See - 8235.pdf
"x x x.
The Code of Professional Responsibility governing the conduct of lawyers states:
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
xx xx
RULE 18.03 - A lawyer shall not neglect a legal matter entrusted_ to him, and his negligence in connection therewith shall render him liable.
RULE 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information.
x x x."
Thursday, February 12, 2015
Good faith; operative fact doctrine - GR 209287.pdf
See - 209287.pdf
"x x x.
It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of whether or not due diligence and prudence were exercised, are questions of fact.49 The want of good faith is thus better determined by tribunals other than this Court, which is not a trier of facts.50 For sure, the Court cannot jettison the presumption of good faith in this or in any other case. The presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a legal principle even in the heydays of the Roman Empire.51 In Soriano v. Marcelo,
52 citing Collantes v. Marcelo,53 the Court emphasizes the necessity of the presumption of good faith, thus:
Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith which springs from the fountain of good conscience. Specifically, a public officer is presumed to have acted in good faith in the performance of his duties. Mistakes committed by a public officer are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. "Bad faith" does not simply connote bad moral judgment or negligence. There must be some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes.
The law also requires that the public officer’s action caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. x x x
The Court has further explained in Philippine Agila Satellite, Inc. v. Trinidad-Lichauco: 54
We do not doubt the existence of the presumptions of “good faith” or “regular performance of official duty”, yet these presumptions are disputable and may be contradicted and overcome by other evidence. Many civil actions are oriented towards overcoming any number of these presumptions, and a cause of action can certainly be geared towards such effect. The very purpose of trial is to allow a party to present evidence to overcome the disputable presumptions involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived indisputability of the presumptions, the judicial exercise would be relegated to a mere ascertainment of what presumptions apply in a given case, nothing more.
Consequently, the entire Rules of Court is rendered as excess verbiage, save perhaps for the provisions laying down the legal presumptions. Relevantly, the authors, proponents and implementors of the DAP, being public officers, further enjoy the presumption of regularity in the performance of their functions. This presumption is necessary because they are clothed with some part of the sovereignty of the State, and because they act in the interest of the public as required by law.55 However, the
presumption may be disputed.56 At any rate, the Court has agreed during its deliberations to extend to
the proponents and implementors of the DAP the benefit of the doctrine of operative fact. This is because they had nothing to do at all with the adoption of the invalid acts and practices.
x x x."
"x x x.
It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of whether or not due diligence and prudence were exercised, are questions of fact.49 The want of good faith is thus better determined by tribunals other than this Court, which is not a trier of facts.50 For sure, the Court cannot jettison the presumption of good faith in this or in any other case. The presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a legal principle even in the heydays of the Roman Empire.51 In Soriano v. Marcelo,
52 citing Collantes v. Marcelo,53 the Court emphasizes the necessity of the presumption of good faith, thus:
Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith which springs from the fountain of good conscience. Specifically, a public officer is presumed to have acted in good faith in the performance of his duties. Mistakes committed by a public officer are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. "Bad faith" does not simply connote bad moral judgment or negligence. There must be some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes.
The law also requires that the public officer’s action caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. x x x
The Court has further explained in Philippine Agila Satellite, Inc. v. Trinidad-Lichauco: 54
We do not doubt the existence of the presumptions of “good faith” or “regular performance of official duty”, yet these presumptions are disputable and may be contradicted and overcome by other evidence. Many civil actions are oriented towards overcoming any number of these presumptions, and a cause of action can certainly be geared towards such effect. The very purpose of trial is to allow a party to present evidence to overcome the disputable presumptions involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived indisputability of the presumptions, the judicial exercise would be relegated to a mere ascertainment of what presumptions apply in a given case, nothing more.
Consequently, the entire Rules of Court is rendered as excess verbiage, save perhaps for the provisions laying down the legal presumptions. Relevantly, the authors, proponents and implementors of the DAP, being public officers, further enjoy the presumption of regularity in the performance of their functions. This presumption is necessary because they are clothed with some part of the sovereignty of the State, and because they act in the interest of the public as required by law.55 However, the
presumption may be disputed.56 At any rate, the Court has agreed during its deliberations to extend to
the proponents and implementors of the DAP the benefit of the doctrine of operative fact. This is because they had nothing to do at all with the adoption of the invalid acts and practices.
x x x."
Constitution - GR 209287.pdf
See - 209287.pdf
"x x x.
In this connection, the respondents must always be reminded that the Constitution is the basic law to which all laws must conform. No act that conflicts with the Constitution can be valid.24 In Mutuc v. Commission on Elections, 25 therefore, we have emphasized the importance of recognizing and bowing to the supremacy of the Constitution:
x x x The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the
discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law.
Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have reminded that: –
The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established, limited and defined, and by which these powers are distributed among the several departments. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.27
x x x."
"x x x.
In this connection, the respondents must always be reminded that the Constitution is the basic law to which all laws must conform. No act that conflicts with the Constitution can be valid.24 In Mutuc v. Commission on Elections, 25 therefore, we have emphasized the importance of recognizing and bowing to the supremacy of the Constitution:
x x x The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the
discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law.
Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have reminded that: –
The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established, limited and defined, and by which these powers are distributed among the several departments. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.27
x x x."
Savings - GR 209287.pdf
See - 209287.pdf
"x x x.
The decision of the Court has underscored that the exercise of the power to augment shall be strictly construed by virtue of its being an exception to the general rule that the funding of PAPs shall be limited to the amount fixed by Congress for the purpose.14 Necessarily, savings, their utilization and their management will also be strictly construed against expanding the scope of the power to augment.15 Such a strict interpretation is essential in order to keep the Executive and other budget implementors within the limits of their prerogatives during budget execution, and to prevent them from unduly transgressing Congress’ power of the purse.16 Hence, regardless of the perceived beneficial purposes of the DAP, and regardless of whether the DAP is viewed as an effective tool of stimulating the national economy, the acts and practices under the DAP and the relevant provisions of NBC No. 541 cited in the Decision should remain illegal and unconstitutional as long as the funds used to finance the projects mentioned therein are sourced from savings that deviated from the relevant provisions of the GAA, as well as the limitation on the power to augment under Section 25(5), Article VI of the Constitution. In a society governed by laws, even the best intentions must come within the parameters defined and set by the Constitution and the law. Laudable purposes must be carried out through legal methods.17
x x x."
"x x x.
The decision of the Court has underscored that the exercise of the power to augment shall be strictly construed by virtue of its being an exception to the general rule that the funding of PAPs shall be limited to the amount fixed by Congress for the purpose.14 Necessarily, savings, their utilization and their management will also be strictly construed against expanding the scope of the power to augment.15 Such a strict interpretation is essential in order to keep the Executive and other budget implementors within the limits of their prerogatives during budget execution, and to prevent them from unduly transgressing Congress’ power of the purse.16 Hence, regardless of the perceived beneficial purposes of the DAP, and regardless of whether the DAP is viewed as an effective tool of stimulating the national economy, the acts and practices under the DAP and the relevant provisions of NBC No. 541 cited in the Decision should remain illegal and unconstitutional as long as the funds used to finance the projects mentioned therein are sourced from savings that deviated from the relevant provisions of the GAA, as well as the limitation on the power to augment under Section 25(5), Article VI of the Constitution. In a society governed by laws, even the best intentions must come within the parameters defined and set by the Constitution and the law. Laudable purposes must be carried out through legal methods.17
x x x."
Judicial review - GR 209287.pdf
See - 209287.pdf
"x x x.
xxx. Indeed, the interpretation of the GAA and its definition of savings is a foremost judicial function. This is because the power of judicial review vested in the Court is exclusive. As clarified in Endencia and Jugo v. David:
12
Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional.
x x x x
We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental,
principles of our constitutional system of government, particularly those governing the separation of powers.
13
The respondents cannot also ignore the glaring fact that the petitions primarily and significantly alleged grave abuse of discretion on the part of the Executive in the implementation of the DAP. The resolution of the petitions thus demanded the exercise by the Court of its aforedescribed power of judicial review as mandated by the Constitution.
x x x."
"x x x.
xxx. Indeed, the interpretation of the GAA and its definition of savings is a foremost judicial function. This is because the power of judicial review vested in the Court is exclusive. As clarified in Endencia and Jugo v. David:
12
Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional.
x x x x
We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental,
principles of our constitutional system of government, particularly those governing the separation of powers.
13
The respondents cannot also ignore the glaring fact that the petitions primarily and significantly alleged grave abuse of discretion on the part of the Executive in the implementation of the DAP. The resolution of the petitions thus demanded the exercise by the Court of its aforedescribed power of judicial review as mandated by the Constitution.
x x x."
Republic Act No. 10650 - “Open Distance Learning Act”
See - Republic Act No. 10650 | Official Gazette of the Republic of the Philippines
[REPUBLIC ACT NO. 10650]
AN ACT EXPANDING ACCESS TO EDUCATIONAL SERVICES BY INSTITUTIONALIZING OPEN DISTANCE LEARNING IN LEVELS OF TERTIARY EDUCATION AND APPROPRIATING FUNDS THEREFOR
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
SECTION 1. Short Title. – This Act shall be known as the “Open Distance Learning Act”.
SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State to expand and further democratize access to quality tertiary education through the promotion and application of open learning as a philosophy of access to educational services, and the use of distance education as an appropriate, efficient and effective system of delivering quality higher and technical educational services in the country.
