Public funds and freedom of speech - FindLaw | Cases and Codes

see - FindLaw | Cases and Codes


THE RECENT AMERICAN CASE BELOW WILL ONE DAY SOON BECOME RELEVANT TO PHILIPPINE JURISPRUDENCE CONSIDERING THE FACT THAT IN MANY RECENT PHILIPPINE SOCIAL LAWS AFFECTING HEALTHCARE, FAMILY PLANNING, AND THE LIKE, THE CATHOLIC CHURCH HAS BEEN ACTIVE IN OPPOSING THE USE OF PUBLIC FUNDS TO FINANCE ACTIVITIES OR PROGRAMS THAT IT DEEMS TO BE IMMORAL.



"x x x.

In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U. S. C. §7601 et seq., Congress has authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to combat HIV/AIDS worldwide. The Act imposes two related conditions: (1) No funds "may be used to promote or advocate the legalization or practice of prostitution," §7631(e); and (2) no funds may be used by an organization "that does not have a policy explicitly opposing prostitution," §7631(f). To enforce the second condition, known as the Policy Requirement, the Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) require funding recipients to agree in their award documents that they oppose prostitution.

          Respondents, recipients of Leadership Act funds who wish to remain neutral on prostitution, sought a declaratory judgment that the Policy Requirement violates their First Amendment rights. The District Court issued a preliminary injunction, barring the Government from cutting off respondents' Leadership Act funding during the litigation or from otherwise taking action based on their privately funded speech. The Second Circuit affirmed, concluding that the Policy Requirement, as implemented by the agencies, violated respondents' freedom of speech.

Held: The Policy Requirement violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. Pp. 6-15.

     (a) The Policy Requirement mandates that recipients of federal funds explicitly agree with the Government's policy to oppose prostitution. The First Amendment, however, "prohibits the government from telling people what they must say." Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 61. As a direct regulation, the Policy Requirement would plainly violate the First Amendment. The question is whether the Government may nonetheless impose that requirement as a condition of federal funding. Pp. 6-7.

     (b) The Spending Clause grants Congress broad discretion to fund private programs or activities for the "general Welfare," Art. I, §8, cl. 1, including authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Rust v. Sullivan, 500 U. S. 173, 195, n. 4. As a general matter, if a party objects to those limits, its recourse is to decline the funds. In some cases, however, a funding condition can result in an unconstitutional burden on First Amendment rights. The distinction that has emerged from this Court's cases is between conditions that define the limits of the Government spending program--those that specify the activities Congress wants to subsidize--and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself.

     Rust illustrates the distinction. In that case, the Court considered Title X of the Public Health Service Act, which authorized grants to health-care organizations offering family planning services, but prohibited federal funds from being "used in programs where abortion is a method of family planning." 500 U. S., at 178. To enforce the provision, HHS regulations barred Title X projects from advocating abortion and required grantees to keep their Title X projects separate from their other projects. The regulations were valid, the Court explained, because they governed only the scope of the grantee's Title X projects, leaving the grantee free to engage in abortion advocacy through programs that were independent from its Title X projects. Because the regulations did not prohibit speech "outside the scope of the federally funded program," they did not run afoul of the First Amendment. Id., at 197. Pp. 7-11.

     (c) The distinction between conditions that define a federal program and those that reach outside it is not always self-evident, but the Court is confident that the Policy Requirement falls on the unconstitutional side of the line. To begin, the Leadership Act's other funding condition, which prohibits Leadership Act funds from being used "to promote or advocate the legalization or practice of prostitution or sex trafficking," §7631(e), ensures that federal funds will not be used for prohibited purposes. The Policy Requirement thus must be doing something more--and it is. By demanding that funding recipients adopt and espouse, as their own, the Government's view on an issue of public concern, the Policy Requirement by its very nature affects "protected conduct outside the scope of the federally funded program." Rust, supra, at 197. A recipient cannot avow the belief dictated by the condition when spending Leadership Act funds, and assert a contrary belief when participating in activities on its own time and dime.

     The Government suggests that if funding recipients could promote or condone prostitution using private funds, "it would undermine the government's program and confuse its message opposing prostitution." Brief for Petitioners 37. But the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government's policy of eradicating prostitution. That condition on funding violates the First Amendment. Pp. 11-15.

