Thursday, October 25, 2018

Basic remedial law doctrines -

See -

"x x x.

[1] AUTER ACTION PENDANT: It refers to the situation where two actions are pending between the same parties for the same cause of action, so that one of them becomes unnecessary and vexatious. It is based on the policy against multiplicity of suits.

[2] BERRY RULE: Filing of motion for new trial based on newly discovered evidence which cannot be produced in court despite exercise of due diligence, and if considered would probably alter the outcome of the case.

[3] BUBBLE BURST THEORY: The rule on presumption of law shall not apply in case there is evidence to the contrary.

[4] CHAIN OF CUSTODY: Is "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." (see also: People vs. Alivio, G.R. No. 177771, May 30, 2011).

[5] CONTINUING THREAT: In order that writ of amparo can be issued, the threat on the right to life liberty or security must be actual and continuing and not merely imaginary, thereby depriving the petitioner of his said right from the inception up to the termination of the case.

[6] FALSA DEMONSTRATIO NON NOCET: It is a rule which states that where there are two descriptions in a deed, the one as it were, super added to the other, and one description being complete and sufficient in itself, and the other which is subordinate and super added is incorrect, the incorrect description or feature or circumstance of the description is rejected as a surplusage, and the complete and correct description is allowed to stand alone. (Please see: Myers vs. Ladd, 26 Ill, 515, 417)

[7] FRESH PERIOD: It is a procedural law as it prescribes a fresh period of 15 days within which an appeal may be made in the event that the motion for reconsideration is denied by the lower court. Following the rule on retroactivity of procedural laws, the “fresh period rule” should be applied to pending actions, such as the present case. (Priscilla Alma Jose vs. Ramon Javellana, et al., G.R. No. 158239, January 25, 2012)

[8] FRUIT OF THE POISONOUS TREE: The warrant issued by the judge did not comply with the requisites of the law, and therefore, void, or when the search made without warrant is unjustifiable, whether it is found or discovered afterwards, cannot be used as evidence against the suspect. The items or articles obtained are the “fruits of a poisoned tree.”(People vs. Burgos, 144 SCRA 1; People vs. Montilla, 285 SCRA 703; Manalili vs. CA, 280 SCRA 400)

[9] HYPOTHETICAL ADMISSION or PRESUMPTION OF TRUTH: When a motion to dismiss is filed, the material allegations of the complaint are deemed to be hypothetically admitted. This hypothetical admission, extends not only from the relevant and material facts well pleaded in the complaint, but also to inferences that may be fairly deduced from them. (The Municipality of Hagonoy, Bulcan, et al. vs. Hon. Simeon Dumdum, Jr., G.R. No. 168289, March 22, 2010)

[10] IMMUTABILITY OF JUDGMENT: Once the judgment becomes final and executory, it can no longer be amended, set aside, or disturbed

[11] INDEPENDENT RELEVANT STATEMENT: Regardless of the truth or falsity of a statement, when what is relevant is the fact that such statement has been made, the hearsay rule does not apply and the statement may be shown. (Jose Espinelia.k.aDaniloEspineli vs. People of the Philippines, G.R. No. 179535, June 9, 2014)

[12] INTERLOCKING CONFESSION: These are extrajudicial confessions which were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latter’s actual participation in the commission of the crime.

[13] JUDICIAL COURTESY: “[d]ue respect for the Supreme Court and practical and ethical considerations should have prompted the appellate court wait for the final determination of the petition [for certiorari] before taking cognizance of the case and trying to render moot exactly what was before this [C]ourt.” The principle of judicial courtesy applies only “if there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court.”(Juan Trajano aka Johnny vs. Uniwide Sales Warehouse ClubG.R. 190253, June 11, 2014)

[14] LAW OF THE CASE: It has been defined as the opinion delivered on a former appeal, and means, more specifically, that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.

[15] MATERIAL DATES: Under the material dates rule, a petition must alleged three (3) material dates which is necessary which are as follows: 1) The date when the judgment or final order or resolution was received; 2) The date when the motion for reconsideration or new trial was filed; and 3) The date when the notice of the denial thereof was received. (Great Southern Maritime Services Corporation vs. Acuna, 452 SCRA 422, February 28, 2005)

[16] NON-PROSEQUITUR: Once a case is dismissed for failure to prosecute, the dismissal has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal.

[17] NON-SUITED: Failure of the plaintiff to appear on the scheduled pre-trial conference would result to the dismissal of the case with prejudice, unless otherwise ordered by the court to be without prejudice.

[18] PARTY AUTONOMY: Parties have the freedom to expressly stipulate or agree by virtue of written agreement on how their disputes will be settled by submitting their differences to an arbitrator before an action may be commenced in court.

[19] PRESUMED IDENTITY APPROACH: Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours. (ATCI Overseas Corporation, Amalia G. Ikdal And Ministry Of Public Health-Kuwait Vs. Ma. JosefaEchin, G.R. No. 178551, October 11, 2010)

[20] PRIMARY JURISDICTION: When an administrative body is clothed with original and exclusive jurisdiction, courts are utterly without power and authority to exercise concurrently such jurisdiction. Accordingly, all the proceedings of the court in violation of that doctrine and all orders and decisions reached are null and void. (Manolito Agra, et al., vs. Commission on Audit, G.R. No. 167807, December 6, 2011)

[21] RECOUPMENT: A compulsory counterclaim arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim which does not require the presence of a third person over whom the court cannot acquired jurisdiction;

[22] RELAXED ADMISSIBILITY OF EVIDENCE : In the proper resolution of the case, the court has the discretion to admit a rather inadmissible evidence provided it has a relation to other evidence already presented which is relevant to the fact in issue in the case.

[23] RES JUDICATA IN PRISON GREY: Accused cannot be twice put in jeopardy of an offense, acquittal or conviction in either one will bar the prosecution for another offense, or his was terminated without the express consent of the accused.

[24] SET-OFF: A permissive counterclaim does not arise out of and is not connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim which required the presence of a third person for its adjudication;

[25] SEXUAL ABUSE SHIELD: The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and(2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception.— Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible.

[26] STATUTE OF NON-CLAIMS: Immediately after granting letters testamentary or administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of court which shall state the time of the filing of the claim against estate, which shall not be more than twelve (12) months but less than six (6) months after the date of first publication of the notice, but before distribution is entered, upon application of an unpaid creditor who failed to file his claim, the court on cause shown may allow the claim to be filed within the time not exceeding one (10 month.

[27] STRONG ARM OF EQUITY: At times referred to as the “Strong Arm of Equity,” [the Court has] consistently ruled that there is no power the exercise of which is more delicate and which calls for greater circumspection than the issuance of an injunction. It should only be extended in cases of great injury where courts of law cannot afford an adequate or commensurate remedy in damages; “in cases of extreme urgency; where the right is very clear; where considerations of relative inconvenience bear strongly in complainant’s favor; where there is a willful and unlawful invasion of plaintiff’s right against his protest and remonstrance, the injury being a continuing one, and where the effect of the mandatory injunction is rather to re-establish and maintain a pre-existing continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new relation.”(Thunder Security and Investigation Agency vs. National Food Authority, supra)

[28] TRANSCENDENTAL IMPORTANCE: Suspension of the rules of procedure in case the subject matter of the action is of great importance/involving national interest;

[29] TWO-DISMISSAL: When the notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim.

[30] VIATORY RIGHT OF WITNESS: If the witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending, then he cannot be compelled to attend the trial. The right is available only in CIVIL cases.

x x x."

IPU insists non-interference with Philippine justice system

Tuesday, October 23, 2018

The Philippines has the dubious recognition of having one the longest pretrial detentions in the whole world.

See -

"x x x.

