Sunday, June 17, 2012

Aung San Suu Kyi - Nobel Lecture

Aung San Suu Kyi - Nobel Lecture

I digress for a while in favor of the Mandela of Asean, Aung San Suu Kyi. Read her Nobel Peace Prize lecture. 


"x x x.


Nobel Lecture

Nobel Lecture by Aung San Suu Kyi, Oslo, 16 June, 2012
Your Majesties, Your Royal Highness, Excellencies, Distinguished members of the Norwegian Nobel Committee, Dear Friends,
Long years ago, sometimes it seems many lives ago, I was at Oxford listening to the radio programme Desert Island Discs with my young son Alexander. It was a well-known programme (for all I know it still continues) on which famous people from all walks of life were invited to talk about the eight discs, the one book beside the bible and the complete works of Shakespeare, and the one luxury item they would wish to have with them were they to be marooned on a desert island. At the end of the programme, which we had both enjoyed, Alexander asked me if I thought I might ever be invited to speak on Desert Island Discs. “Why not?” I responded lightly. Since he knew that in general only celebrities took part in the programme he proceeded to ask, with genuine interest, for what reason I thought I might be invited. I considered this for a moment and then answered: “Perhaps because I’d have won the Nobel Prize for literature,” and we both laughed. The prospect seemed pleasant but hardly probable.
(I cannot now remember why I gave that answer, perhaps because I had recently read a book by a Nobel Laureate or perhaps because the Desert Island celebrity of that day had been a famous writer.)
In 1989, when my late husband Michael Aris came to see me during my first term of house arrest, he told me that a friend, John Finnis, had nominated me for the Nobel Peace Prize. This time also I laughed. For an instant Michael looked amazed, then he realized why I was amused. The Nobel Peace Prize? A pleasant prospect, but quite improbable! So how did I feel when I was actually awarded the Nobel Prize for Peace? The question has been put to me many times and this is surely the most appropriate occasion on which to examine what the Nobel Prize means to me and what peace means to me.
As I have said repeatedly in many an interview, I heard the news that I had been awarded the Nobel Peace Prize on the radio one evening. It did not altogether come as a surprise because I had been mentioned as one of the frontrunners for the prize in a number of broadcasts during the previous week. While drafting this lecture, I have tried very hard to remember what my immediate reaction to the announcement of the award had been. I think, I can no longer be sure, it was something like: “Oh, so they’ve decided to give it to me.” It did not seem quite real because in a sense I did not feel myself to be quite real at that time.
Often during my days of house arrest it felt as though I were no longer a part of the real world. There was the house which was my world, there was the world of others who also were not free but who were together in prison as a community, and there was the world of the free; each was a different planet pursuing its own separate course in an indifferent universe. What the Nobel Peace Prize did was to draw me once again into the world of other human beings outside the isolated area in which I lived, to restore a sense of reality to me. This did not happen instantly, of course, but as the days and months went by and news of reactions to the award came over the airwaves, I began to understand the significance of the Nobel Prize. It had made me real once again; it had drawn me back into the wider human community. And what was more important, the Nobel Prize had drawn the attention of the world to the struggle for democracy and human rights in Burma. We were not going to be forgotten.
To be forgotten. The French say that to part is to die a little. To be forgotten too is to die a little. It is to lose some of the links that anchor us to the rest of humanity. When I met Burmese migrant workers and refugees during my recent visit to Thailand, many cried out: “Don’t forget us!” They meant: “don’t forget our plight, don’t forget to do what you can to help us, don’t forget we also belong to your world.” When the Nobel Committee awarded the Peace Prize to me they were recognizing that the oppressed and the isolated in Burma were also a part of the world, they were recognizing the oneness of humanity. So for me receiving the Nobel Peace Prize means personally extending my concerns for democracy and human rights beyond national borders. The Nobel Peace Prize opened up a door in my heart.
The Burmese concept of peace can be explained as the happiness arising from the cessation of factors that militate against the harmonious and the wholesome. The word nyein-chan translates literally as the beneficial coolness that comes when a fire is extinguished. Fires of suffering and strife are raging around the world. In my own country, hostilities have not ceased in the far north; to the west, communal violence resulting in arson and murder were taking place just several days before I started out on the journey that has brought me here today. News of atrocities in other reaches of the earth abound. Reports of hunger, disease, displacement, joblessness, poverty, injustice, discrimination, prejudice, bigotry; these are our daily fare. Everywhere there are negative forces eating away at the foundations of peace. Everywhere can be found thoughtless dissipation of material and human resources that are necessary for the conservation of harmony and happiness in our world.
The First World War represented a terrifying waste of youth and potential, a cruel squandering of the positive forces of our planet. The poetry of that era has a special significance for me because I first read it at a time when I was the same age as many of those young men who had to face the prospect of withering before they had barely blossomed. A young American fighting with the French Foreign Legion wrote before he was killed in action in 1916 that he would meet his death:  “at some disputed barricade;” “on some scarred slope of battered hill;” “at midnight in some flaming town.” Youth and love and life perishing forever in senseless attempts to capture nameless, unremembered places. And for what? Nearly a century on, we have yet to find a satisfactory answer.