651 F. 3d 218, affirmed.

     Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Alito, andSotomayor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Kagan, J., took no part in the consideration or decision of the case.

x x x."

SEC on foreign ownership limits: A healthy compromise? | Inquirer Business

see - SEC on foreign ownership limits: A healthy compromise? | Inquirer Business


"x x x.

On 20 May 2013, after more than six months of public hearings and study, the Securities and Exchange Commission issued a memorandum (SEC Memo No. 8-2013). It provides that the required percentage of Filipino ownership shall be applied to both (a) the total number of outstanding shares of stock entitled to vote in the election of directors; and, (b) the total number of outstanding shares of stocks, whether or not entitled to vote in the election of directors.

Note that, rather than merely complying with the dispositive portion of the Gamboa decisions which it could have chosen to do, the SEC added a second layer of safeguard to ensure compliance with the ownership requirements.

Letter (b) of Section 2 of SEC Memo No. 8-2013 is a bold but intelligent and practical interpretation of the Supreme Court’s pronouncement in Gamboa in the 8 October 2012 resolution.

In keeping with the spirit of Gamboa, the SEC is effectively saying that the ownership restriction must also affect the non-voting preferred shares as they, even if denied the right to vote in the election of directors, are entitled to vote on certain fundamental corporate matters, such as: amendment of articles of incorporation; increase and decrease of capital stock; incurring, creating or increasing bonded indebtedness; sale, lease, mortgage or other disposition of substantially all corporate assets; investment of funds in another business or corporation or for a purpose other than that which the corporation was organized; adoption, amendment or repeal of by-laws; merger and consolidation; and, dissolution of corporation.

x x x."

Firing a Client

see - Firing a Client


FILIPINO TRIAL LAWYERS WILL FIND THIS ARTICLE USEFUL IN THEIR LAW PRACTICE. RECOMMENDED READING.



"X X X.

What? Why would I fire a client?

Yes, there are situations where you will need to terminate your representation/withdraw from representation a/k/a “firing” a client. To many new lawyers, that is a foreign concept. Most new lawyers cannot get past the step of “I don’t have enough clients, why would I fire one?”

Trust me, you will fire a client sooner than you might think. It will be the best non-money you didn’t never make.

If you are effective at client intake, you should spot a problem client from a mile away. Unfortunately, not every problem client is that obvious. Those are usually the most problematic of problem clients.

As you read this, keep in mind that the majority of my practice is Plaintiff side contingency work. That means I spend a fair amount of time investigating cases and claims before I actually bring them. It also means it can be easier to terminate my representation, compared to once a case is filed, when there are a host of things to consider.

Here are the most common reasons why I consider, or ultimately end up firing a client.

Missed appointments/does not return calls or e-mails

People get sick all the time. People have sudden family situations and/or emergencies. People forget about appointments (even lawyers).

But there’s a difference between one sudden sickness/emergency/memory lapse and a pattern. I’m pretty good about giving clients a free pass for round one. But the standard of review goes way up on round two. My cases are on contingency and in federal court. If my client flakes out or disappears, I just wasted a whole bunch of time (that I’m not getting paid for) and the court is going to get really, really mad at me (and potentially sanction me).

If a client can’t find the time to meet with me (let alone talk to me), there’s no way I’m putting my license/reputation/time on the line for them. It’s that simple.

If my client does not return a phone call or e-mail, I usually follow up the same day (using the other communication method). If they still do not respond, follow up communications become more terse and direct. After that, I usually send a letter via e-mail and mail with some variation of “if you don’t contact me, I will terminate my representation.”

Frankly, if it gets to that point, the client needs to have a really good reason for ignoring me. The few clients that I have continued to represent in these situations usually end up disappearing again.

Changing stories

This is a tough one, because memories fade over time. It is not unusual for the details of my client’s stories to change as I investigate the case. There’s a difference, however, between the details changing and the entire story changing. You would also be well-advised to understand that client’s tell you their version of the story. Not the story. Their version of the story. When you start pulling the details, the story will change.

I wish I could quantify that, because sometimes details are big details, and sometimes they are little details. There’s also a huge difference between saying “this is exactly what happened” and then saying “I never said that” versus saying “here’s what I remember” and “you know, I got the order of events wrong.”