Philippines' dark secret: Lengthy pretrial detention

If the lengthy pretrial process in the Philippines cannot be addressed, rule of law cannot be established

By Raymund Narag
Published 11:30 AM, October 19, 2018
Updated 11:30 AM, October 19, 2018 

The Philippines has the dubious recognition of having one the longest pretrial detentions in the whole world.

Inmates stay in jail for an average of 528 days before they are convicted or acquitted. In some cases, inmates had stayed in detention for 10 years only to be acquitted. In fact, it takes longer for an inmate to stay in "temporary" detention centers and jails than in prisons.
For example, a person convicted for 12 years usually had stayed in jail for 8 years already while undergoing trial and will serve the remaining 4 years in prison.
Thus, the key decision point is not whether an accused is convicted or not, but rather, whether one is bailed out or not. Being denied bail, in the Philippines, is tantamount to serving a sentence.

This lengthy pretrial detention has numerous negative consequences on individuals and the correctional and legal system.

Appeal of vigilante justice

The accused are punished before they are convicted, violating their right to presumption of innocence. Lengthy pretrial detention also deprives the accused of economic opportunities and cause loss of jobs, even if they are acquitted.

It also translates to disruption in families, as most of the accused are breadwinners. Additionally, lengthy detention increases jail overcrowding and additional costs to the government.

On average, the Philippine government spends at least P74,000 per inmate per year, which is almost twice the budget for a university scholar. Finally, lengthy pretrial detention increases the cynicism to the legal system.
Filipinos think that the purposeful delay, either done by the defense or the prosecution, is a manifest attempt to thwart the goals of justice. This benefits especially the rich and powerful accused as they can bend the wheels of justice toward their ends. Eventually, Filipinos lose trust in the justice system and they take matters in their own hands.

This leads to the popular appeal of vigilante justice. This is what makes the killing of drug addicts and corrupt politicians attractive to the Filipino masses. It resonates squarely with the message of President Duterte of restoring “rule of law” by any means necessary.

Lengthy pretrial detention is the little dark secret plaguing the Philippine legal system.

Judges, prosecutors and public and private lawyers know about it but no one is doing about it. For one, purposeful delay benefits the defense lawyers – they can still make a living through representational fees even if hearings are continually postponed. Judges are not bothered even if accused in their court sala had languished in jail for 10 years and counting.

The accused are powerless, anyway, and indeed, it is not their fault when prosecution and defense lawyers seek for postponements. The prosecutors are just as happy that the accused are languishing in jail, as long as they are not out in the streets and committing crimes. Thus, detained accused appears in court once every 3 months, only to be postponed due to the absence of one of the court actors, and that is okay.

The court actors will still get their paychecks, anyway. Indeed, for every 10 hearings, only two will push through, wasting scarce government resources. The court actors’ lack of coordination and culture of “professional courtesy” lead to these lengthy pretrial detention, and for them it is okay. They can still get promoted as long as they are close to the appointing authorities, anyway.

Challenge of innovation

There are few court actors, especially judges, who are trying to innovate and make their court systems efficient.

They implement more strict rules on postponements, computerize their court management systems, and develop a mechanism to coordinate calendaring of hearings. The Bureau of Jail Management and Penology (BJMP) can also help by regularly providing the courts with the list of overstaying inmates. The BJMP can actually determine who are the Speedy Courts and the Challenged Courts. The Supreme Court, through the Office of the Court Administrator, can also monitor the average length of stay of inmates in jail for each judge and use this as a basis for promotions and distribution of performance based bonuses.

If the lengthy pretrial process in the Philippines cannot be addressed, rule of law cannot be established. Thus, the President should embark on strengthening the judicial system by providing more judges, prosecutors and lawyers to lessen their caseload.

There should be court management trainings for judges so they can run their hearings efficiently. Furthermore, there should be ethical trainings for all lawyers, so that they do away with the practice of purposeful delay to maintain a steady income.

The speedy resolution of cases will restore trust to the judicial system. This will lead to Filipinos following the rule of law. This will entice them to stop using drugs as they will be swiftly punished using legitimate means if they do so.

This is more sustainable solution than killing drug addicts and corrupt politicians without due process of law. –

The author is assistant professor at the Department of Criminology and Criminal Justice, Southern Illinois University Carbondale.
x x x."

Friday, October 19, 2018

Virginity test: "The agencies identified more than 20 countries where “virginity testing” has been documented, including western countries like the UK, Belgium and Canada."

See -
"x x x.

UN agencies call for ban on ‘virginity tests’
OCTOBER 18, 2018 03:23:36 PM
By Tim Zubizarreta

The World Health Organization, the UN Office of the High Commissioner for Human Rights, and UN Women issued a joint statement Wednesday calling on governments, health professionals and communities to take steps to end the practice of “virginity testing.”

After a comprehensive systematic review of “virginity testing,” the practice of examining women to determine whether vaginal intercourse has occurred, the UN has found that “the examination has no scientific merit or clinical indication … there is no known examination which can prove a history of vaginal intercourse.” The agencies then provided background on the history of “virginity testing,” citing the use of force in administering “virginity tests,” the tendency of such tests to be used to reinforce gender discrimination, and the long-term trauma that the tests have on women. On review of the history and effects of “virginity testing” the agencies cited six human rights that are being violated:

-The right to be protected from discrimination based on sex.
-The right to life.
-The right to privacy and physical integrity.
-The right to be free from torture or cruel, inhuman or degrading treatment or punishment.
-The right to the highest attainable standard of health.
-The right of the child.

The tests themselves violate several rights by causing personal invasions and leading to adverse health affects, but the UN found that the after-affects are just as important, citing long term physical and psychological trauma that has even led to suicide in some cases. Finally, the agencies cited the rights of children and condemned the practice being carried out on children who have a right to be protected by society.

Ultimately, in finding no reliable science or medical necessity in “virginity testing,” the agencies called on health professionals, governments, and communities to take action and provided suggested strategies for each. For healthcare providers, the statement called for a dissemination of the new science around “virginity tests” while also citing the physician’s responsibility to “do no harm” and advocating for the counseling of families requesting “virginity tests.” The statement urged governments to take responsibility to ban “virginity testing” through legislation and to enforce such bans even through criminal prosecution if necessary. Finally, the UN called for local community advocacy to change the societal norms that have kept “virginity testing” in place through discussions, community statements, and calls from community leaders for change.

The agencies identified more than 20 countries where “virginity testing” has been documented, including western countries like the UK, Belgium and Canada.
x x x."

Wednesday, October 17, 2018

Key provisions under each article of the draft federal charter authored by Speaker Gloria Macapagal Arroyo and 21 other lawmakers

See -

"x x x.

Highlights of the House's draft federal constitution

Here are the key provisions under each article of the draft federal charter authored by Speaker Gloria Macapagal Arroyo and 21 other lawmakers

By Mara Cepeda
Published 8:25 AM, October 15, 2018
Updated 8:25 AM, October 15, 2018

MANILA, Philippines – Charter change is alive at the House of Representatives.

Resolution of Both Houses (RBH) No. 15, penned by no less than Speaker Gloria Macapagal Arroyo and 21 other legislators, is proposing the draft constitution that would shift the Philippines to a federal system of government. (READ: No set number of federal states under Arroyo's draft constitution)

This draft federal charter has been drawing flak for its provisions lifting term limits of legislators and removing Vice President Leni Robredo in the line of succession during the transition to federalism.

Following criticism, Arroyo told Cebu City 1st District Representative Raul del Mar to make a motion at the plenary to recommit RBH 15 to the House committee on constitutional amendments, which is now expected to put the Vice President back in the line of succession.

Constitutional amendments panel chairperson Vicente Veloso said the House is targeting to pass RBH 15 on 3rd and final reading by February or March 2019.