SEC. 3. Definition of Terms. – As used in this Act:
(a) Distance education refers to a mode of learning in which students and teachers are physically separated from each other. It is student-centered, guided independent study, making use of well-studied teaching and learning pedagogies to deliver well-designed learning materials in various media. It is also sometimes described as flexible learning and distributed learning;
(b) Higher education refers to the higher learning level after high school offering baccalaureate, graduate or post-graduate programs;
(c) Higher education degree programs refer to specific courses of study in the higher level of the education system leading to a bachelor’s, master’s or doctoral degree;
(d) Higher education institution (HEI) refers to an institution of higher learning which primarily offers degree-granting programs duly recognized by the Commission on Higher Education (CHED) and leading to the conferment of a diploma;
(e) Open Distance Learning (ODL) refers to the merger of two (2) concepts, that of open learning and distance education. It is a system which combines the methodology of distance education with the concepts of open learning and flexible learning;
(f) Open learning refers to a philosophy of learning that is based on flexibility of access for equity in education, an educational system accessible to every individual with minimal restrictions and emphasizing the flexibility of the system to eradicate problems caused by barriers like age, geographical location, time constraints and economic situation;
(g) Open university/college/institution refers to a degree-granting HEI recognized by the CHED which has at least a Level III accreditation in the programs offered in the conventional classroom or traditional mode and which employs operational procedures and strategies of an open learning institution;
(h) Post-secondary school refers to an institution that offers nondegree technical-vocational programs accredited by the Technical Education and Skills Development Authority (TESDA);
(i) Technical-vocational programs refer to post-secondary certificate courses, officially recognized as nondegree programs aimed at preparing technicians, paraprofessionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical, scientific and technological studies, and related job skills training; and
(j) Tertiary education refers to higher education degree programs, as well as post-secondary technical-vocational programs.
SEC. 4. Coverage. – This Act shall apply to public and private higher education institutions (HEIs) and post-secondary schools in the Philippines which have existing ODL programs, and to other HEIs and post-secondary schools which shall later be authorized as qualified implementers of ODL programs.
SEC. 5. Institutionalization of Open Distance Learning. – ODL is hereby institutionalized in accordance with the provisions of this Act. The ODL programs shall conform to the guidelines set by the CHED and the TESDA for both the conventional classroom or traditional mode and the nonconventional mode.
SEC. 6. Guiding Principles for ODL Courses or Subjects. – All courses or subjects offered in the ODL mode shall adhere to the following principles:
(a) Learner Centeredness – ODL programs shall focus on the needs of the learner and the goal of facilitating independent learning;
(b) Quality and Relevant Programs – ODL programs shall be equivalent in challenges and depth to conventional classroom or traditional programs in nonconventional delivery;
(c) Transparency to Guide Informed Choice – ODL implementers shall make information about their programs, particularly on the curriculum and delivery system, instructional materials development, delivery mode/strategies, student support services, and other relevant information available to accrediting bodies, academic peers, regulators and students. Updated information shall he made accessible through such media as the internet;
(d) Peer Review – A review by experts in ODL to determine the acceptability of the course or subject shall be institutionalized following the criteria set by the CHED and/or the TESDA, as applicable;
(e) Public Responsibility and Accountability – Implementers shall heed the public impact of ODL programs and shall always exercise due diligence in avoiding harm to program stakeholders, especially students. Consumer protection, in particular, shall be a priority because of the high value that Filipinos put on education; and
(f) Quality and Continuous Improvement – An HEI or post-secondary school shall embed in its program framework the proactive needs assessment of students and stakeholders in terms of the ODL program planning, implementation and evaluation. The interaction of students’ needs, interests and perceptions, faculty interests and skills/technology available and Filipino culture should be carefully examined, explored and monitored to continuously improve all aspects of development and delivery.
SEC. 7. Admission and Other Academic Policies and Requirements. – Admission and other academic policies and requirements in all HEIs and post-secondary schools offering ODL programs shall conform to the minimum policies, standards and requirements set by the CHED and/or the TESDA, as applicable.
SEC. 8. Program, Curriculum and Course Development Offerings and Requirements. – The curricular offerings using ODL mode shall ensure that the learning outcomes are clearly articulated in terms of competencies, skills and behavioral attributes and conform to the respective policies, standards and guidelines for ODL set by the CHED and/or the TESDA, as applicable.
There shall be a defined set of courses or subjects and/or examinations, and/or special projects and activities, the completion of which shall be required for graduation from the higher education degree program or technical-vocational program, and which shall be equivalent to those under the conventional mode of instruction. The following shall also be considered:
(a) The place, pace, and mode of study of the student shall be at the option and convenience of the student within the time frame as may be prescribed by the learning institution: Provided, That the content, context and conduct of examination shall be determined by the HEIs or post-secondary schools offering the ODL program;
(b) The concerned HEIs or post-secondary schools shall formulate and implement a mechanism to monitor the academic progress of the students;
(c) The curricular offerings using ODL shall conform to respective policies, standards and guidelines for ODL of the CHED and/or the TESDA, as applicable;
(d) Practicum or on-the-job trainings shall be observed for courses that require the same;
(e) Completion of all the requirements for the academic program shall be evidenced by the award of the appropriate academic degree or certificate; and
(f) For the practice of the profession for which one has acquired the necessary academic credentials through ODL, the existing requirement of the Professional Regulation Commission or other relevant government agencies of passing a licensure examination for programs offered in the conventional classroom or traditional mode, or technical-vocational programs shall also apply to graduates of ODL programs.