Are we not still guilty, if to a less violent degree, of recklessness, of improvidence with regard to our future and our humanity? War is not the only arena where peace is done to death. Wherever suffering is ignored, there will be the seeds of conflict, for suffering degrades and embitters and enrages.
A positive aspect of living in isolation was that I had ample time in which to ruminate over the meaning of words and precepts that I had known and accepted all my life. As a Buddhist, I had heard about dukha, generally translated as suffering, since I was a small child. Almost on a daily basis elderly, and sometimes not so elderly, people around me would murmur “dukha, dukha” when they suffered from aches and pains or when they met with some small, annoying mishaps. However, it was only during my years of house arrest that I got around to investigating the nature of the six great dukha. These are: to be conceived, to age, to sicken, to die, to be parted from those one loves, to be forced to live in propinquity with those one does not love. I examined each of the six great sufferings, not in a religious context but in the context of our ordinary, everyday lives. If suffering were an unavoidable part of our existence, we should try to alleviate it as far as possible in practical, earthly ways. I mulled over the effectiveness of ante- and post-natal programmes and mother and childcare; of adequate facilities for the aging population; of comprehensive health services; of compassionate nursing and hospices. I was particularly intrigued by the last two kinds of suffering: to be parted from those one loves and to be forced to live in propinquity with those one does not love. What experiences might our Lord Buddha have undergone in his own life that he had included these two states among the great sufferings? I thought of prisoners and refugees, of migrant workers and victims of human trafficking, of that great mass of the uprooted of the earth who have been torn away from their homes, parted from families and friends, forced to live out their lives among strangers who are not always welcoming.
We are fortunate to be living in an age when social welfare and humanitarian assistance are recognized not only as desirable but necessary. I am fortunate to be living in an age when the fate of prisoners of conscience anywhere has become the concern of peoples everywhere, an age when democracy and human rights are widely, even if not universally, accepted as the birthright of all. How often during my years under house arrest have I drawn strength from my favourite passages in the preamble to the Universal Declaration of Human Rights:
……. disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspirations of the common people,
…… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . .
If I am asked why I am fighting for human rights in Burma the above passages will provide the answer. If I am asked why I am fighting for democracy in Burma, it is because I believe that democratic institutions and practices are necessary for the guarantee of human rights.
Over the past year there have been signs that the endeavours of those who believe in democracy and human rights are beginning to bear fruit in Burma. There have been changes in a positive direction; steps towards democratization have been taken. If I advocate cautious optimism it is not because I do not have faith in the future but because I do not want to encourage blind faith. Without faith in the future, without the conviction that democratic values and fundamental human rights are not only necessary but possible for our society, our movement could not have been sustained throughout the destroying years. Some of our warriors fell at their post, some deserted us, but a dedicated core remained strong and committed. At times when I think of the years that have passed, I am amazed that so many remained staunch under the most trying circumstances. Their faith in our cause is not blind; it is based on a clear-eyed assessment of their own powers of endurance and a profound respect for the aspirations of our people.
It is because of recent changes in my country that I am with you today; and these changes have come about because of you and other lovers of freedom and justice who contributed towards a global awareness of our situation. Before continuing to speak of my country, may I speak out for our prisoners of conscience. There still remain such prisoners in Burma. It is to be feared that because the best known detainees have been released, the remainder, the unknown ones, will be forgotten. I am standing here because I was once a prisoner of conscience. As you look at me and listen to me, please remember the often repeated truth that one prisoner of conscience is one too many. Those who have not yet been freed, those who have not yet been given access to the benefits of justice in my country number much more than one. Please remember them and do whatever is possible to effect their earliest, unconditional release.
Burma is a country of many ethnic nationalities and faith in its future can be founded only on a true spirit of union. Since we achieved independence in 1948, there never has been a time when we could claim the whole country was at peace. We have not been able to develop the trust and understanding necessary to remove causes of conflict. Hopes were raised by ceasefires that were maintained from the early 1990s until 2010 when these broke down over the course of a few months. One unconsidered move can be enough to remove long-standing ceasefires. In recent months, negotiations between the government and ethnic nationality forces have been making progress. We hope that ceasefire agreements will lead to political settlements founded on the aspirations of the peoples, and the spirit of union.