But it will be an uphill battle because senators already said the draft federal charter would be "dead on arrival" at the Senate.

Here are highlights of the House's draft federal constitution as compared with the 1987 Constitution:

No changes

Article I – National Territory
Adds a new phrase that says the Philippines has sovereignty over territorial islands, waters, and airspace "recognized under our domestic laws, international laws and conventions, and judgments of competent international courts and tribunals."

Article II – Declaration of Principles and State Policies
Removes the 1987 Constitution's anti-political dynasty provision
Adds a new line saying the State shall recognize "regional autonomy towards federalism within the framework of national unity and the Constitution"
Adds a phrase saying the State "condemns any act of terrorism"
The "Government of the Philippines," not the Armed Forces of the Philippines (AFP), is the protector of the people and the State. But the AFP still has the goal of securing the sovereignty of the State and the integrity of the national territory.
Relations between church and State shall be inviolable and "shall be governed by benevolent neutrality"
Adds a new line for the State to give the "highest priority" to the enactment of measures that "protect and enhance" the right of every person to human dignity; reduce social, economic, and political inequalities; and remove cultural inequities by equitably distributing wealth and diffusing political power for the common good.
Adds a new line that says the State shall now protect and promote the right of all citizens to "quality education at all levels" and to take the necessary steps to make such education accessible to all
Adds a new line saying the State shall "foster the preservation, enrichment, and evolution of a Filipino national culture"
Adds a new line for the State to prioritize research and development, invention, innovation, and their utilizaiton
Workers will have the right to self-organization, collective bargaining and negotiation, peaceful concerted activities, equitable treatment and freedom from discrimination on matters of employment tenure, working conditions, and wage levels. The State will also regulate worker-employer relations.
Removes the State's policy to "promote comprehensive rural development and agrarian reform" in the present Constitution. Instead, the State shall promote "rural development, higher agricultural productivity, and equitable land ownership arrangements."
Removes the State's policy to encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation
Removes the State's policy to "ensure the autonomy of local governments"

Article III – Bill of Rights
No major changes, just minor changes in style (like from "he" to "their")

Article IV – Bill of Duties
This entirely new section makes it the duty of every citizen to "be loyal to the Republic of the Philippines, honor the Philippine flag, defend the State, contribute to its development and welfare, uphold the constitution and obey the laws, pay taxes, and cooperate with the duly constituted authorities in the attainment and maintenance of the rule of law and of a peaceful, just, humane, and orderly society."
The clause recognizing the value of the dignity of every human person and the guarantee on the full respect for human rights – which is in the Declaration of Principles and State Policies in the current Constitution – is under this new section.

Article V – Citizenship
No changes

Article VI – Suffrage
Exempts "qualified Filipinos abroad under the system for absentee voting" from the requirement to have resided in the Philippines for at least one year, and in the place where they propose to vote for at least 6 months immediately preceding the election

Article VII – Political Parties
An entirely new section that brings back the two-party system in the country
The first two "dominant" parties which would garner the most number of electoral seats during the first national elections under federalism would be the official parties.

Article VIII – The Legislative Department
Removes the provisions imposing a two-term limit for senators and a 3-term limit for district and party-list representatives
Instead of just being able to read and write, senators and members of the House of Representatives will be required to have a college degree. But this requirement will not apply to those already elected before ratification of the new constitution.
Each term for lawmakers will be 4 years long.
Increases the number of House members to not more than 300 elected from legislative districts. Party-list representatives will still constitute 20% of the total number of representatives, including those under the party list.
Reduces the number of Supreme Court (SC) justices in the Electoral Tribunal to just 3, while the remaining 6 seats will be allotted for members of the Senate or the House. The most senior SC justice in the Electoral Tribunal is still chairperson.
The Speaker, not the Senate President, will be the chairperson of the Commission on Appointments.
Gives Congress the power to increase appropriations for the legislative branch and the judicial department more than the allocations recommended by the President
Adds a new line requiring the creation of a bicameral conference committee to reconcile conflicting provisions of the House and Senate versions of a bill passed on 3rd and final reading
A new line allows the removal of lawmakers from office "through recall as may be provided by law"

Article IX – Executive Department
The president and the vice president must be from the same party and shall be elected as a team. A vote for the presidential candidate will also be counted as a vote for his or her running mate.
The president and the vice president will each serve a term of 4 years and will be eligible for one reelection.
Increases the age qualification for presidential and vice presidential candidates to at least 45 years old on the day of the elections. They are also required to have earned college degrees.
Like in the present Constitution, the Vice President is next in line should the President die, have a permanent disability, be removed from office, or resign.
Specifies that the President has the power to grant amnesty with the concurrence of a majority of all the members of Congress, which will be voting separately
Adds a new line in Section 21 saying that no foreign military bases, troops, and facilities may be allowed in the Philippines except under a treaty concurred in by the Senate. If Congress requires it, the treaty will also have to be ratified by a majority of the votes cast by the people in a national referendum.

Article X – The Judiciary
Instead of a Judicial and Bar Council, a Judicial Appointments and Disciplinary Council will be created to recommend appointees to the judiciary. Ex-officio members include the SC chief justice, SC court administrator, representative from the Senate minority, representative from the House minority, Civil Service Commission (CSC) chairperson, and Department of Justice (DOJ) secretary. The regular members are a representative from the Integrated Bar of the Philippines, a law professor designated by the Philippine Association of Law Schools, and a retired member of the SC to be designated by the Association of the Retired Justices of the Supreme Court.

Article XI – Constitutional Commissions
Includes the Commission on Human Rights (CHR) among the list of independent constitutional commissions. The CHR will have the power to investigate all forms of human rights violations involving civil and political rights.
Removes the provision establishing a free and open party system in the 1987 Constitution
Adds a new line saying the power of the Commission on Elections (Comelec) to investigate and cause the prosecution of election-related crimes shall be vested in the DOJ

Article XII – Local Governments and Federal States
The territorial and political subdivisions of the Philippines are the provinces, cities, municipalities, and barangays. But new provisions give these political units the option to become a federal state.
Does not impose a specific number of federal states to be established
Sets term of office for elective local officials to 4 years, except for barangay officials, "which shall be determined by law"
A federal state may be created upon a petition addressed to Congress by contiguous, compact, and adjacent provinces, highly urbanized and component cities, and cities and municipalities in metropolitan areas through a "resolution of their respective bodies." The resolution must be approved by a majority of the votes cast in a plebiscite to be held in the political units affected.
In "exceptional cases," a province may be established as a federal state based on area; population; necessity; geographical distance; environmental, economic, and fiscal viability; and "other special attributes."
A federal state will be led by a unicameral territorial assembly, whose members shall be elective and representative of the constituent political units.
Gives Congress the task of passing an organic act that will define the basic structure of government for the federal states
Federal states must support the national government in "maintaining the integrity and independence of the Republic and shall comply with and enforce this constitution and all national laws."
When a law of a federal state or a local government is inconsistent with the national law, the latter will prevail.
A federal state will have jurisdiction over the following:
Administrative organization, planning, budget, and management
Creation of sources of revenues and finance
Agriculture and fisheries
Natural resources, energy, environment, indigenous-appropriate technologies and inventions
Trade, industry, and tourism
Labor and employment
Public works and transportation, except railways, shipping, and aviation
Health and social welfare
Education and the development of language, culture, arts
Ancestral domain and natural resources
Housing, land use and development

Article XIII – Accountability of Public Officers
Adds a new line that will include in the list of public officers the directors and trustees who represent the interests of the State in government-owned or controlled corporations with original charters as well as persons appointed to official positions in these entities
Removes the phrase "other high crimes or betrayal of public trust" among the reasons to impeach the president, vice president, SC justices, members of constitutional commissions, and the Ombudsman
Removes the requirement for the Ombudsman to have at least 10 years or more serving as a judge or engaged in the practice of law in the Philippines. Instead, "the Ombudsman must have at least been a judge or engaged in the practice of law in the Philippines."
Removes the line saying public officers and employees owe the State and the constitution "allegiance at all times"