As noted above, this is where client intake is critical. My initial meetings are pretty long. To the extent possible, I lock in client memories (because I know they fade). They are instructed to go home and write a narrative as well. When I start to see all sorts on inconsistencies, red flags go up.

Yes, there are situations where everything changes. Those cases end before they start. But there are plenty of cases where it’s a judgment call for me.

Destroys evidence or it “disappears.” 

Not only is this a red flag, it can get your client (and/or you) sanctioned by the court for potentially destroying evidence.

Let’s talk about it on the front end for now. Client calls and says a debt collector left an awful voicemail for them. Client comes in and tells you they accidentally erased the voicemail. Or someone else erased it. Maybe it was an accident. Maybe.

Maybe the client took pictures or wrote down notes about the event that prompted a phone call to you. Maybe those disappeared between the time they called you (at which point you told them to save everything) and when they came in.

You want to really careful moving forward. You’ve got a client that does not follow instructions (red flag), has lowered credibility (red flag), and may have destroyed evidence (red flag/sanctions).

Disclaimer: I’ve had more than one client that forgot to bring notes/recordings/evidence to the initial meeting, but got it to me at a later date. That happens. But when it never shows up or magically disappears, hold your horses.

Your spidey-sense tingles

The absolute worst is when you have a solid case, with a solid client and solid evidence, but something is just not right. I just went through one of these non-cases. Everything was perfect: too perfect. Lesson learned: there is no perfect case.

Usually it’s something minor that raises an alarm. Sometimes it’s a false alarm, but sometimes it’s just the tip of the iceberg. I’ve been through that enough times to know that when something does not seem right, it’s time to dig deeper. There are plenty of reasons why you want to dig deeper, but let’s focus on two of them.

One, Rule 11 requires it. There’s no “well, I didn’t really want to look into that” special comment that protects you. Two, do you really want to move forward with a case if you have doubts? Doubt will grow exponentially as the case moves forward. I don’t know about you, but I hate surprises. More often than not (if you’ve done a good job with intake), your suspicions will reveal: nothing. Or maybe something very minor that will not derail the case.

The bottom line is regardless of when your spidey sense tingles, you need to stop what you are doing and take a closer look. You will save yourself some headaches (among other things) down the road.

Payment issues

About 75% of my practice is contingency based, and the remaining 25% falls into two categories: flat fee and retainer—with most of those being flat fee cases/services. In the vast majority of my retainer clients, I do not bill more than the original retainer (that’s on purpose). The bottom line is that I rarely have to request money from an existing client (also on purpose).

The closest I’ve come to an issue in this area is when a client forgets their checkbook when they sign a retainer. But all of those clients either hand delivered or mailed a check the next day. The gist of all of this is that one way to avoid this issue is to never let it become an issue. I either need a retainer or a flat fee before I do any work.

When a potential client balks at my fee, they do not become an existing client. If an individual is questioning my fees before I do anything, that is a bad indication of what will happen down the road. I know that because I’ve experienced it.

What scares me is the stories I hear from other young attorneys about “I’m really busy, but my clients are not paying me.” What’s really scary is when they say “this client actually hasn’t paid my bill for the last ____ months.” If your client has not paid you for months, they should not be your client. Chances are, that tab is going to get bigger and bigger—which will make it harder and harder to pay.

There are plenty of reasons why you may be willing to wait or forgive a late bill. But when there is a pattern of late payment/under payment/non-payment, then you need to step back and reevaluate the client. Some clients may have a great reason and a good heart. Others could just be taking advantage of you. You are the best position to evaluate that, but please understand that bad clients exist, and not everyone really wants to pay your bill.

Check the rules and your retainer

Before you brazenly terminate your representation, take a deep breath. There are lots of things you need to check first, otherwise you’ll find yourself captain of the titanic: destination the land of malpractice with a long stop at the port of office professional responsibility. You need to check your the rules of civil procedure, local rules, general practice rules, and rules of professional responsibility. And here’s a really good tip: if you have questions or concerns, ask a trusted attorney with experience or call your local office of professional responsibility.