My party, the National League for Democracy, and I stand ready and willing to play any role in the process of national reconciliation. The reform measures that were put into motion by President U Thein Sein’s government can be sustained only with the intelligent cooperation of all internal forces: the military, our ethnic nationalities, political parties, the media, civil society organizations, the business community and, most important of all, the general public. We can say that reform is effective only if the lives of the people are improved and in this regard, the international community has a vital role to play. Development and humanitarian aid, bi-lateral agreements and investments should be coordinated and calibrated to ensure that these will promote social, political and economic growth that is balanced and sustainable. The potential of our country is enormous. This should be nurtured and developed to create not just a more prosperous but also a more harmonious, democratic society where our people can live in peace, security and freedom.
The peace of our world is indivisible. As long as negative forces are getting the better of positive forces anywhere, we are all at risk. It may be questioned whether all negative forces could ever be removed. The simple answer is: “No!” It is in human nature to contain both the positive and the negative. However, it is also within human capability to work to reinforce the positive and to minimize or neutralize the negative. Absolute peace in our world is an unattainable goal. But it is one towards which we must continue to journey, our eyes fixed on it as a traveller in a desert fixes his eyes on the one guiding star that will lead him to salvation. Even if we do not achieve perfect peace on earth, because perfect peace is not of this earth, common endeavours to gain peace will unite individuals and nations in trust and friendship and help to make our human community safer and kinder.
I used the word ‘kinder’ after careful deliberation; I might say the careful deliberation of many years. Of the sweets of adversity, and let me say that these are not numerous, I have found the sweetest, the most precious of all, is the lesson I learnt on the value of kindness. Every kindness I received, small or big, convinced me that there could never be enough of it in our world. To be kind is to respond with sensitivity and human warmth to the hopes and needs of others. Even the briefest touch of kindness can lighten a heavy heart. Kindness can change the lives of people. Norway has shown exemplary kindness in providing a home for the displaced of the earth, offering sanctuary to those who have been cut loose from the moorings of security and freedom in their native lands.
There are refugees in all parts of the world. When I was at the Maela refugee camp in Thailand recently, I met dedicated people who were striving daily to make the lives of the inmates as free from hardship as possible. They spoke of their concern over ‘donor fatigue,’ which could also translate as ‘compassion fatigue.’ ‘Donor fatigue’ expresses itself precisely in the reduction of funding. ‘Compassion fatigue’ expresses itself less obviously in the reduction of concern. One is the consequence of the other. Can we afford to indulge in compassion fatigue? Is the cost of meeting the needs of refugees greater than the cost that would be consequent on turning an indifferent, if not a blind, eye on their suffering? I appeal to donors the world over to fulfill the needs of these people who are in search, often it must seem to them a vain search, of refuge.
At Maela, I had valuable discussions with Thai officials responsible for the administration of Tak province where this and several other camps are situated. They acquainted me with some of the more serious problems related to refugee camps: violation of forestry laws, illegal drug use, home brewed spirits, the problems of controlling malaria, tuberculosis, dengue fever and cholera. The concerns of the administration are as legitimate as the concerns of the refugees. Host countries also deserve consideration and practical help in coping with the difficulties related to their responsibilities.
Ultimately our aim should be to create a world free from the displaced, the homeless and the hopeless, a world of which each and every corner is a true sanctuary where the inhabitants will have the freedom and the capacity to live in peace. Every thought, every word, and every action that adds to the positive and the wholesome is a contribution to peace. Each and every one of us is capable of making such a contribution. Let us join hands to try to create a peaceful world where we can sleep in security and wake in happiness.
The Nobel Committee concluded its statement of 14 October 1991 with the words: “In awarding the Nobel Peace Prize ... to Aung San Suu Kyi, the Norwegian Nobel Committee wishes to honour this woman for her unflagging efforts and to show its support for the many people throughout the world who are striving to attain democracy, human rights and ethnic conciliation by peaceful means.” When I joined the democracy movement in Burma it never occurred to me that I might ever be the recipient of any prize or honour. The prize we were working for was a free, secure and just society where our people might be able to realize their full potential. The honour lay in our endeavour. History had given us the opportunity to give of our best for a cause in which we believed. When the Nobel Committee chose to honour me, the road I had chosen of my own free will became a less lonely path to follow. For this I thank the Committee, the people of Norway and peoples all over the world whose support has strengthened my faith in the common quest for peace. Thank you.