Article XIV – National Economy and Patrimony
Removes provision saying the State shall "promote industrialization and full employment based on sound agricultural development and agrarian reform"
Instead of Congress being tasked to "create an agency to promote the viability and growth of cooperatives," the legislative branch will only be tasked "to strengthen the viability and growth of cooperatives"
Congress will be tasked to periodically review the social and economic viability of government owned or controlled corporations "as often as may be deemed necessary," but at least once every 5 years.
Adds a new line directing the State to enhance the economic efficiency and promote free competition in trade, industry, and commercial activities. No anti-competitive agreement or abuse of dominant position allowed.
Specifies that the Bangko Sentral ng Pilipinas will be the central monetary authority unless "Congress otherwise provides"

Article XV – General Provisions
Imposes a fixed term "as prescribed by law" for the tour of duty of the chief of staff, vice chief of staff, deputy chief of staff, and chiefs of major services of the AFP. The president is allowed to extend this tour of duty by just one year in times of war declared by Congress or "in the interest of defense and national emergency as determined" by the president.
Removes the line establishing one national police force
Removes the line saying the ownership and management of mass media "shall be limited to citizens of the Philippines or to corporations, cooperatives or associations, wholly-owned and managed by such citizens"
Removes the line limiting the engagement in the advertising industry just for Filipino citizens or corporations or associations with at least 70% of the capital owned by Filipinos. Also removes the line limiting the participation of foreign investors in the governing body of entities based on their proportionate share in the capital.
Adds a new provision exempting from the payment of taxes and duties all revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes
A new line also directs the State to assign the "highest budget priority" to education

Article XVI – Amendments or Revisions
No changes

Article XVII – Transitory Provisions
Puts the Senate president – not the vice president – as next in line should the president be unable to perform his functions
All branches of the government will function in a transitory character until all their successors are elected or appointed and are duly qualified.
The term of the president and the vice president will end on June 30, 2022 and will not be extended.
Bars the incumbent President from running for the same position during the 2022 elections
Sets the first national and local elections for the new president, vice president, senators, representatives, and local officials on the second Monday of May 2022. 

They will assume office at 12 pm on June 30, 2022.
Upon ratification of the new constitution, the incumbent President and Vice President will continue exercising their powers and functions until the election of their successors.
Seats allocated for party-list representatives shall be filled by election in accordance with Republic Act No. 7941 or the Party-list System for the May 2022 National Elections.
All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances "not inconsistent with this Constitution" shall remain operative until amended, repealed, or revoked.
All existing treaties or international agreements which have not been ratified will not be renewed or extended without concurrence of at least 2/3 of all senators
All courts existing when the new constitution is ratified will continue exercising their jurisdiction "until otherwise provided by law."
Incumbent members of the judiciary will be in office until they reach the age of 70, become incapacitated to perform their duties, or are removed for cause or by the abolition of their office.
Within 6 months after the new constitution's ratification, the SC, Court of Appeals, Court of Tax Appeals, and the Sandiganbayan must adopt a systematic plan to expedite the decision or resolution of pending cases.
The legal effect of the lapse of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts before the ratification of the new constitution will be determined by the SC "as soon as practicable."
Incumbent members of the CSC, Comelec, and the Commission on Audit will stay in office for one year after the ratification of the new constitution, unless they are "sooner removed for cause," become incapacitated to perform their duties, or have been appointed to a new term. No member shall serve longer than 7 years, including the service before the ratification of the new constitution.
Gives separation pay and retirement and other benefits to career civil service employees who are separated from the service "not for cause" but as a result of the reorganization under the new constitution
The constitution will "take effect immediately" upon its ratification by a majority of the votes cast in a plebiscite and will supersede all previous constitutions.



x x x."

Rule on Precautionary Hold Departure Order

See -

"x x x.

The Supreme Court issues Rule on Precautionary Hold Departure Order
Quisumbing Torres

Philippines October 15 2018

The Supreme Court has recently issued A.M. No. 18-07-05-SC or the "Rule on Precautionary Hold Departure Order" ("PHDO Rules").

What the PHDO Rules say

A PHDO will prevent a person suspected of a crime from departing the country. Upon motion by the complainant, during the pendency of a preliminary investigation for a criminal complaint, a prosecutor may apply for a PHDO with the proper Regional Trial Court ("RTC"), when (a) there is high probability that the subject will depart from the Philippines to evade arrest and prosecution; (b) there is a preliminary finding by the RTC Judge of probable cause; and (c) the crime is punishable with imprisonment of at least 6 years and 1 day. The PHDO may be issued without notice and hearing (ex-parte).

The respondent may file a verified motion for temporary lifting of the PHDO before the RTC which issued the PHDO upon the following grounds: (a) there is doubt that probable cause exists based on the complaint-affidavit and the evidence that he will present; and (b) he is not a flight risk. The respondent may also ask the issuing court to allow him to leave the country upon his posting of a bond.

Actions to consider / Conclusion

Under the previous rules, a criminal case should first be filed in court before a Hold Departure Order may be issued (to prevent an accused from leaving the country). Under the new PHDO Rule, a respondent in a preliminary investigation may already be prevented from leaving the country pursuant to a PHDO.

Monday, October 15, 2018

Robert Skidelsky - Interpreting the Great Depression: Hayek versus Keynes

Ken Rogoff - Debts, Deficits and Global Financial Stability

Branko Milanovic - Global Income Inequality

Jeremy Siegel - Efficient Market Theory and the Recent Financial Crisis

Joseph Stiglitz - An Agenda for Reforming Economic Theory

Priorities and Best Practices in the Anti-Trafficking Movement

The Future of International Criminal Justice with Judge Fausto Pocar

Right to Privacy - Salil Shetty AI

Legacy of the International Criminal Tribunal for Rwanda

Tom Porteous - Methods and Ethics of Human Rights Research

Islam and Human Rights

Accountability for the Most Serious Crimes Committed in Syria

Human Rights and Militarization at the U.S-Mexico Border

Democracy and the Rule of Law

Towards an Evidence Based Approach to Combating Human Trafficking

Pol Pot | Great Crimes & Trials

The Assassination of Gandhi

The Assassination of John F. Kennedy

The Assassination of Martin Luther King

The Assassination of Robert Kennedy

Monday, October 8, 2018

Writ Contra Homo Sacer proposed by lawyers to SC.

See -

"x x x.

SC urged to craft new protective writ against drug killings
By: Yuji Vincent Gonzales - Reporter / @YGonzalesINQ / 06:23 PM April 26, 2017

"A nongovernment organization of lawyers on Wednesday urged the Supreme Court to issue a new protective writ that will look into the spate of drug-related killings amid the Duterte administration’s war on drugs.

In its 14-page letter petition, the Center for International Law asked the high court to create a Writ “Contra Homo Sacer,” which it said will allow a new mandatory inquest procedure to address the increasing extrajudicial killings from police or vigilante operations. The lawyers said the new writ will require the police to produce a full documentation of any operation, “from planning to its implementation and its aftermath.”

“This includes the mandatory submission of detailed reports, forensic evidence, autopsy reports and the like, that comply with international standards. Many of these documentary requirements, while already provided under existing rules of the Department of Justice and the Philippine National Police (PNP), are often ignored by authorities,” the Center said in a statement.
“Thus, to ensure full compliance by both public prosecutors and law enforcement agencies, the Center asked the High Court to incorporate them into an amendment to the Rules of Criminal Procedure or into a new class of protective writs similar to what it had earlier issued, namely the Writ of Amparo and the Writ of Habeas Data,” it added.