SEC. 9. Mode of Delivery. – The ODL programs may be delivered using information and communications technology and other approaches, such as the following:
(a) Print – textbooks, study guides, workbooks, course syllabi, correspondence feedback and other print formats;
(b) Audio-Visual – radio, audio cassettes, slides, film, videotapes, television, telephone, fax, audio-conferencing and video-conferencing;
(c) Electronic/Computer Technology and Virtual Classrooms – internet, CD-ROM, electronic mail, e-bulletin boards, podcasts, m-learning, i-lectures, e-learning or online learning management systems; and
(d) Face-to-Face Sessions – conducted in learning and study centers.
SEC. 10. Support to ODL Programs. – The CHED and the TESDA shall provide support to HEIs and post-secondary schools in developing and providing high quality programs and offerings in ODL education. This support shall include the following:
(a) Training of qualified teachers, providers, and other professionals;
(b) Relevant curriculum, courseware, and program development;
(c) Development of appropriate learning materials;
(d) Cyber infrastructure planning, resource sourcing, and implementation;
(e) School operations and management planning and development, including support services, learning management systems, instructional design and development, and research on emerging technologies; and
(f) Formal linkages and networking with institutions which may serve as learning or testing centers.
SEC. 11. Support to Students. – Any student enrolled in ODL programs under this Act shall have access to all privileges, opportunities and entitlements that a student similarly situated under the conventional system of instruction may have access to, including the availment of scholarships, grants-in-aid, and loans from the government or government-administered funding sources. Specifically, HEIs and post-secondary schools engaged in ODL programs shall be tasked to perform the following student support services:
(a) Provide clear admission policies and procedures for applicants;
(b) Maintain faculty-student dialogue and interactivity through virtual classrooms linked electronically or through established learning centers, or both, whichever may be feasible, to ensure greater knowledge sharing, access to counseling and other support services;
(c) Provide for an efficient and reliable communication system, feedback mechanism, especially on learners’ academic progress, and multimedia support;
(d) Show evidence of regular monitoring of learners’ progress; and
(e) Provide a wide range of relevant, updated and accessible learning resources that are easily accessible to students.
SEC. 12. Role of the University of the Philippines Open University. – The University of the Philippines Open University, hereinafter referred to as the UPOU, shall assist and provide expertise to the CHED and the TESDA in the performance of its functions pursuant to Section 14 of this Act. As such, it shall:
(a) Provide leadership in the development of ODL in the country and in the appropriate use of information and communications technologies in support of quality tertiary education;
(b) Promote best practices in ODL in the Philippines;
(c) Share knowledge through informed and innovative research and other development activities related to ODL through its exemplar policies, programs, materials, learning management systems, guidelines and offerings;
(d) Provide technical assistance to the CHED and the TESDA in matters relating to ODL, particularly in the development of basic curricular design and formulation of national policies, standards and guidelines for ODL programs and institutions in the country;
(e) Design model curricular programs which shall serve as prototype programs upon which similar programs to be offered by other HEIs and post-secondary schools in the country shall be patterned after;
(f) Develop and promote appropriate information and communications technology to facilitate quality ODL programs in the country;
(g) Design quality learning materials and objects, both in print and multimedia formats, for higher education and post-secondary instruction in the country;
(h) Make instructional materials for ODL programs accessible to the public through collaborative arrangements and other appropriate mechanisms;
(i) Assist other interested educational institutions in developing their ODL programs, courses, and materials for specific learner groups or the public at large;
(j) Design and implement a continuing program to develop high level expertise in the fields of ODL in the Philippines through quality higher education degree programs and technical-vocational programs through either or both ODL and face-to-face modes of instruction and training; and
(k) Help capacitate ODL teachers and practitioners through capacity building and professionalization programs.
SEC. 13. Zonal ODL Centers. – Zonal ODL centers shall be established, one each in Metro Manila, Luzon, Visayas and Mindanao, and eventually one in each region, to assist the CHED and the TESDA in performing its tasks. The zonal ODL centers shall take charge of the training of teachers for ODL programs.
SEC. 14. Roles of the CHED and the TESDA. – The CHED and the TESDA shall be respective regulators of HEIs and post-secondary schools involved in ODL programs. As such, they shall:
(a) Formulate, promulgate, disseminate and implement the necessary policies, standards, guidelines, rules and regulations for the effective implementation of ODL in the country;
(b) Develop strategies to improve the quality of ODL programs and implement a system of quality control for ODL in the country;
(c) Monitor and evaluate existing ODL programs and effect the continuation or closure of programs in accordance with the provisions of Republic Act No. 7722 or the “Higher Education Act of 1994″, the Manual of Regulations for Private Higher Education (MORPHE) and other issuances of the CHED and/or the TESDA, as applicable;
(d) Review and approve or disapprove proposals from HEIs and post-secondary schools for the implementation of new ODL programs; and
(e) Recommend to the Department of Budget and Management (DBM) the budget for ODL programs of qualified state HEIs and post-secondary schools based on the monitoring and evaluation results of the CHED and the TESDA, respectively.