Copyright © The Nobel Foundation 2012
TO CITE THIS PAGE:
MLA style: "Aung San Suu Kyi - Nobel Lecture". Nobelprize.org. 17 Jun 2012 http://www.nobelprize.org/nobel_prizes/peace/laureates/1991/kyi-lecture_en.html

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Moral and exemplary damages in labor cases


We are sharing the legal research part of a recent appeal memorandum we filed in a labor case, where our client won in the decision issued by the Arbiter but the same did not award moral and exemplary damages in favor of our client. In the partial appeal, we prayed for such an award.



X x x .

A.     THIS LIMITED/PARTIAL APPEAL ONLY WITH RESPECT TO THE ABSENCE OF AN AWARD OF MORAL AND EXEMPLARY DAMAGES FOR THE MENTAL ANGUISH, ANXIETIES, HUMILIATION AND RIDICULE THAT X X X HAD SUFFERED BY REASON OF THE GROSS NEGLIGENCE, BAD FAITH, AND MALICE OF THE RESPODNENTS IN TERMINATING HIM AS A WORKER AND IN ORDER TO SERVE AS A LESSON TO SOCIETY.


This appeal is limited and partial only, i.e., with respect only to the absence of an award of MORAL AND EXEMPLARY DAMAGES.

      Please note that the body and decretal of the Decision disposed of the issue of DAMAGES claimed and prayed for by X X X in his Complaint, Position Paper and Reply Position Paper  in a very short, terse, succinct, brief, and direct manner, thus:

      “All other claims are dismissed for lack of merit.”


      Note that it did not contain a RATIO DECINDENDI for such a holding or conclusion, contrary to the requirements, letter and spirit of the 1987 CONSTITUTION.  See Art. VIII, Sec. 14 of the 1987 Constitution, to wit:

      SEC. 14. - No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.


Article 2219 of the Civil Code provides for recovery of moral damages in certain cases:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

X x x.

 (10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

X x x.”

     
ARTICLE 21 of the Civil Code provides that:

“Any person who willfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage”.


X X X humbly submits that the respondents, by intentionally and maliciously committing the illegal act of UNLAWFUL DISMISSAL of his employment without just cause, without proper due process of law, and without respecting his right to counsel, had WILFULLY caused him LOSS OR INJURY, The loss involved his proprietary right to LIVELIHOOD AND EMPLOYMENT. The injury consisted of MENTRAL ANGUISH, BESMIRCHED RERPUTATION, PUBLIC RDICULE, SLEEPLESS NIGHTS, AND EXTREME ANXIETIES as a human being. Such illegal and unjust act of the respondents was CONTRARY TO MORAK, GOOSD CUSTOMS AND PUBLIC POLICY.

They should therefore be held liable for MORAL DAMAGES jointly and severally.

This is also the mandate of Art. 2176 (in relation to Art. 2180) of the Civil Code on TORT AND DAMAGES, or QUASI-DELICT or culpa ACQUILLANA (based on GROSS NEGLIGENCE amounting to BAD FAITH AND MALICE).

ARTICLE 26 of the Civil Code provides that:

“Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

X x x.

(3) Intriguing to cause another to be alienated from his friends;

X x x.”


      By committing the illegal act of UNJUST DISMISSAL of the worker X X X, the respondents violated his DIGNITY, PERSONALITY, AND PEACE OF MIND. They cause UNNECESSARY AND WRONGFUL INTRIGUES against his name, honor, and reputation as a worker and human being among his co-workers in the company, especially among his subordinates who looked up to him with respect.

ARTICLE 32 of the Civil Code provides:

“Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

X x x.

(8) The right to the equal protection of the laws;

X x x.
 (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

X x x.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

X x x..”

The respondents, as private individuals (natural and juridical persons) intentionally violated the human rights and liberties of X X X, i.e, his right to EQUAL PROTECTION OF THE LAWS, his right to be assisted by counsel in an administrative proceeding, and the right to remain silent in any proceeding. The notice of hearing issued to X X X did not contain a clear statement informing him of his right to counsel during the administrative proceeding. The respondents were assisted by a battery of lawyers and inhouse HRD personnel to investigate him. He was alone – worried, anxious, nervous, and ignorant of what to do on the spot during the said proceeding because he was not informed of his right to counsel. He was induced to speak out during the said proceeding without informing him of his right to remain silent.  He was not allowed to cross-examine the complainants and witnesses against him during such administrative proceeding. Not even to be provided with copies of the complaints against him, or the minutes and transcripts of the proceeding. X X X is not a lawyer and has no working legal skills or training.

Article 2229 of the Civil Code, on the other hand, provides for recovery of exemplary damages:

Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.


      The best way to punish natural and juridical respondents, such as the respondents in this case, is to impose EXEMPLARY DAMAGES in order to serve as a lesson to society.

Otherwise, rich and powerful companies and management officers and executives, like the respondents in this case, who selfishly and arrogantly think that they are gods and goddesses in their corporate and feudal kingdoms and turfs, can easily, at anytime, violate with impunity and grave abuse and ill intent the basic human rights, liberties, and dignity of their lowly workers, like X X X, who was ILEGALLY DISMISSED by the respondents with full intent, knowledge and purpose to make him suffer based on unfounded, flimsy, and unjustified grounds that they had wittingly or unwittingly manufactured or invented in their minds or that they had intentionally and wrongfully misinterpreted and misjudged in their minds, resulting in grave and irreparable loss and prejudice to X X X.
     