The lawyers said their petition aimed to prevent “drug suspects or any other criminal suspects from being treated as homo sacer and from being subject to banishment to the realm of uncertain fate.” Homo sacer, they said, was legal concept from ancient Roman law recently recovered by Italian philosopher Giorgio Agamben, which refers to a class of persons treated as outlaws and without any rights.

“We write to implore the Supreme Court to promulgate additional rules on criminal procedure to help prevent the disturbing emergence of a class of people who – harking back to ancient Roman times – are no more than homo sacer, or beings reduced to mere biological existence, denied of all rights, marked for execution anytime and anywhere,” the group said.

“The obligation of police officers to turn over records, documents, and all evidence in connection with the commission of a crime as they themselves allege, must be required all the more if the suspect ends up dead, either at the hands of police officers or unknown assailants,” it added.
The lawyers said the high tribunal may adopt international standards laid down by the UN Minnesota Protocol on the Effective Prevention and Investigation of Extra-Legal Killings, Arbitrary and Summary Executions, Enforced Disappearances and Torture in crafting the new writ."

x x x."

Read more:

Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

Dangerous amendments proposed by Philippine security officials to the current Human Security Act of 2007 or Republic Act 9372.

See -
"x x x.

Philippines plans law to give Duterte Marcos-like powers

New legislation that would grant the Philippine president powers similar to martial law comes amid claims by critics that he made up the alleged ‘Red October’ coup plot to justify a crackdown on the opposition

Published: Wednesday, 03 October, 2018, 7:32pm
Updated: Wednesday, 03 October, 2018, 7:32pm

By Raissa Robles 

The Congress of the Philippines is rushing approval of a new law that could give President Rodrigo Duterte wide-ranging powers similar to those of his idol, the late dictator Ferdinand Marcos.

The death penalty will be restored. Torture, allowed. Filipinos could be jailed for their posts on Facebook, Twitter and other social media. Suspected terrorists and even “unwilling witnesses” could be arrested without warrants and detained for 30 days without charge during an “actual or imminent terrorist attack”.

These are just some of the amendments proposed by Philippine security officials to the current Human Security Act of 2007 or Republic Act 9372.

The proposals come amid claims by the Duterte administration that the armed wing of the Communist Party of the Philippines, the New People’s Army, together with opposition political parties and civil society groups, has been plotting a coup called “Red October” to overthrow the president.

However, the claims have been rubbished by critics, who say the plot has been made up to justify a crackdown on the opposition and pave the way for martial law.
Philippines’ hunt for Red October communist plot: a Duterte hoax?

In a Senate hearing on Monday, defence secretary Delfin Lorenzana pushed for approval of the new law, saying: “We won’t need to use martial law if we have something else that would give our security agencies a bit more teeth.”

Armed Forces chief of staff General Carlito Galvez, Jnr. said there was a need for longer detention periods, pointing to the recent twin bombings in Isulan, Sultan Kudarat in Mindanao which took place within five days of each other, in August and September.

“We captured the bomber. But because of a very permissive law [requiring their release in 72 hours], the bombers were able to be released from detention,” General Galvez said. Both incidents have been blamed on Islamist terrorists.

At present, Galvez said, “we cannot detain” under mere suspicion alone. It usually took up to two weeks to extract information from a “hard core terrorist”, he said.

Both Galvez and presidential national security adviser Hermogenes Esperon expressed envy for the “more restrictive” laws of other Asian countries. Australia can detain suspects “for as long as seven days or more [whereas] we can only detain suspects for three days”, former military chief Esperon said.

Human rights lawyer Antonio Gabriel La Viña, however, warned the proposals would legalise “state terrorism”. He called the amendments “repugnant to the sacred constitutional doctrine of due process of law which protects life, liberty and property of any person and the right of an accused to be heard and present evidence in his or her behalf”.

Law professor La Viña also sided with left-wing congressman Ariel Casilao, saying that the law was “another step toward a dictatorship”.

Former congressman Teddy Casiño of the Bayan Muna party list group called the proposals “very dangerous” because they “expand the definition of terrorism to virtually any crime under the sun”.

The present law specifies only a dozen high crimes including piracy and mutiny, rebellion or insurrection, coup d’etat, murder, kidnapping and serious illegal detention, arson, and use of nuclear or toxic substances.
‘My only sin is the extrajudicial killings,’ says Philippine President Duterte

However, these crimes can be considered terrorist acts only when they sow and create “a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand”. Security officials have proposed to delete this condition from the law.

In addition, they have inserted the violation of Republic Act 10175 or the Cybercrime Prevention Act of 2012 as a terrorist act. Since RA 10175 had specified that it covers the entire Philippine Penal Code, the insertion would affect a wide array of laws.
Because of this, Casiño warned that “the amendments make terrorism so broad and vague a crime it can be used against anyone – leftist organisations, tree-huggers, anti-corruption watchdogs, political enemies of those in power, even drug suspects and petty criminals”.

Other notable deletions are the sections banning torture during interrogation. Section 23 of the current RA 9372 required law enforcement workers to keep a logbook on each detainee. Section 24 specified that “no torture or coercion in investigation and interrogation” is allowed. Any evidence extracted in this manner is inadmissible.

Both sections 23 and 24 have been deleted in a draft proposed by security officials.

However, Senator Panfilo Lacson, who chairs the Senate Committee on Public Order and Dangerous Drugs, said he had tweaked the Senate version of the bill by restoring section 24 against torture, but not section 23.
Duterte: If I step down, bring back Marcos to run Philippines

Lacson has also proposed to insert a section that specifies that “legitimate exercises of the freedom of expression and to peaceably assemble … protest, dissent” would not be considered terrorist acts provided “a person does not have the intention to use or urge the use of force or violence or cause harm to others”.

Coincidentally, two of the main sponsors of the bill – Senator Lacson and House Congressman Amado Espino, Jnr. – were once both officers in the Philippine Constabulary under Marcos. The constabulary was found to have engaged in massive human rights violations of detainees, according to one of its former officials, General Ramon Montaño.

Human rights groups have estimated that 3,700 people were murdered, 40,000 tortured and up to 100,000 detained without charge during the Marcos dictatorship.
x x x."

Chain of custody of evidence in drug cases; Section 21 (1) of Republic Act 9165, "Comprehensive Dangerous Drugs Act of 2002".

See -
"x x x.

High court sets purge of weak drug cases
September 30, 2018 at 10:30 pm 

To weed out courts’ docket of weak drug cases, the Supreme Court has adopted a mandatory policy for apprehending officers, investigating prosecutors, and courts in the custody and disposition of confiscated, seized or surrendered dangerous drugs in drug-related cases.

In an en banc 18-page decision, the high court through Associate Justice Diosdado Peralta laid down fundamental rules governing the arrest and proper handling of evidence in drug-related cases in order to ensure conviction and not dismissal on technicality.

The SC stressed that “ to weed out early on from the courts’ already congested docket any orchestrated or poorly built up drug-related cases,” the following should be enforced as a mandatory policy in connection with arrests and seizures related to illegal drugs

1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of Republic Act 9165 or Comprehensive Dangerous Drugs Act of 2002, and its Implementing Rules and Regulations (IRR);

2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items;

3. If there is no justification or explanation expressly declared in the sworn statements/affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause; and

4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court.

The high tribunal emphasized the importance of the procedure laid down in Section 21(1) of RA 9165, which mandates the conduct of a physical inventory of the seized items and taking of photos of the same by the apprehending team “in the presence of the accused or the person/s from whom such items were confiscated and/or seized…with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof.”