SEC. 15. Roles of Broadcast Media and Telecommunications Networks. – Broadcast media and telecommunications networks are encouraged to provide as much assistance and cooperation to HEIs and post-secondary schools offering ODL programs. Such assistance may include, but not necessarily be limited to, the transmission of learning materials for formal and non-formal courses to learners not only within the Philippines, but also outside the country.
SEC. 16. Independent Evaluation. – In aid of better policy making, the CHED and the TESDA shall enter into an agreement with reputable research institutions to conduct an independent evaluation of the state, regulatory governance, quality, concerns, challenges and prospects of ODL programs in the Philippines. It shall survey a diverse group of HEIs and post-secondary schools with respect to size, mission and geographic distribution.
SEC. 17. Interim and Final Report. – The agreement under Section 16 of this Act shall require that the reputable research institutions submit to the CHED Chairperson, the TESDA Director General, the Senate Committee on Education, Culture and the Arts, and the House Committee on Higher and Technical Education the following:
(a) An interim report regarding the evaluation, as provided herein, not later than six (6) months after the date of the enactment of this Act; and
b) A final report regarding such evaluation not later than one (1) year after the date of the enactment of this Act.
SEC. 18. Tax Exemptions. – Any donation, contribution, bequest and grant, in cash, materials, and services which may be made by individuals and organizations, including private entities, which shall, provide appropriate materials, time and delivery support services for the promotion of ODL in partnership with HEIs delivering academic degree programs and post-secondary schools delivering technical-vocational programs through ODL, shall be exempt from the donor’s tax and the same shall be considered as allowable deduction from the gross income in the computation of the income tax of the donor in accordance with the provisions of the National Internal Revenue Code of 1997, as amended.
SEC. 19. Implementing Rules and Regulations. – The CHED, through its Technical Panel for Distance Education, the TESDA, and the UPOU, in consultation with relevant stakeholders in higher degree and post-secondary education, are hereby mandated to formulate the rules and regulations to implement this Act within a period of ninety (90) days from the effectivity thereof.
SEC. 20. Appropriations. – The amount needed for the initial implementation of this Act shall be charged against the current year’s appropriations of the CHED, the TESDA, and the state universities and colleges which have existing ODL programs. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the annual General Appropriations Act.
SEC. 21. Separability Clause. – If any provision of this Act or any part hereof be declared unconstitutional or invalid, the same shall not affect the validity of the other provisions of this Act.
SEC. 22. Repealing Clause. – All laws, decrees, orders, ruled and regulations or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended or modified accordingly.
SEC. 23. Effectivity. – This act shall take effect fifteen (15) days after its publication in the Official Gazette or in a newspaper of general circulation.
Approved,
(Sgd.) FELICIANO BELMONTE JR.Speaker of the House of Representatives | (Sgd.) FRANKLIN M. DRILONPresident of the Senate |
This Act which is a consolidation Senate Bill No. 2274 and House Bill No. 4553 was finally passed by the Senate and the House of Representatives on September 23, 2014 and September 24, 2014, respectively.
| (Sgd.) MARILYN B. BARUA-YAPSecretary General House of Representatives | (Sgd.) OSCAR G. YABESSecretary of the Senate |
Approved: DEC 09 2014
(Sgd.) BENIGNO S. AQUINO III
President of the Philippines
President of the Philippines
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BusinessWorld | Grandfather rule still useful in nationality test
See - BusinessWorld | Grandfather rule still useful in nationality test
"x x x.
Through the years, however, we have seen the Securities and Exchange Commission (SEC) apply two different tests -- the more liberal “control test,” and the stricter “grandfather rule.”
Under the control test, a corporation will be deemed a Philippine national as long as at least 60% of its capital stock outstanding and entitled to vote is held by Philippine citizens.
If the percentage of Filipino ownership is less than 60%, only the number of shares corresponding to such percentage shall be considered held by Philippine nationals.
This means that there is no need to trace the ownership of the Filipino stockholdings since a corporation is automatically considered Filipino as long as it is at least 60% Filipino-owned.
The control test, indisputably, is easier to apply than the grandfather rule, which determines the nationality of a corporation by tracing both the direct and indirect foreign equity of a corporation. In applying the grandfather rule, it is not enough to look into the nationality of the “parent” -- the “grandfather’s” nationality must also be looked at. But which of the two shall apply in our jurisdiction? Did the control test, used by the SEC in several of its opinions, kick out the grandfather from its throne?
In Narra Nickel Mining and Development Corp. v. Redmont Consolidated Mines Corp., a nine-month-old decision of the Supreme Court, the Court answered and clarified when the two tests shall be used in determining the nationality of a corporation.
Redmont, a domestic corporation organized and existing under Philippine laws, took interest in mining and exploring certain areas of the province of Palawan. However, the areas it sought to explore were already covered by the Mineral Production Sharing Agreement (MPSA) applications of Narra, Tesoro and McArthur companies.