      In the recent case of Aliling vs. Feliciano, et. al., G.R. No. 185829, April 25, 2012, it was held that “to effect a legal dismissal, the employer must show not only a valid ground therefor, but also that procedural due process has properly been observed”; that “when the Labor Code speaks of procedural due process, the reference is usually to the two (2)-written notice rule envisaged in Section 2 (III), Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, which provides:

Section 2. Standard of due process: requirements of notice. — In all cases of termination of employment, the following standards of due process shall be substantially observed.

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and

(c) A written notice [of] termination served on the employee indicating that upon due consideration of all the circumstance, grounds have been established to justify his termination.


      In the recent case of SARONA vs. NLRC, et. al., G.R. No. 185280, January 18, 2012, it was held (a) that moral damages may be recovered where the dismissal of the employee was tainted by bad faith or fraud, or where it constituted an act oppressive to labor, and done in a manner contrary to morals, good customs or public policy and (b) that exemplary damages are recoverable if the dismissal was done in a wanton, oppressive, or malevolent manner. 

      Further, in the recent case of BRIGHT MARITIME CORPORATION (BMC)/DESIREE P. TENORIO vs. RICARDO B. FANTONIAL, G.R. No. 165935, February 8, 2012, moral damages were awarded because the employer’s act was “tainted with bad faith, considering that respondent’s Medical Certificate stated that he was fit to work on the day of his scheduled departure, yet he was not allowed to leave allegedly for medical reasons”. Further, in the said case, exemplary damages was also imposed on the employer  “by way of example or correction for the public good in view of petitioner’s act of preventing respondent from being deployed on the ground that he was not yet declared fit to work on the date of his departure, despite evidence to the contrary”.  The Court added: “x x x. Exemplary damages are imposed not to enrich one party or impoverish another, but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions.”


X x x.


I.                   RELIEF.
WHEREFORE, premises considered, it is respectfully prayed that the appealed Decision be AFFIRMED insofar as the finding of ILLEGAL DISMISSAL and the award of backwages, separation pay, terminal pay, and attorney’s fees are concerned but MODIFIED as to impose on the respondents, jointly and severally, the duty to pay complainant-appellant MORAL AND EXEMPLARY DAMAGES at such amounts as the Honorable Commission may find wise, fit, necessary, and justified by the evidence.

FURTHER, the complainant-appellant prays for such and other reliefs, as may be deemed just and equitable in the premises.
Las Pinas City, June 18, 2012.


LASERNA CUEVA-MERCADER
LAW OFFICES

Counsel for Complainant-Appellant                            
Unit 15, Star Arcade, C.V. Star Ave.
Philamlife Village, Las Pinas City 1743
Tel/Fax 8462539, 8725443


X x x.

Sunday, June 10, 2012

Consequences of conviction | Inquirer Opinion

Consequences of conviction | Inquirer Opinion

"x x x.