The SC pointed out that the said provision also directs that the physical inventory and photograph shall be conducted at the place where the search warrant is served, or at the nearest police station or at the nearest office of the apprehending officer, whichever is practicable, in case of warrantless seizures.

The provision likewise states that noncompliance with the said requirements “under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.”

“Earnest effort to secure the attendance of the necessary witnesses must be proven,” the SC said.

With this mandatory policy in the chain of custody rule in drug cases, the SC said that copies of its decision be furnished to the Secretary of the Department of Justice, as well as to the Head/Chief of the National Prosecution Service, the Office of the Solicitor General, the Public Attorney’s Office, the Philippine National Police, the PDEA, the National Bureau of Investigation, and the Integrated Bar of the Philippines for their information and guidance.

The Office of the Court Administrator was also directed to disseminate copies of the decision to all trial courts, including the Court of Appeals.

The SC adopted this new mandatory policy after it resolved to reverse and set aside the February 23, 2017 decision of the Court of Appeals, which affirmed the September 24, 2013 decision of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 25, finding accused-appellant Romy Lim guilty of violating Sections 11 and 5, respectively, of Article II of RA 9165.

It also ordered the acquittal of Lim based on reasonable doubt and his immediate release from detention, unless he was being lawfully held for another cause.

The SC held that Lim should be acquitted on reasonable doubt, citing the absence of an elected public official and representatives of the DOJ and the media to witness the physical inventory and photograph of the seized items was evident.

“In fact, their signatures do not appear in the Inventory Receipt,” the SC noted.

The SC also found out that one of the apprehending officers from the Philippine Drug Enforcement Agency had testified that no members of the media and barangay officials arrived at the crime scene and that no inventory was made in the PDEA office.

The SC also said that the prosecution failed to explain why they did not secure the presence of a representative from the DOJ, and that the testimonies of the prosecution witnesses failed to establish the details of an earnest effort to coordinate with and secure presence of the required witnesses.
x x x."

What are our red lines in the South China Sea/West PH Sea?

See - 

"x x x.

Tensions are rising in the South China Sea, and a US ally there has already drawn 'red lines' with China.

Christopher Woody
Oct. 3, 2018, 9:37 PM 

Chinese Coast Guard members approach Filipino fishermen off Scarborough Shoal in the South China Sea, also called the West Philippine Sea, September 23, 2015.AP Photo/Renato Etac

Tensions between between Washington and Beijing in the South China Sea appear to have spiked in recent days.

The situation there is already fraught, as many countries have challenged China over its expansive claims and its construction on contested territory.

The US, China, and the Philippines have already had a showdown over one of those territories, and things there could quickly escalate again.

Amid a simmering trade war, the US and Chinese militaries have exchanged tit-for-tat measures with each other in recent days in and above the South China Sea.

Over the weekend, a US Navy destroyer sailed close to Chinese-occupied territory in the area, a freedom-of-navigation exercise meant in part to contest Beijing's expansive claims.

During that exercise, a Chinese destroyer approached the US ship — reportedly as close as 45 feet — in what Navy officials called an "unsafe and unprofessional maneuver."

"The tension is escalating, and that could prove to be dangerous to both sides," a senior US official told Reuters on Sunday, after China canceled a meeting between its officials and Defense Secretary Jim Mattis — the second senior-level meeting called off in a week.


The encounter between the US and Chinese ships took place near the Spratly Islands, at the southern end of the South China Sea. Farther north, at Scarborough Shoal, the US, the Philippines, and China have already butted heads, and their long-standing dispute there could quickly escalate.

The Philippines took over Scarborough after its independence in 1946. But in 2012, after a stand-off with the Philippines, China took de facto control of the shoal, blocking Filipino fishermen from entering.

Chinese control of Scarborough — about 130 miles west of the Philippine island of Luzon and about 400 miles from China's Hainan Island — is an ongoing concern for the Philippines and the US.

Given the shoal's proximity to the Luzon, if "China puts air-defense missiles and surface-to-surface missiles there, like they have at other South China Sea islands, they could reach the Philippines," Bryan Clark, a senior fellow at the Center for Strategic and Budgetary Assessments, said in late August.

That would be "the most direct sort of pushback on the Philippines' attempt to assert control over Scarborough Shoal," said Clark, a former US Navy officer.

Beyond a challenge to Manila, a military presence on Scarborough could give China more leverage throughout the South China Sea.

A Philippine flag on BRP Sierra Madre, a dilapidated Philippine navy ship that ran aground in 1999 and is now a Philippine military detachment on the disputed Second Thomas Shoal, part of the Spratly Islands, in the South China Sea, March 29, 2014.Reuters/Erik de Castro

Scarborough would be one point in a triangle edged by the Spratlys and the Paracel Islands, both of which already house Chinese military outposts.

While China can use shore-based assets in the air-defense identification zone it declared over the East China Sea in 2013, the eastern fringe of the South China Sea is out of range for that, Clark said.

"So their thought is, the Chinese would really like to develop Scarborough Shoal and put a radar on it so they can start enforcing an ADIZ, and that would allow them to kind of complete their argument that they have control and oversight over the South China Sea," Clark said.

Given Scarborough's proximity to bases in the Philippines and the country's capital, Manila, as well as to Taiwan, a presence there would extend China's intelligence-gathering ability and maritime-domain awareness, said Greg Poling, director of the Asia Maritime Transparency Initiative at the Center for Strategic and International Studies.

"But above and beyond the military implications ... China has a political interest in establishing control over all the waters and airspace within the nine-dash line, in both peace and war," Poling said in an email, referring to the boundary of China's expansive claim in the South China Sea.
'What is our red line?'

Philippine President Rodrigo Duterte, right, with Chinese President Xi Jinping before a ceremony in Beijing, October 20, 2016.Getty Images

After 2012, Manila took its case to the Permanent Court for Arbitration at The Hague, which ruled in favor of the Philippines in July 2016, rejecting China's claims and finding that Beijing had interfered with Philippine rights in its exclusive economic zone, including at Scarborough. (EEZs can extend 230 miles from a country's coast.)

Ahead of that ruling, the US detected signs China was getting ready to reclaim land at the shoal, and then-President Barack Obama reportedly warned Chinese President Xi Jinping of serious consequences for doing so, which was followed by China withdrawing its ships from the area.

That warning was followed by increased Pentagon activity in the region, including flying A-10 Thunderbolts, which are ground-attack aircraft, near Scarborough a month later.

Tensions between China and Philippines eased after the ruling was issued, however, as Philippine President Rodrigo Duterte, who took office in July 2016, pursued rapprochement.

The Philippines said in February 2017 that it expected China to try to build on the reef, which Manila called "unacceptable." The following month, Chinese authorities removed comments by an official about building on Scarborough from state-backed media, raising questions about Beijing's plans.

A Filipino soldier patrols Pagasa island, or Thitu Island, in the Spratly Islands in the South China Sea, west of Palawan, Philippines, May 11, 2015.REUTERS/Ritchie B. Tongo

More recently, the Philippines warned China of its limits at Scarborough.

"What is our red line? Our red line is that they cannot build on Scarborough [Shoal]," Philippine Foreign Secretary Alan Peter Cayetano said in May.

Cayetano said the other two red lines were Chinese action against Philippine troops stationed at Second Thomas Shoal in the Spratlys and the unilateral exploration of natural resources in the area. Hesaid China had been made aware of the Philippine position and that Beijing had its own "red line" for the area.

In July, the acting chief justice of the Philippine supreme court, Antonio Carpio, said Manila should ask the US make Scarborough an "official red line," requesting its recognition as Philippine territory under the US-Philippine Mutual Defense Treaty, which obligates each to come to the aid of the other in case of attack.

"Duterte himself has reportedly said that Chinese construction of a permanent facility at Scarborough would be a red line for the Philippines," Poling said.