Figure out when you should or can withdraw. Start with Rule 1.16 of the Model Rules of Professional Conduct. Some situations are “should withdraw” (you are not mentally or physically capable, or the client fired you) and some situations are “can withdraw” (client has made the representation unreasonably difficult, lawyer thinks client is using lawyer to engage in fraud).

Assuming you have a valid (and acceptable) reason, your jurisdiction may not allow withdrawal if it will cause prejudice to your client. For example, you try and withdraw the day before a hearing (or trial). Whether you are in state or federal court can make an enormous difference as well. In Minnesota, assuming you have a valid reason, you can file a notice of withdrawal state court. In federal court, if you do not have substitute counsel, you have to move the court to withdraw—and the standard is pretty high.

If you are able to withdraw, you also need to take reasonable steps to protect your client’s interests. Such as providing reasonable notice, returning their file, and returning any funds or providing a refund for any unperformed services.

Speaking of refunds—make sure you review your retainer agreement. Even if you were hired on a flat rate, many jurisdictions (like mine) require you refund all or a portion of the fee for any services that were not provided. If you were hired on a retainer, in case it was not obvious, you need to refund the remaining funds in your trust account. And here’s a friendly tip: don’t charge your client for writing a letter terminating your representation.

Anticipate it will happen again

I wish I could say that I’ve only fired one client. I’m pretty sure I’ve fired more than one client this month (I’m writing this on June 7). You could make the argument that I did a poor job with client intake. There’s probably some merit to that, but clients can appear (and check out) as great clients during the initial meeting and turn into potential nightmares by the second meeting (see above).

The bottom line is that you should anticipate there will be situations where you will need to pull the plug. The majority of my cases are Plaintiff side contingency cases. In distilled terms, my retainer says at the very top “you are hiring me to pursue a potential claim against a naughty debt collector.” Right below that it says:

“Lawsuit may not be appropriate. Until I complete my investigation of your case, I do not know if a lawsuit is appropriate. I may withdraw from your case if I believe a lawsuit is not appropriate.”

There’s another paragraph on destroying evidence—advising clients on all the bad things that can happen if they do that—including my withdrawal as their attorney. And of course, there’s a paragraph dedicated to explaining when I am allowed to withdraw.

I love my job and I love my clients, but sometimes you need to pull the plug. Make sure you are prepared for it next time.

X X X."

Disqualified: SC junks Jalosjos appeal. Next to fall Erap? -

see - Disqualified: SC junks Jalosjos appeal


"x x x.

CONVICTED RAPIST. The Supreme Court dismisses the appeal of Romeo Jalosjos. File photo by Rappler/Paterno Esmaquel II

MANILA, Philippines – The Supreme Court (SC) dismissed on Tuesday, June 18, the petition of former Zamboanga del Norte Rep and convicted rapist Romeo Jalosjos to reverse a resolution of the Commission on Elections (COMELEC) that disqualified him from running for mayor last May.

In a 15-0 vote, SC found Jalosjos’ appeal “untenable” when he cited Article 30 of the Revised Penal Code (RPC) as “partially amended” by Section 40 (a) of the Local Government Code (LGC).

In its decision, the High Court explained that Article 30 of the Code provides “that the penalties of perpetual or temporary absolute disqualification carries with it the deprivation of the right to vote in any election for any popular office or to be elected to such office.”

“This is based on the presumption that one who is rendered infamous by conviction of a felony or other base offense indicative of moral turpitude, is unfit to hold public office, as the same partakes of the nature of a privilege which the State grants only to such classes of persons which are most likely to exercise it for the common good,” the Court explained.

The Court added that Section 40 of the LGC, applicable to local elective candidates, provides that “those sentenced to final judgment for an offense involving moral turpitude or for an offense punishable by one or more of imprisonment within two years after serving sentence are disqualified.”

The High Court further cited Article 41 of the RPC, which states that “the accessory penalty of disqualification remains even though one is pardoned as to the principal penalty unless the accessory penalty shall have been so expressly remitted in the pardon.”

In Jalosjos’ case, the SC decided that the “accessory penalty had not been expressly remitted in the Order of Commutation or by any subsequent pardon and, as such, petitioner’s disqualification to run for elective office is deemed to subsist.”

Jalosjos was convicted in 1997 for raping an 11-year-old girl. In 2002, the Supreme Court upheld his conviction with finality.