In its written “Judgment” dated May 29, 2012, the Senate convicted Chief Justice Renato C. Corona and imposed “the penalty of removal from office and disqualification to hold any office under the Republic of the Philippines.”
Further prosecution. Consequently, he cannot be elected or appointed to or work in any public office. Further, the Constitution adds, “[T]he party convicted shall … be liable and subject to prosecution, trial and punishment according to law.” Thus, he can be sued criminally, civilly and administratively.
Criminally, he can be prosecuted for any violation of our penal laws, including the Anti-Graft Law (Republic Act 3019), the Code of Conduct for Public Officers (RA 6713) and the Revised Penal Code. Civilly, for forfeiture proceedings for alleged ill-gotten wealth, under RA 1379. And administratively, for disbarment under the Code of Professional Responsibility of lawyers.
The evidence obtained or learned during the impeachment trial can be used in these proceedings, provided that the right to due process is observed at all times. Much of this evidence can be obtained via the written waiver of his “right to confidentiality and secrecy of bank deposits” and his authorizing “all banking institutions to disclose to the public any and all bank documents pertaining to all peso and foreign currency accounts under my name.”
Corona’s sworn pledge contained in his statements of assets, liabilities and net worth authorized the Office of the Ombudsman to secure “such documents that show my assets, liabilities, net worth, business interests and financial connections, including those of my spouse and unmarried children below 18 years of age…”
Forfeiture of ill-gotten wealth. Under RA 1379, “resignation, dismissal or separation from office” shall not be a bar to a petition for the forfeiture of properties or assets manifestly disproportionate to the known lawful income of a public official. These “disproportionate” assets are presumed by law to be ill-gotten.
During the pendency of the impeachment trial, Ombudsman (OMB) Conchita Carpio Morales already took cognizance of and started initial inquiry into three complaints filed in her office against Corona. However, even if the OMB finds probable cause to institute forfeiture proceedings, she is barred by RA 1379 from filing them in court “within one year from any general election.”
Thus, while the OMB may continue her investigations, she cannot file in court any forfeiture suit till after the senatorial elections on May 13, 2013. Nonetheless, there appears to be no time limit to the filing of criminal cases. Prior, however, to filing criminal cases, the OMB needs to conduct preliminary investigations.
Using Corona’s waiver on his dollar deposits, Commissioner Kim Henares of the Bureau of Internal Revenue (BIR) asked banks for the former Chief Justice’s deposit records in connection with her inquiry into possible tax liabilities and criminal violations of tax laws. She stressed that her investigation was not related directly to the impeachment case because, whether convicted or not, Corona could be held liable for nonpayment or underpayment of taxes.
Three granite-knuckled ladies—Ombudsman Morales, Justice Secretary Leila de Lima and BIR Commissioner Henares—have the duty to assess the evidence obtained and determine whether to file and prosecute the cases. Eventually, the courts, mainly the Sandiganbayan and the Supreme Court, will adjudge the cases filed.
Retirement benefits and honors. Would Corona be entitled to retirement benefits and honors? Retirement benefits include the equivalent of one-month salary and allowance for every year of government service. In addition, retiring justices are usually entitled to monetize their accumulated vacation and sick leaves. Benefits can be doubled if the retirement is due to a disability.
The total sum representing the first five years of benefits are normally paid in advance in one lump sum. Thereafter, starting on the sixth year, retirees are paid the monthly salary and allowance of an incumbent. Moreover, should a qualified retiree predecease the spouse, the latter will receive during his or her lifetime the monthly benefits of the retiree.
Several laws provide for these retirement benefits. Whether these can be granted to those convicted after being impeached is subject to the high court’s discretion. However, Delsa Flores, the judiciary employee who was ousted for her failure to disclose her market stall in her SALN, was stripped of all retirement benefits and accrued leaves.
Normally, two ceremonies are held to honor Supreme Court retirees, one at the Court’s Session Hall where the retiree is toasted by his colleagues and given souvenirs (like a fountain pen, the Supreme Court flag, pictures, etc.), and another at a formal dinner where the retiree’s family, relatives and friends are invited.
Entitlement to these two fringe benefits is not automatic. On one occasion, the Supreme Court refused to grant them to a justice who chaired the committee that administered the bar examination but was penalized for not disclosing his close family relation to a bar examinee. On another, most of the justices snubbed the dinner for a member of the high court who was “held liable for grave misconduct for leaking a confidential internal document of the Court and fined P500,000,” the highest ever imposed in the history of the judiciary. After he retired, he was “indefinitely suspended from the practice of law.”
At bottom, the Supreme Court determines the grant of retirement benefits and honors.
* * *
Comments to chiefjusticepanganiban@hotmail.com

x x x."

Sunday, June 3, 2012

'Kasambahay Bill' soon a reality

'Kasambahay Bill' soon a reality

"x x x.


MANILA, Philippines - A law to guarantee the rights and benefits kasambahaysor household workers has been almost 15 years in the making.
Proponents of House Bill 6144 claim they are now closer to sealing the Domestic Workers Act of 2012 after it was approved on second reading at the House of Representatives last Wednesday, May 30.
The bill, commonly known as the "Kasambahay Bill," is now expected for 3rd and final reading on Monday, June 4.
The Kasambahay Bill was filed in Congress to provide standards and protection in the employment of domestic workers, now numbering more than 2 million across the country.
This data includes maids, cooks, nannies, drivers, helpers, gardeners, and other household employees, working in around 1.8 million households, based on the July 2012 Labor Force Survey.
"The sector is an important source of employment for women – 11.5% of employed women are domestic workers," the Samahan at Ugnayan ng Manggagawang Pantahanan sa Pilipinas (SUMAPI) said in a statement.
According to the Visayan Forum Foundation (VFF), existing laws and provisions in the Labor Code do not address the current situation of domestic workers, including wage rates, working hours, and benefits.
"The Batas Kasambahay recognizes that domestic workers deserve the same legal rights and protections that are enjoyed by other workers," the VFF said in its briefer on the bill.
The bill is expected to institute new minimum labor standards for domestic workers, covering minimum wage, regulation of work hours, leaves, social security, health insurance, and the provision of a written contract.
Fundamental rights and principles, based on the International Labor Organization's statutes, are also included in the bill, as well as protection for child domestic workers.
These provisions in the bill will help address issues such as various kinds of abuses, debt bondage and forced labor, non-payment of wages and social security, and human trafficking, the groups said.
"The final Bill is a product of intensive consultations, debates, and negotiations among different stakeholders. We believe that this version of the Bill is fair and would benefit domestic workers, their families, and employers," SUMAPI said. -Rappler.com

Corona guilty as charged | Inquirer Opinion

Corona guilty as charged | Inquirer Opinion

Excerpts from Senate Pres. Juan Ponce Enrile's summation and verdict in the impeachment trial of  Chief Justice Renato Corona.  Read the full text. Click the link above.