The Philippines' "one real option" to try to prevent Chinese construction on Scarborough would be to invoke that defense treaty, Poling said.

Defense Secretary Ash Carter with US Navy Cmdr. Robert C. Francis Jr., aboard the aircraft carrier USS Theodore Roosevelt in the South China Sea, November 5, 2015.REUTERS/Senior Master Sgt. Adrian Cadiz/Department of Defense

It's not clear if the treaty applies to the shoal, Poling added, "but the treaty definitely does apply to an attack on Filipino armed forces or ships anywhere in the Pacific."

"So Manila would probably need to send Navy or Coast Guard ships to interfere with any work China attempted at Scarborough ... and then call for US intervention should China use force."

That could cause China to back off, as Obama's warning in 2016 did, Poling said.

While China has pulled back from previous attempts to build on the shoal, "they've got ships floating around the area just waiting for the chance," Clark said in late August. "So I wouldn't be surprised if China tries to restart that project in the next year to ... gauge what the US reaction is and see if they can get away with it."

That would almost certainly force the hand of the US and the Philippines.

"If China's able to start building an island there and put systems on it, and the Philippines doesn't resist ... all bets are off," Clark said. "China feels emboldened to say the South China Sea is essentially a Chinese area."

NOW WATCH: How US Navy carrier strike groups turn the world's oceans into a buffer between the US and war

More: China South China Sea South China Sea Dispute scarborough shoal

x x x."

Payment of docket/filing fees via Land Bank [pilot project]; TSN fee now P20/page [indigents exempted]; 1st level trial judges upgraded to Salary Grade 28.

See -
"x x x.

"Supreme Court introduces direct payment of filing fees to LandBank."

posted October 04, 2018 at 11:40 pm 
by Rey E. Requejo 

Chief Justice Teresita Leonardo de Castro on Thursday announced that the Supreme Court has launched a pilot test in Valenzuela City, in which the payment of legal fees in court cases, like filing fees, is paid directly to the Land Bank of the Philippines.

De Castro said if successful, the project will be implemented nationwide to cover all courts and with the participation of other banks and online payment outlets.

The pilot test in Valenzuela allows the litigants who are filing cases in courts within the city to pay the fees directly to LBP branches. They would merely attach the deposit slips or receipts in their pleadings for filing with the courts.

Meanwhile, with the approval of the Court en banc, De Castro authorized the increase in the payment of transcript of stenographic notes from P10 to P20 per page.

Stenographic notes are needed by lawyers and litigants in the preparation of succeeding pleadings in their court cases.

The increase would benefit directly court stenographers nationwide. The P10 per page was set in year 2000.

Exempted from the payment of the transcript of stenographic notes are indigent litigants and those represented by the Public Attorneys Office of the Department of Justice.
The two reform measures adopted by the high court have been recommended by Court Administrator Jose Midas P. Marquez.

Marquez said of the amount collected from the transcript of stenographic notes, one-third of the amount goes to the Judiciary Development Fund while the rest goes to the concerned court stenographer.

Last month, De Castro also ordered the implementation of salary increases, retroactive to July 1, for judges in the first level courts—municipal trial courts, municipal circuit trial courts, municipal trial courts in cities and Shari’a circuit courts.

The salary increase was the result of the upgrading of the judges’ positions from Grades 26 and 27 to Grade 28.
With the upgrading of positions, the judges’ salaries would be increased from the current P102,000 to P114,000 and to as much as P127,000 per month.

x x x."

Ratificatioin of treaties.

See -

"x x x.


Oct. 7, 2018

Pending before the Supreme Court are petitions to declare invalid the Philippines’ withdrawal from the Rome Statute (which created the International Criminal Court or ICC) because the decision to withdraw was made without the approval of the Senate.

The Integrated Bar of the Philippines is one of the petitioners because of its laudable advocacy for defense of human rights.

The Philippine Constitution provides that “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”

DFA practice

Because the cited provision speaks only of Senate concurrence in the ratification of treaties, the Department of Foreign Affairs (DFA) follows a procedure of referring to the Senate all treaties ratified by the President, but its consultation with the Senate ends after the Senate has given its concurrence. There is no language in the Constitution requiring Senate concurrence with respect to withdrawal from treaties.

This practice of the DFA is based on the principle of separation of powers and that treaty making is an executive power and part of the power of the President to conduct foreign affairs. On the other hand, the requirement of Senate concurrence in the ratification of treaties is part of the system of checks and balances in the Constitution.

Once the treaty enters into force for the Philippines, its implementation, including the terms for its termination, depends on the provisions of the treaty itself and the Law of Treaties, to which the Philippines is also a party. Thus, the Senate has already given its prior approval to the terms and the manner for the withdrawal from the Rome Statute, which is one of the ways by which the Philippines may terminate this treaty.

According to the Law of Treaties, whose provisions reflect in great part Customary International Law, the termination of a treaty or withdrawal of a party may take place because of a variety of circumstances, including a material breach of a treaty, supervening impossibility of performance, fundamental change of circumstances, severance of diplomatic relations, emergence of a new peremptory norm of international law, among many others.

The DFA is the institution in the government that has the expertise and the resources to make a diligent study regarding these matters. With its silence requiring Senate concurrence for withdrawal from treaties, the Constitution has opted not to impose a burden on the Senate to consider the wisdom of withdrawal.

Senate’s position

During the present 17th Congress, the Senate has adopted the practice of imposing the condition that the President may not withdraw from the treaty without its concurrence, starting with its approval of the Asian Infrastructure Investment Bank Agreement. However, the Senate had imposed no such condition when it concurred in ratifying the Rome Statute in 2011 during the time of President Benigno Aquino 3rd. Some senators have reflected that this recent Senate practice may be construed as an admission that the Constitution does not require Senate approval for Philippine withdrawal from its treaties.

With respect to the Rome Statute, some 14 senators signed Senate Resolution 289 in February 2017, when President Rodrigo Roa Duterte declared his intention to scrap the Visiting Forces Agreement and to withdraw from the ICC. The Resolution declared:

“A treaty or international agreement ratified by the President and concurred in by the Senate becomes part of the law of the land and may not be undone without the shared power that put it into effect.”

This Senate Resolution was intended to have retroactive effect but it was not put to a vote and has not become the official position of the Senate. This has avoided a confrontation with the President when the DFA sent the Notice of Withdrawal from the Rome Stature in accordance with the procedure stated in the treaty.

Some senators have admitted that the current practice of the Senate of giving its consent to the ratification of a treaty, subject to requiring Senate approval of withdrawal from the treaty, could be questioned before the Supreme Court. Under this practice, a minority of senators may block the Philippines’ withdrawal from a treaty,

Supreme Court as arbiter

Since the Constitution is silent on the matter of Senate concurrence on withdrawal from treaties, the Petitioners have sought to fill this void through the interpretation of certain provisions of the Constitution and deductive reasoning based on the perceived similarity between a law and a treaty.

It is argued that, since the ratification of the Rome Statute by the President was concurred in by the Senate, withdrawal, as a constitutional matter, requires a similar concurrence. On the other hand, under the Constitution, the President nominates, and with the consent of the Commission on Appointments, appoints the heads of executive departments and Ambassadors but the President has exercised the power to dismiss them without consulting Congress.

Another argument presented is that, while the conduct of foreign affairs is a function of the executive branch, a treaty needs Senate action when it enters into force in the Philippines because it has the same binding effect as a statute. It is argued that allowing the Senate to ratify the Philippines’ withdrawal from the ICC “is not a question of diluting the powers of the Executive, but of seeing to the non-dilution of legislative power by sole fiat of the Executive in respect to treaty-making or treaty-denunciation.”