The Comelec also ruled in September 2012 that Jalosjos couldn’t register as a new voter because he's a convict.

In the May elections, the ruling Liberal Party’s bet, Maria Isabelle Climaco Salazar won as mayor of Zamboanga City. – Rappler.com

x x x."

Silence Isn't Always Golden, Supreme Ct. Rules - FindLaw Blotter

see - Silence Isn't Always Golden, Supreme Ct. Rules - FindLaw Blotter


Considering that the PHL and the USA have the same constitutional rule on THE RIGHT TO REMAIN SILENT, Filipinos would find the article below relevant.


"x x x.

Suspects who are not in custody, and thus not entitled to Miranda warnings, can have their silence used against them unless they expressly invoke their Fifth Amendment right to remain silent, the U.S. Supreme Court has held.

In a 5-4 decision handed down Monday, the Court in Salinas v. Texas determined that a suspect's silence after being asked a question during a voluntary police interview can be used against him during his criminal trial, reports the Associated Press.

Though Miranda shields defendants from the dangers of police interrogation, a suspect's protections are weaker when he is not in custody.

Not In Custody, No Miranda

In Salinas, the Court noted that a suspect does not have to be read his Miranda rightswhen he is not in custody.

In situations prior to custody and questioning by police, there is much less danger of police coercion, so a suspect's pre-Miranda silence is not automatically protected.

That means a suspect who volunteers to answer questions, then stops and decides to remain silent, must invoke his Fifth Amendment right to remain silent; if not, that silence can potentially be used against him.

Express Invocation

There are no magic words that a suspect needs to use in order to invoke his right to silence, but something needs to be said.

In Salinas, the defendant freely answered police questions about a murder investigation, but then fell silent when asked if his shotgun would match shells found at the murder scene, USA Today reports.

Without more than remaining mute, the Supreme Court plurality found that Salinas'silence was ambiguous, and that he could have been thinking of a way to lie just as easily as he may have been intending to invoke his rights.

Silence Used in Court

Generally, a defendant cannot have his silence as a trial witness used against him, but this does not apply fully to his choices to remain silent before trial.

A prosecutor, under Salinas, is free to let the jury consider the fact that, prior to arrest or custody, the defendant answered some questions but chose to remain silent for others.

Remember, if you are asked to come in for police questioning, it isn't an arrest, and noMiranda warnings are needed to have any voluntary statements, or even silences, admitted as evidence against you. For legal advice about what to do in your specific situation, you may want to consult an experienced criminal defense lawyer near you.

Related Resources:

• Salinas v. Texas (U.S. Supreme Court)
• What Do Cops Have to Say in a Miranda Warning? (FindLaw's Blotter)
• What to Do If Police Stop You on the Street (FindLaw's Blotter)
• FAQs: Police Interrogations (FindLaw) x x x."

US legal education reform; Two-Year Law School? Don’t Rush the Paper Chase. - Bloomberg

see - Two-Year Law School? Don’t Rush the Paper Chase. - Bloomberg


Filipino law deans, the PHL Board of Legal education, and the SC might want to read this article and get a few hints on how to reform PHL legal education.


"x x x.

Drastic Changes

Now that vision is under attack. What’s in the air -- among prominent legal educators and in numerous law schools around the country -- is the idea that the U.S. can’t afford the old three-year curriculum with its elective courses and interdisciplinary focus.

As the American Bar Association reassesses the nature of legal education, many are calling for drastic changes in the way lawyers are trained. One argument is that we need to offer a stripped-down, two-year degree aimed narrowly at legal practice. This would eliminate what Daniel B. Rodriguez, dean of the Northwestern University law school, and Samuel Estreicher, a New York University law-school professor, amazingly have called “the third year, those famous semesters in which, as the saying goes, law schools ‘bore you to death.’” Arizona recently became the first state to allow students to take the bar exam during their third year.

Electives typically are taken in the second and third years. Given the general courses that an accredited legal education must include, dropping the third year offers no time for interdisciplinary electives. The new wisdom is that this would be no loss. NYU has already made a third academic year optional, allowing students to substitute practical apprenticeships or foreign study for what they call a mere “hodgepodge of electives.” Well-known legal commentator David Lat has called for a return to the old apprenticeship model after the second year.