"x x x.
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Grossly misplaced
With all due respect, I believe that the respondent Chief Justice’s reliance on the absolute confidentiality accorded to foreign currency deposits under Section 8 of RA 6426 is grossly misplaced.
The Constitution, in Article XI, Sec. 17, provides that “A public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities and net worth. x x x”
Are we now to say that this constitutional command is limited to a public official’s assets or deposits in local currency? If so, would we not be saying, in effect, that the Constitution allows something less than a full, honest and complete disclosure?
It bears noting that the prescribed form of the SALN quite simply requires public officers and employees to declare their assets, real and personal, the latter to include cash and bank deposits, bonds, etc. It does not require the public officer or employee to indicate whether or not he or she has foreign currency notes or deposits. Neither does it require details such as account numbers, account names, bank identity nor any branch address. All that it requires is a declaration of the total amount of the funds deposited in any bank account or accounts maintained by the public official or employee concerned.
Surely, the Chief Justice knows the equivalent value in local currency of his foreign currency deposits to be able to declare the same as part of his assets, especially since the aggregate amount of these foreign currency deposits, by his own account, amounts to $2.4 million.
The nondisclosure of these deposits, in both local and foreign currency, would naturally result in a corresponding distortion of the Chief Justice’s real net worth.
Consistent with the position taken by this court in the case filed by Philippine Savings Bank before the Supreme Court last February, pursuant to which the Supreme Court issued a temporary restraining order, I maintain that the constitutional principle of public accountability overrides the absolute confidentiality of foreign currency deposits.
The provisions of RA 6426 cannot be interpreted as an exception to the unequivocal command and tenor of Article XI, Sec. 17, of the 1987 Constitution, and I regret that the highest magistrate of the land, no less, would think otherwise.
Section 8 of RA 6426 provides that except with the written permission of the depositor, “in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative or any other entity whether public or private.”
Illusory
The so-called conflict of laws between RA 6713 and RA 6426 is more illusory than real. Section 8 of RA 6426 merely prohibits the examination, inquiry or looking into a foreign currency deposit account by an entity or person other than the depositor himself. But there is nothing in RA 6426 which prohibits the depositor from making a declaration on his own of such foreign currency funds, especially in this case where the Constitution mandates the depositor who is a public officer to declare all assets under oath.
Some have raised the question: Why should the Chief Justice be held accountable for an offense which many, if not most others in government are guilty of, perhaps even more than he is? They say that hardly anyone declares his true net worth anyway.
Moral dilemma
Here lies what many have posited as a moral dilemma. I believe it is our duty to resolve this “dilemma” in favor of upholding the law and sound public policy. If we were to agree with the respondent that he was correct in not disclosing the value of his foreign currency deposits because they are absolutely confidential, can we ever expect any SALN to be filed by public officials from hereon to be more accurate and true than they are today?
I am not oblivious to the possible political repercussions of the final verdict we are called upon to render today. I am deeply concerned that the people may just so easily ignore, forget, if not completely miss out, the hard lessons we all must learn from this episode, instead of grow and mature as citizens of a democratic nation.
Those whose intentions and motivations may be farthest from the lofty ideals of truth and justice are wont to feast upon this man’s downfall should this Court render a guilty verdict.
I am equally aware of the tremendous pressure weighing heavily upon all the members of this court as we had to come to a decision on this case, one way or the other.
Sacred duty
But to render a just verdict according to my best lights and my own conscience is a sacred duty that I have sworn to perform.
As one who has been through many personal upheavals through all of my 88 years, I, too, have been judged, often unfairly and harshly. But I have constantly held that those who face the judgment of imperfect and fallible mortals like us have recourse to the judgment of history, and, ultimately, of God.
And so, with full trust that the Almighty will see us through the aftermath of this chapter in our nation’s history, I vote to hold the Chief Justice, Renato C. Corona, GUILTY as charged under Article II, Par. 2.3, and that his deliberate act of excluding substantial assets from his sworn SALN constitutes a culpable violation of the Constitution.
(Juan Ponce Enrile, Senate president, was the presiding officer of the impeachment court that found Chief Justice Renato Corona on May 29 guilty of culpable violation of the Constitution.)


x x x."

What we have learned from the Impeachment Trial - HINDSIGHT By F Sionil Jose - The Philippine Star » Lifestyle Features » Sunday Life

What we have learned from the Impeachment Trial - HINDSIGHT By F Sionil Jose - The Philippine Star » Lifestyle Features » Sunday Life

F. Sionil Jose on LEGAL REFORM.


"x x x.


