that, as of this time, this case is still in its initial or preliminary stage.

15.1.      It has not been set yet for Pre-Trial Conference.

15.2.     It has not been referred yet to the Mediation Center.

15.3.     It has not been set yet for Judicial Dispute Resolution (JDR).

15.4.     The Plaintiff has not yet commenced the presentation of its evidence-in-chief.

16.This motion, if granted, will not unduly delay this case.

16.1.      It will not prejudice the adjudication of the rights of the Plaintiff.

17. The rights of the Movants can only be fully protected if the Court (a) would grant this motion to intervene and (b) would grant their motion of the Movants for a 15-day period to file their “Joint Answer-in-Intervention” so that they could thereafter formally participate in the trial of this case to prove the merits of their intervention.

VI.            RULE 19 (INTERVENTION).

18. In fine, Sec. 1, Rule 19 (Intervention) of the Rules of Court provides that a person:

(a)             Who has a legal interest in the matter in litigation, or

(b)            Who has a legal interest in the success of either of the parties, or

(c)             Who has an interest against both, or

(d)            Who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof

may, with leave of court, be allowed to intervene in the action.

VII.        THE 15-DAY PERIOD PRAYED FOR HEREIN.

19. It will be noted that although Rule 19 states that the Answer-in-Intervention should be attached to the Motion, nothing in said Rule:

19.1.      Expressly and absolutely prohibits the Movants from praying for an additional time of 15 days, counted from receipt of the Order of the Court granting this motion,  to file their “ Joint Answer-In-Intervention”.

19.2.    Expressly and absolutely prohibits the Court from exercising its sound judicial discretion to give to the Movants the reasonable 15-day period referred to in the foregoing paragraph to file their “ Joint Answer-In-Intervention”, in the interest of fair play and justice.

20.                      The Movants and their Counsel would need sufficient time to hold collective and individual meetings, discussions, planning sessions, and workshops (a) to review, develop and prepare their theory, defenses, evidence, witnesses, and other relevant legal presentations and (b) to conduct further legal research to prepare an intelligent “Joint Answer-In-Intervention”.

21. This Motion for a 15-day period to file the Movant’s “Joint Answer-in-Intervention” is not intended to delay this case but is being made solely for the foregoing reasons.

21.1.      Please note that this case is still in its preliminary or initial stage and will not be prejudiced by the 15-day period prayed for in this Motion.

VIII.     RELIEF.

WHEREFORE, premises considered and in the interest of justice, the Movants respectfully pray that, after notice and hearing, an ORDER be issued:

1.      Granting the Movants the right to INTERVENE as Defendants-in-Intervention; and

2.    Giving the Movants a period of 15 days to file their “Joint Answer-in-Intervention”, counted from receipt of the Order granting this Motion.

FURTHER, the Movants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.

xxx City, xxx, 2015.