This zeal for change is inspired partly by rising fears about costs and student debt, a legitimate concern exacerbated by the shrinking market for law-school graduates. Part of the debt problem isn’t the fault of law schools: The cost of undergraduate education, particularly at state institutions, has risen rapidly. Students arrive at law school already shackled by debt in a way that rarely happened previously.

Because a law degree was thought to lead immediately to a remunerative career, law schools have been slow to make the commitment to financial aid that undergraduate institutions typically aspire to make. For some years, loan forgiveness and outright scholarships have helped law students who elect a career in public service. But other aid was largely absent until very recently.

Financial Aid

All that is changing; law school deans today work hard (and often successfully) to raise money for scholarship aid. We believe the reason there is no trend toward a three-year undergraduate degree is that wise administrators have long been aware of the problem of cost and are addressing it creatively through aid. Law schools are behind the curve, and they must catch up, rather than diluting the quality of the education they offer.

That conclusion assumes the traditional model has merit, and it is this idea that the critics have challenged. Denigration of the third year is caused not only by economic panic, but also by a forgetfulness of Freund’s idea of a legal practice deepened, enriched and made independent of social control by the scientific study of society, or as Harper said, “the whole field of man as a social being.”

The general idea of the Freund model is that lawyers are influential members of a complicated and often troubled society. They need all the help they can get if they are to have enough understanding of social forces to operate effectively, rather than just deferentially or by rote. One size does not fit all, and there should be no list of interdisciplinary courses required of all students.

A perusal of examples will begin to show what such courses can offer the future practitioner. A student at Chicago (similar to other law schools) might take a class with a leading criminologist, studying philosophical theories of punishment and the history of prisons -- and then visit the maximum-security prison at Joliet, Illinois, the only surviving North American exemplar of Jeremy Bentham’s famous “panopticon” (where everyone is watched all the time). A future lawyer would gain an invaluable set of tools, philosophical and historical, for thinking independently and critically about a broken system of imprisonment.

Interest Groups

Another student might select Public Choice with a leading legal economist, learning how interest groups interact and how attractive schemes are often derailed by paradoxical and counterproductive interactions of interests that economists have studied in depth. Such a student would have tools for thinking critically about the legislative process and interest-group advocacy.

Still others might take a seminar on Distribution, Taxes, and Social Justice, co-taught by a philosopher who works on justice (one of the authors) and a law professor who is a tax-policy expert. Their seminar juxtaposes philosophical accounts of basic justice with the literature on optimal tax policy. Such students are equipped to think broadly about taxation, which, after all, is supposed to aim for social justice.

These are just a few examples of the Freund idea at work, and students typically choose multiple electives that align with their career plans. Some of these students will go into government; others will work for nongovernmental organizations.

But lawyers who join firms also need to understand how society works if they aspire to be independent thoughtful leaders of their chosen profession, rather than passive followers of custom. In the life of the firm, a deferential model of lawyering (doing it because that is how it has been done) will further erode professional standards.

Ernst Freund wanted wide-awake lawyering, and he was right to say that it requires rigorous and scientific thinking about social processes. If we heedlessly jettison that vision, our whole society will be worse off.

(Martha C. Nussbaum is Ernst Freund distinguished service professor of law and ethics at the University of Chicago. Charles Wolf is a University of Chicago law-school graduate and is a shareholder at Vedder Price PC in Chicago, where he has practiced employee-benefits law since 1975.)

To contact the writers of this article: Martha Nussbaum atmartha_nussbaum@law.uchicago.edu and Charles Wolf at cwolf@vedderprice.com.

x x x."

Philippines health law tests power of Catholic church - The Washington Post

see - Philippines health law tests power of Catholic church - The Washington Post


"x x x.

MANILA — In what is expected to mark a pivotal moment in this rapidly developing but still impoverished nation, the Supreme Court of the Philippines will weigh next month the constitutionality of a new reproductive-health law that pits the entrenched power of the Roman Catholic establishment against a rising tide of modernization and economic aspiration.

The measure, which was signed into law in December after a bitter 14-year battle between women’s rights advocates and Catholic bishops, would fund access to contraceptives for the nation’s poorest women. The key question before the court is whether it violates a 1987 constitutional guarantee of protection for “the life of the unborn from conception.”