Redmont opposed their applications on the ground that at least 60% of the capital stock of McArthur, Tesoro and Narra are owned and controlled by a common shareholder, MBMI Resources Inc., a 100% Canadian corporation.
Since MBMI was alleged to be the ultimate driving force behind Narra, Tesoro and McArthur, Redmont argued that they should not be qualified to engage in mining activities, which is a partly nationalized activity.
Narra, Tesoro and McArthur argued that, applying the control test, they should be considered Philippine corporations since on paper, it clearly appears that at least 60% of their capital is owned by Filipinos.
But Redmont argued that given the circumstances, it is the grandfather rule which should be applied.
In finally applying the grandfather rule and declaring that the corporations are indeed not qualified to engage in mining activities in the Philippines, the Supreme Court found that the corporation crafted a “web of corporate layering,” whereby at face value, it appears that the corporations satisfy the Filipino equity requirement, but in truth the ultimate controlling shareholders are foreigners.
Though the Supreme Court recognized that corporate layering is allowed by law, it drew the line in cases when it is used to skirt around the Constitution and pertinent laws.
Thus, the Supreme Court did away with the control test and applied the grandfather rule because it found the nationalities of the corporations to be “in doubt,” as shown by the following indicia:
• The corporations have a common major investor, MBMI, a 100% foreign corporation;
• Their corporate structures and nominal shareholders are the same;
• During the pendency of the cases, the corporations moved to convert their MPSA applications to financial or technical assistance agreements instead;
• The corporate documents of MBMI show that its operations are only through its local counterparts;
• In the course of the proceedings, MBMI suddenly divested its interest to another company and subsequently claimed that the cases are now moot. The Supreme Court agreed with the ruling of the Court of Appeals who found these actions highly suspicious.
These clearly show the pitfall of the control test -- it is as easy and more convenient to circumvent as it is easy and more convenient to use and apply in determining the nationality of a corporation.
Though the Supreme Court has made clear that the grandfather rule is definitely not yet out of the game, its ruling in Narra still gives rise to one important question -- when will the nationality of a corporation be considered “in doubt?” On the converse, when will the 60% Filipino ownership at face value be sufficient?
There is obviously no hard and fast rule that can be applied to all corporations, and every situation must be assessed based on all the surrounding circumstances.
Evidently, the Supreme Court itself is still uncovering which test is more applicable as real-life situations present themselves. As for us, we just have to wait and see how the grandfather will continue to rule the corporate world.
Candice Christine O. Tongco is an associate of the Corporate and Special Projects Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
x x x."
"x x x.
Through the years, however, we have seen the Securities and Exchange Commission (SEC) apply two different tests -- the more liberal “control test,” and the stricter “grandfather rule.”
Under the control test, a corporation will be deemed a Philippine national as long as at least 60% of its capital stock outstanding and entitled to vote is held by Philippine citizens.
If the percentage of Filipino ownership is less than 60%, only the number of shares corresponding to such percentage shall be considered held by Philippine nationals.
This means that there is no need to trace the ownership of the Filipino stockholdings since a corporation is automatically considered Filipino as long as it is at least 60% Filipino-owned.
The control test, indisputably, is easier to apply than the grandfather rule, which determines the nationality of a corporation by tracing both the direct and indirect foreign equity of a corporation. In applying the grandfather rule, it is not enough to look into the nationality of the “parent” -- the “grandfather’s” nationality must also be looked at. But which of the two shall apply in our jurisdiction? Did the control test, used by the SEC in several of its opinions, kick out the grandfather from its throne?
In Narra Nickel Mining and Development Corp. v. Redmont Consolidated Mines Corp., a nine-month-old decision of the Supreme Court, the Court answered and clarified when the two tests shall be used in determining the nationality of a corporation.
Redmont, a domestic corporation organized and existing under Philippine laws, took interest in mining and exploring certain areas of the province of Palawan. However, the areas it sought to explore were already covered by the Mineral Production Sharing Agreement (MPSA) applications of Narra, Tesoro and McArthur companies.
Redmont opposed their applications on the ground that at least 60% of the capital stock of McArthur, Tesoro and Narra are owned and controlled by a common shareholder, MBMI Resources Inc., a 100% Canadian corporation.
Since MBMI was alleged to be the ultimate driving force behind Narra, Tesoro and McArthur, Redmont argued that they should not be qualified to engage in mining activities, which is a partly nationalized activity.
Narra, Tesoro and McArthur argued that, applying the control test, they should be considered Philippine corporations since on paper, it clearly appears that at least 60% of their capital is owned by Filipinos.
But Redmont argued that given the circumstances, it is the grandfather rule which should be applied.
In finally applying the grandfather rule and declaring that the corporations are indeed not qualified to engage in mining activities in the Philippines, the Supreme Court found that the corporation crafted a “web of corporate layering,” whereby at face value, it appears that the corporations satisfy the Filipino equity requirement, but in truth the ultimate controlling shareholders are foreigners.
Though the Supreme Court recognized that corporate layering is allowed by law, it drew the line in cases when it is used to skirt around the Constitution and pertinent laws.