However, as stated above, the Senate does not exercise inherent legislative powers when it concurs in the ratification of treaties but acts as a check on the President’s power. Thus, this power should be expressly delegated and consequently one cannot speak of dilution of the legislative power. The treaty has the binding effect of a statute because of the Constitutional provisions on treaty-making and that “the Philippines accepts the generally accepted principles of international law as part of the law of the land.” Without these constitutional provisions, the treaty might have to be passed into a law by legislative process to have the force of a statute.

A corollary argument advanced to support the thesis of the petitioners is that the President would be granted broad law-making powers if the Senate did not have the power to withhold its consent on his power to withdraw from a treaty. If the President alone enjoyed the unfettered prerogative to enter into treaties, he could effectively alter the Philippine legal system and its legislative framework without the participation of the legislative. It is argued that the same thing would be true in respect of the denunciation or withdrawal from membership in a treaty organization.

As illustration, it is argued that the Philippines would obviously go through an overhaul of its legal system were the Philippines to denounce the UN Convention on the Law of the Sea and that its effects on the definition of its territorial sea and its claims to sovereign rights would be severely altered.

But the overhaul of the legal system would not automatically take place. The denunciation of a treaty is not the same as the repeal of a law. If the Philippines were to denounce the UN Convention on the Law of the Sea, this would not automatically repeal the laws passed by the Philippines to ensure that its laws are consistent with the Convention like the Archipelagic Baselines Law. There would be a need to repeal or amend them by new legislation if this was desired.

Moreover, the provisions of the UN Convention of the Law of the Sea would not be altered by the denunciation. The rules of the Convention on the sovereign rights and obligations of nations to the different maritime zones would remain the same. The Philippines’ primary rights and obligations to its maritime zones could be modified only with the consent of the other parties affected.

A variant of the above arguments is that the Rome Statute is a form of treaty that cannot be repealed without the approval of Congress. The Constitution expressly provides that the President has the duty to faithfully execute the laws. Since the Rome Statute has the same status as a law, the President has also the constitutional duty to faithfully execute this treaty. Therefore, it is suggested that this duty prevents the President from abrogating the treaty himself and that if abrogation is desired, the proper procedure would be for Congress to be the one to abrogate the treaty by passing a law, as a treaty can be repealed by a subsequent law.

While the President has the duty to faithfully execute the laws of the land, including treaties entered into, the Philippines as a Contracting Party to a treaty always has the right to terminate or denounce the treaty in accordance with its terms. The power to terminate or denounce a treaty is an executive power.

The remedy of abrogating a treaty by passing a subsequent law may not satisfy the requirements of the treaty for its termination or denunciation. While under Philippine law, if there is irreconcilable conflict between a treaty and a law, the rule is that whichever is later prevails. But this does not have the legal effect of the later law repealing the treaty. The provisions of the treaty itself would determine the status of the treaty under international law.

We await the Supreme Court’s decision on this legal question. Supreme Court Associate Justice Mario Victor Leonen has cautioned: ”The Court may not want to become the judicial dictator of this country over extending its power to realms which might be political in nature rather than legal.”

x x x."

Friday, October 5, 2018

Concurrent jurisdiction: "Where concurrent jurisdiction exists in several tribunals, the body that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. In this case, it was CSC which first acquired jurisdiction over the case because the complaint was filed before it. Thus, it had the authority to proceed and decide the case to the exclusion of the DepEd and the Board of Professional Teachers."

See -

"x x x.

G.R. No. 198755 June 5, 2013

The petitioner’s argument that the administrative case against him can only proceed under R.A. No. 4670 is misplaced.

In Puse v. Santos-Puse,10 it was held that the CSC, the Department of Education (DepEd) and the Board of Professional Teachers-Professional Regulatory Commission (PRC) have concurrent jurisdiction over administrative cases against public school teachers.

Under Article IX-B of the 1987 Constitution, the CSC is the body charged with the establishment and administration of a career civil service which embraces all branches and agencies of the government.11 Executive Order (E.O.) No. 292 (the Administrative Code of 1987)12 and Presidential Decree (P.D.) No. 807 (the Civil Service Decree of the Philippines)13 expressly provide that the CSC has the power to hear and decide administrative disciplinary cases instituted with it or brought to it on appeal. Thus, the CSC, as the central personnel agency of the government, has the inherent power to supervise and discipline all members of the civil service, including public school teachers.

Indeed, under Section 9 of R.A. No. 4670, the jurisdiction over administrative cases of public school teachers is lodged with the investigating committee constituted therein.14 Also, under Section 23 of R.A. No. 7836 (the Philippine Teachers Professionalization Act of 1994), the Board of Professional Teachers is given the power, after due notice and hearing, to suspend or revoke the certificate of registration of a professional teacher for causes enumerated therein.15

Concurrent jurisdiction is that which is possessed over the same parties or subject matter at the same time by two or more separate tribunals. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.16

Where concurrent jurisdiction exists in several tribunals, the body that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. In this case, it was CSC which first acquired jurisdiction over the case because the complaint was filed before it. Thus, it had the authority to proceed and decide the case to the exclusion of the DepEd and the Board of Professional Teachers.17

In CSC v. Alfonso,18 it was held that special laws, such as R.A. No. 4670, do not divest the CSC of its inherent power to supervise and discipline all members of the civil service, including public school teachers. Pat-og, as a public school teacher, is first and foremost, a civil servant accountable to the people and answerable to the CSC for complaints lodged against him as a public servant. To hold that R.A. No. 4670 divests the CSC of its power to discipline public school teachers would negate the very purpose for which the CSC was established and would impliedly amend the Constitution itself.

To further drive home the point, it was ruled in CSC v. Macud19 that R.A. No. 4670, in imposing a separate set of procedural requirements in connection with administrative proceedings against public school teachers, should be construed to refer only to the specific procedure to be followed in administrative investigations conducted by the DepEd. By no means, then, did R.A. No. 4670 confer an exclusive disciplinary authority over public school teachers on the DepEd.

At any rate, granting that the CSC was without jurisdiction, the petitioner is indeed estopped from raising the issue. Although the rule states that a jurisdictional question may be raised at any time, such rule admits of the exception where, as in this case, estoppel has supervened.20 Here, instead of opposing the CSC’s exercise of jurisdiction, the petitioner invoked the same by actively participating in the proceedings before the CSC-CAR and by even filing his appeal before the CSC itself; only raising the issue of jurisdiction later in his motion for reconsideration after the CSC denied his appeal. This Court has time and again frowned upon the undesirable practice of a party submitting his case for decision and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction when adverse.21

x x x."

Administrative cases; the right to cross-examine is not an indispensable aspect of administrative due process

See -"x x x.

G.R. No. 198755, June 5, 2013

The essence of due process is simply to be heard, or as applied to administrative proceedings, a fair and reasonable opportunity to explain one’s side, or an opportunity to seek a reconsideration of the action or ruling complained of.22 Administrative due process cannot be fully equated with due process in its strict judicial sense. In administrative proceedings, a formal or trial-type hearing is not always necessary23 and technical rules of procedure are not strictly applied. Hence, the right to cross-examine is not an indispensable aspect of administrative due process.24 The petitioner cannot, therefore, argue that the affidavit of Bang-on and his witnesses are hearsay and insufficient to prove his guilt.

At any rate, having actively participated in the proceedings before the CSC-CAR, the CSC, and the CA, the petitioner was apparently afforded every opportunity to explain his side and seek reconsideration of the ruling against him.1âwphi1

As to the issue of the veracity of the affidavits, such is a question of fact which cannot now be raised before the Court under Rule 45 of the Rules of Court. The CSC-CAR, the CSC and the CA did not, therefore, err in giving credence to the affidavits of the complainants and his witnesses, and in consequently ruling that there was substantial evidence to support the finding of misconduct on the part of the petitioner.

x x x."