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Catholic bishops in this profoundly Catholic country of 96 million argue that any form of contraception other than Vatican-approved “natural” methods or abstinence is tantamount to abortion. They also warn that the RH bill, as it is called here, is the first step down a slippery slope that will inevitably lead to the legalization of abortion, euthanasia, divorce and same-sex marriage.

The law has been backed by a loose alliance of women’s groups, medical professionals, academics, business leaders, celebrities and a few progressive Catholic organizations. It also received key support from President Benigno Aquino III, who ignored threats of excommunication to actively campaign for its approval.

Archbishop Ramon Arguelles, a vice-chairman of the Catholic Bishops’ Conference of the Philippines, said that Aquino’s support for the RH bill was a declaration of “open war” on the church.

It is not a war the bishops intend to lose. Long accustomed to a position of unquestioned power and privilege in the Philippines, the church hierarchy fears that its moral authority is eroding in the face of dynamic economic growth — the Philippines has just replaced China as the fastest growing economy in the region — coupled with the deepening frustration of the many millions who remain mired in poverty.

Although 80 percent of the population here identifies itself as Catholic, polls have consistently indicated that slightly more than 70 percent support the reproductive health law.

“For the Catholic Church here and for the Vatican, this is a real struggle. This is a country they don’t want to lose. We are the last bastion of Catholicism in the Old World colonies,” said Sylvia Estrada-Claudio, director of the University of the Philippines Center for Women’s Studies and a longtime activist for reproductive health.

x x x."

Legal ethics – an oxymoron?

see - Legal ethics – an oxymoron?


A law dean (Fr. Ranhilio Aquino, J.D.), who is not a trial lawyer, just to praise his father (retired Court of Appeals Assoc. Justice Hilarion Aquino) in his column, had to go to the extent of denigrating the entire legal profession of the Philippines to be noticed and be read. I find it in bad taste.



"x x x.

That is exactly how one blogger put it: Legal ethics is an oxymoron.  It was not so much a swipe at the law as at lawyers, and the fact is that in the Philippines, as well as in other jurisdictions as well, they suffer a trust-deficit.  People it seems trust embalmers more than they trust lawyers.  This is no laughing matter, at least not for those who care passionately about serving the ends of justice.

It was with this concern that my father, Justice Hilarion Aquino, commenced his lecture as the Most Outstanding Professorial Lecturer (2013), a recognition given him by the Founding Chancellor Ameurfina A. Melencio-Herrera Foundation and the Philippine Judicial Academy.  Last year, the distinction went to Justice Adolf Azcuna, now chancellor of the Academy, who delivered a lecture on the Writ of Amparo (the rule that, in many ways, he authored) and how it has thus far figured in the Philippine legal system.  My dad’s paper and lecture were titled “Legal and Judicial Ethics Revisited: Problems and Prospects.”  Justice Ameurfina Herrera was not only the first chancellor of the Academy, she also so set her seal on it for all time, her brand of leadership and her passion for excellence.  Wishing their mother’s legacy perpetuated, her children set up the Foundation that aimed at assisting the Judicial Academy in promoting the authorship and delivery of learned papers on the subjects with which the Academy is concerned.

Dad’s first thesis was that even if there is a growing trend to consider the ethics of the legal profession as the conventions developed by lawyers in the practice of law, one had to recognize that, inscribed in legal and judicial ethics, is morality.  The concept of justice is, after all, a moral concept.  For the lawyer this demanded the constant advocacy not only of a client’s cause, but of justice.  It meant, in the concrete, that it would be unethical for the lawyer to espouse a position or advance the adoption of a submission that violated the demands of justice.  Citing the code of professional conduct of the Spanish College of Lawyers, he addressed the dilemma of having to choose between a client’s interests and the demands of justice — and he maintained the position that it was never justified to betray the cause of justice because of loyalty to one’s client.  Judicially, this also demanded of the judge the creative interpretation of the law that, without setting the letter of the law aside, nevertheless allowed the court to do justice.  As for the well-worn Roman aphorism “Dura lex sed lex”, dad had this to say: “One cannot quiet the remorse of conscience by citing a Latin maxim.”  He recalled the revered Justice JBL Reyes’ mantra: “No master but the law, no guide but conscience, no goal but justice.”