Thus, the Supreme Court did away with the control test and applied the grandfather rule because it found the nationalities of the corporations to be “in doubt,” as shown by the following indicia:
• The corporations have a common major investor, MBMI, a 100% foreign corporation;
• Their corporate structures and nominal shareholders are the same;
• During the pendency of the cases, the corporations moved to convert their MPSA applications to financial or technical assistance agreements instead;
• The corporate documents of MBMI show that its operations are only through its local counterparts;
• In the course of the proceedings, MBMI suddenly divested its interest to another company and subsequently claimed that the cases are now moot. The Supreme Court agreed with the ruling of the Court of Appeals who found these actions highly suspicious.
These clearly show the pitfall of the control test -- it is as easy and more convenient to circumvent as it is easy and more convenient to use and apply in determining the nationality of a corporation.
Though the Supreme Court has made clear that the grandfather rule is definitely not yet out of the game, its ruling in Narra still gives rise to one important question -- when will the nationality of a corporation be considered “in doubt?” On the converse, when will the 60% Filipino ownership at face value be sufficient?
There is obviously no hard and fast rule that can be applied to all corporations, and every situation must be assessed based on all the surrounding circumstances.
Evidently, the Supreme Court itself is still uncovering which test is more applicable as real-life situations present themselves. As for us, we just have to wait and see how the grandfather will continue to rule the corporate world.
Candice Christine O. Tongco is an associate of the Corporate and Special Projects Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
x x x."
Higher tax exemption cap on bonuses now a law | Inquirer News
See - Higher tax exemption cap on bonuses now a law | Inquirer News
"xxx.
x x x."
Read more: http://newsinfo.inquirer.net/672533/higher-tax-exemption-cap-on-bonuses-now-a-law#ixzz3RWJnfr10
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"xxx.
MANILA, Philippines – President Benigno Aquino III has signed into law the measure raising the ceiling for tax exemption on bonuses and other benefits of workers in the public and private sectors, an administration lawmaker said Thursday.
In a statement, Ways and Means committee chair Marikina Rep. Miro Quimbo lauded the President’s passage of the bill, saying the measure would benefit the middle class salary earners.
“The President saw the significance of the measure as it is projected to benefit taxpayers from low to middle incomes who have not had any reprieve from the burdensome taxes imposed on their earnings,” Quimbo said.
“These are the salary and wage earners who long deserve a break from the inequitable tax system that we currently have,” he added.
The law increases the tax exemption cap from P30,000 to P82,000, amending for this purpose Section 32(B)(7)(E) of the National Internal Revenue Code of 1997.
The tax exemption covers all bonuses, including 13th month pay and Christmas bonus.
Aquino received his copy of the bill on January 14 after both Houses of Congress ratified the bill December last year. It would have become a law on February 14 if it does not get the President’s signature, when the 30 calendar day-period lapses.
Quimbo said salary earners would feel the impact of the bill as early as June this year, when some workers will receive the first half of their 13th month bonuses.
Finance and tax officials have opposed the passage of the bill, warning of revenue loss reaching up to P30 billion. But Quimbo has said losses would only amount to P3.8 billion.
x x x."
Read more: http://newsinfo.inquirer.net/672533/higher-tax-exemption-cap-on-bonuses-now-a-law#ixzz3RWJnfr10
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BJMP warden faces raps for allegedly violating rights of political prisoners | Inquirer News
See - BJMP warden faces raps for allegedly violating rights of political prisoners | Inquirer News
"x x x.
Read more: http://newsinfo.inquirer.net/672464/bjmp-warden-faces-raps-for-allegedly-violating-rights-of-political-prisoners#ixzz3RWIwIPT0
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"x x x.
Criminal complaints have been filed with the Office of the Ombudsman against an official of the Bureau of Jail Management and Penology (BJMP) for violating the rights of political prisoners.
The complaint for violation of Republic Act 7438 known as An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation As Well As the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof was filed against Jail Senior Inspector Michelle Ng-Bonto, officer-in-charge warden of the Special Intensive Care Area 1 (SICA 1) in Camp Bagong Diwa in Taguig.
The complainants also filed an administrative charges against Ng-Bonto for gross misconduct, grave abuse of authority, gross oppression and for conduct unbecoming of a Public Officer.
Complainants are lawyers, doctors, political detainees and their relatives who, in separate affidavits, accused Ng-Bonto of refusal to allow family members and doctors to visit the political prisoners who were on hunger strike during the Papal visit last January. The political prisoners, in the course of the hunger strike/fasting, faced reprisals and curtailment of their rights.
x x x."Read more: http://newsinfo.inquirer.net/672464/bjmp-warden-faces-raps-for-allegedly-violating-rights-of-political-prisoners#ixzz3RWIwIPT0
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Monday, February 9, 2015
Burden of proof in disbarment and suspension proceedings
"x x x.