It is also true in the Philippines  the fact that so many young people aspire to be lawyers because lawyering is the key to the good life. We saw in the televised proceedings how adeptly lawyers go into semantic contortions  exemplified by Senator Miriam Santiago, how they buttress their arguments with the finest frills of the law, interpreting these laws in so many obtuse ways that befuddle those of us untrained in legalese! They seem to forget that the foundation of the law, and law making is ethics. It can be as clear as sunrise but can easily be clouded and shrouded by legalese. Here is that hoary question: it may be legal, but is it moral? Our lawyers and judges should always be guided by this primal question.


Aware as we are of the underside of lawyering and the over supply of lawyers, all law schools must close for five years and reopen but a third of the schools and limit their enrollment as well. All those who pass the bar should work as Public Defendersa kind of useful internship  before they go into private practise. We should also have a public school for those who aspire to be judges.

It is debatable  but Congress should study the feasibility of having justices of the Court of Appeals and the Supreme Court elected  not appointed.

It now goes without saying that reform must be made immediately not just in the Supreme Court but in the entire justice system, which includes the Department of Justice and the National Police. The targets:

Hasten the decision making process; no court case should languish for more than two years. This will mean less money for lawyers but more and swifter justice for the people.

Promote transparency.

Our educational system must raise more teachers, particularly those in science and technology with an emphasis on the humanities, considering that it is only literature, which teaches us ethics.

x x x."

Choosing a chief justice

Choosing a chief justice

"x x x.


Marites Dañguilan VitugMarites Dañguilan VitugThe impeachment trial has done us a big favor. It has made it easy to identify the qualities the next chief justice should possess.

We can neatly sum it up in a sentence: it’s everything Renato Corona isn’t. 

Let us count the ways. 

One. To borrow from Rep Rodolfo Fariñas, someone who does not makepalusot. A person who does not weasel out of a duty or obligation. A person who doesn’t spin lies till he gets caught in a web of his making. 

Two. Someone who is truly honest and does not have a sense of entitlement. This person doesn’t reimburse personal expenses, from a barong tagalong to expensive meals in high-end restaurants. Neither does he or she accept favors such as a platinum card from an airline company, or an honorary membership in an exclusive country club. 

Three. A person who feels accountable to the people and believes in transparency. Thus, this person will disclose his or her Statement of Assets, Liabilities, and Net Worth, and is unafraid to issue a waiver to the Ombudsman to probe his or her real worth—not as a last-minute calculated move but as a standard practice. 

Four. On the institutional level, a leader who will open up the financial books of the Supreme Court for scrutiny, including the Judiciary Development Fund and the Special Allowances for Justices, both of which come from legal collections. 

Five. A leader who will reform the judiciary and use loans meant for reform projects productively and not for PR stuff like goodwill basketball games with another country’s Supreme Court staff and to hire an agency to monitor media coverage of the Court. 

Six. Someone who decides cases fairly and with fidelity to the Constitution and not out of loyalty to the appointing power nor in exchange for favors given by vested interests. Coupled with this, someone who will not preside over dizzying flip-flops of cases and treat letters from a prominent lawyer with utmost urgency and reverence.

Seven. A person who doesn’t use his or her position to benefit oneself and his family, like influencing the courts to decide in favor of a family business. 

Eight. A person who avoids getting entangled in conflict-of-interest situations like having a family member appointed to juicy posts by the President. 

Nine. Someone who says no to shady characters, beginning with those who are too willing to lend him or her multi-million peso SUVs. 

Ten. Someone who is not insecure about his or her academic credentials so he or she doesn’t need to invent honors and attain a doctorate even without the proper requirements. 

Hard-fought victory

President Aquino faces a golden opportunity to reshape the Supreme Court and the rest of the judiciary by appointing a chief justice who will not tolerate corruption, speed up resolution of cases, and open up the most opaque institution in the country.

It need not take a decade to dispense justice. The next chief justice should see to this.
Disclosure of information should be the rule and not the exception. For one, the public has a right to know how the Court spends its budget, savings, and collections.

We need to know the caseloads of each justice, their backlogs, and the length of time it takes them to resolve cases. 

We need to have access, through the Court’s website, to information on pending public-interest cases, transcripts of oral arguments, and why justices take no part in certain cases. Some justices simply write “No part” or “No part for personal reasons” or “No part because of relations to party” when they sign decisions. Apparently, these justices do not feel accountable thus they do not see the need to explain. 

Today, as many heave a collective sigh of relief after going through more than 4 months of an impeachment trial that divided the nation and caused us pain, we can only hope that the President will not squander this hard-fought moment. This is a big win for his anti-corruption program and call for transparency. 

Choosing a chief justice based on politics and not on the principles and ideals the President holds dear will negate this momentous victory. - Rappler.com
Click the links below for more related stories on the selection process for the new Chief Justice.