He then went on to deal with the ethics of prosecutorial discretion, urging prosecutors to adopt American standards: a prosecutor has no business filing the Information against an accused in court when he does not have on hand the evidence sufficient to warrant a conviction.  True, indeed, that all that is required by the rules so that the Information may be filed is ‘probable cause’ but as prosecutors’ guides in the United States almost unanimously maintain:  It is immoral for a prosecutor to file the Information unless he is convinced of the guilt of the accused and has the evidence to establish it.  If all he has is probable cause, then does he hope thereby to fish for evidence sufficient to convict while the trial is in progress and the accused is already subject to the ordeal of a trial?  In this respect, dad found the Rule on the Judicial Affidavit apropos: the judicial affidavits — that constitute the testimony on direct examination — of all the witnesses that the prosecution can muster in its arsenal of evidence must be submitted at the commencement of the proceedings or forever be excluded.

Boldly he advocated the adoption of “general welfare” as a basis for a judgment.  It was not enough, he maintained, for a judgment to rest on facts and law.  It had to consider general welfare as well.  A decision that may be legally correct but disastrous when reckoned against the economic interests of the public and the State would still be a disaster of a decision, no matter its punctilious observance of the letter of the law.  Once more the Civil Code of Spain provided a lead: the law is to be interpreted also in the light of social contexts!

It was these positions that Chief Justice Maria Lourdes Sereno, who was in attendance, acknowledged as daring, bold, far-reaching and intrepid.  She personally expressed to dad her concurrence with his positions.

Quite interestingly, as dad delivered his lecture at the Global Learning Center of the Philippine Judicial Academy at Tagaytay, he was seen, heard, and his powerpoint presentation received simultaneously at the Session Hall of the Supreme Court at Padre Faura.  Mommy, my brother, my sister, my nephews and I were in attendance as well — and we could only thank God for having kept daddy healthy in body (recent health issues notwithstanding) and keen in thought. It was as gratifying for us to see how many continue to revere and respect him as a mentor or a colleague, and to cherish and love him as a friend!

rannie_aquino@sanbeda.edu.ph

rannie_aquino@csu.edu.ph

rannie_aquino@yahoo.com

x x x."

Inventory of evidence in court’s custody sought | Inquirer News

see - Inventory of evidence in court’s custody sought | Inquirer News


The article below describes a common problem in many trial courts in the country - mismanagement of the custody and improper safekeeping of guns and other autoptic evidence in the possession of the courts.



"x x x.

THE Cebu City chapter of the Integrated Bar of the Philippines (IBP) called for a thorough inventory of all items in court custody to determine if any of these were lost or stolen.

“We need to know if it’s also happening to other courts. The loss of 13 firearms is alarming,” said IBP Cebu City President Lawyer Mae Elaine Bathan on a phone interview yesterday.

The 13 firearms were supposed to be held in custody of Branch 4 of the Municipal Trial Court in Cities (MTCC) of dismissed Judge Rosabella Mondragon Tormis.

Bathan told Cebu Daily News yesterday that she doesn’t want to single out Tormis because other courts may have the same predicament.

The loss of the 13 firearms was discovered after acting clerk of court Lyssette Yuson received a motion filed by a litigant last June 6 asking for the return of his firearm that was used as evidence in a case.

When Yuson went to the judge’s chamber to recover the firearm, she found out that the cabinet was empty.

About 10 of the 13 firearms were used as evidence in cases that were dismissed or ended in the acquittal of the accused.

The remaining three firearms are used as evidence in pending cases.

Firearms used from cases dismissed can be returned to its owners as long as they are licensed.

Otherwise, it would be turned over to the custody of the Firearms Explosives Security Agencies and Guard Supervisory Section (FESAGGS).

The missing firearms consisted of 10 .38 revolvers, two .22 revolvers and an improvised airgun.  Bathan said the likelihood of an inside job cannot be ignored.

“We could come up with different theories that is why a thorough investigation is needed,” she said. CNU Intern Apple Mae M.  Ta-as

x x x."


Read more: http://newsinfo.inquirer.net/427293/inventory-of-evidence-in-courts-custody-sought#ixzz2WUH3ZXBF
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