The burden of proof in disbarment and suspension proceedings always rests on the complainant. The Court exercises its disciplinary power only if the complainant establishes the complaint by clearly preponderant evidence that warrants the imposition of the harsh penalty. As a rule, an attorney enjoys the legal presumption that he is innocent of the charges made against him until the contrary is proved. An attorney is further presumed as an officer of the Court to have performed his duties in accordance with his oath.18
In the cases at bench, the Court finds the evidentiary records to be inconclusive, thus, insufficient to hold the respondents liable for the acts alleged in the complaint.
x x x."
See -
RAUL C. LANUZA and
REYNALDO C. RASING,
Complainants,
- versus -
A TTYS. FRANKIE 0. MA GSA LIN
III and PABLO R. CRUZ,
Respondents.
A.C. No. 7687, Dec. 3, 2014.
Negligence; lawyer suspended
"x x x.
In the present case, Atty. Agleron admitted his failure to file the complaint against the Municipality of Caraga, Davao Oriental, despite the fact that it was already prepared and signed. He attributed his non-filing of the appropriate charges on the failure of complainant to remit the full payment of the filing fee and pay the 30% of the attorney's fee. Such justification, however, is not a valid excuse that would exonerate him from liability. As stated, every case that is entrusted to a lawyer deserves his full attention whether he accepts this for a fee or free. Even assuming that complainant had not remitted the full payment of the filing fee, he should have found a way to speak to his client and inform him about the insufficiency of the filing fee so he could file the complaint. Atty. Agleron obviously lacked professionalism in dealing with complainant and showed incompetence when he failed to file the appropriate charges.
In a number of cases, 8 the Court held that a lawyer should never neglect a legal matter entrusted to him, otherwise his negligence renders him liable for disciplinary action such as suspension ranging from three months to two years. In this case, the Court finds the suspension of Atty. Agleron from the practice of law for a period of three (3) months sufficient.
WHEREFORE, the resolution of the IBP Board of Governors is hereby AFFIRMED with MODIFICATION. Accordingly, respondent ATTY. ARNULFO M. AGLERON, SR. is hereby SUSPENDED from the practice of law for a period of THREE (3) MONTHS, with a stern warning
that a repetition of the same or similar wrongdoing will be dealt with more severely.
Let a copy of this resolution be furnished the Bar Confidant to be included in the records of the respondent; the Integrated Bar of the Philippines for distribution to all its chapters; and the Office of the Court Administrator for dissemination to all courts throughout the country.
SO ORDERED.
x x x."
Lack of diligence - 8235.pdf
See - 8235.pdf
"x x x.
WHEREFORE, Atty. Benjamin F. Baterina is found GUILTY of gross negligence. He is SUSPENDED from the practice of law for five (5) years. He is also STERNLY WARNED that a repetition of the same or a similar offense will be dealt with more severely.
This decision shall take effect immediately and copies thereof furnished the Office of the Bar Confidant, to be appended to respondent's personal record, and the Integrated Bar of the Philippines.
The Office of the Court Administrator is directed to circulate copies of this decision to all courts.
SO ORDERED.
x x x."
"x x x.
WHEREFORE, Atty. Benjamin F. Baterina is found GUILTY of gross negligence. He is SUSPENDED from the practice of law for five (5) years. He is also STERNLY WARNED that a repetition of the same or a similar offense will be dealt with more severely.
This decision shall take effect immediately and copies thereof furnished the Office of the Bar Confidant, to be appended to respondent's personal record, and the Integrated Bar of the Philippines.
The Office of the Court Administrator is directed to circulate copies of this decision to all courts.
SO ORDERED.
x x x."
Lawyer suspended for P2.5-M debt | ABS-CBN News
See - Lawyer suspended for P2.5-M debt | ABS-CBN News
"x x x.
"x x x.
MANILA, Philippines - The Supreme Court (SC) has suspended a lawyer for three years for failing to pay P2.5 million he borrowed from his client.
In a statement issued yesterday, the SC upheld the findings of the Integrated Bar of the Philippines (IBP) that Elmer dela Rosa violated the Code of Professional Responsibility.
The ruling was penned by Justice Estela Perlas-Bernabe.
However, the SC dismissed the IBP’s recommendation for Dela Rosa to return the P2.5 million to complainants Henry Concepcion and his wife, Blessilda, because it was no longer covered by the administrative case.
The High Court said it was only concerned with “the determination of the respondent’s administrative liability; it should not involve his civil liability for money received from his client in a transaction separate, distinct, and not intrinsically linked to his professional engagement.”
Court records show that Dela Rosa knew his clients had P2.5 million intact from a failed business venture and on March 23, 2006, he asked Henry to loan him the money, which he promised to return with interest after five days.
The couple issued three checks to cover the amount. Dela Rosa failed to return the money.
Dela Rosa claimed the real debtor was his other client, Jean Charles Nault.
The SC, however, cited the IBP report stating that the checks were issued in Dela Rosa’s name and he personally received and encashed them.
“In unduly borrowing money from the complainants and by blatantly refusing to pay the same, respondent abused the trust and confidence reposed in him by his clients, and, in so doing, failed to uphold the integrity and dignity of the legal profession,” the SC added.
x x x."
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