The Findlaw.Com law commentary of American lawyer M. Dorf (click link above) discusses the very recent order of a US federal court in California invalidating the state's Proposition No. 8, which prohibits same-sex marriage by way of an amendatory proposition in the constitution of that state. The court cited the due process and equal protection clauses of the US federal constitution as its legal bases for the nullification of the said proposition.
Dorf, in his aforecited article, stated, inter alia, thus:
"The Ruling and its Implications Beyond Prop 8
Much of Judge Walker's thorough opinion summarizes the evidence presented at trial and makes factual findings based on that evidence. Some of the evidence and findings relate to matters unique to California. For example, Judge Walker found that the particular advertising campaign that was conducted in support of Prop 8 appealed to ugly stereotypes about gay men and lesbians.
However, the ultimate decision does not rest on circumstances that are in any way California-specific. Judge Walker invalidated Prop 8 on two grounds, both of which would apply in any state that denies same-sex couples the legal ability to marry.
First, he found that the long-recognized federal constitutional right to marry applies to same-sex couples. Although Prop 8's supporters argued that the federal constitutional right had traditionally encompassed only opposite-sex couples, Judge Walker noted that the right has evolved over time, even while retaining its core characteristics. He explained that racial restrictions on marriage were dropped without undermining the institution. So too, traditional marriage gave the husband legal primacy over the wife, but the gender-based aspects of marriage were eliminated without damaging marriage per se. Thus, Judge Walker concluded that permitting same-sex couples to marry would merely be one further evolutionary step, consistent with prior liberalization.
Second, Judge Walker held that denying same-sex couples the right to marry denies them the equal protection of the laws. Although he struck down Prop 8 as not even minimally rational, he also made clear that the denial of the right to same-sex marriage should have to survive much more rigorous judicial scrutiny. Prop 8 illicitly discriminates both on the basis of sex and on the basis of sexual orientation, he found.
On the other side of the ledger, Judge Walker found nothing substantial. The core defense offered for Prop 8 was that same-sex marriage somehow undermines opposite-sex marriage. However, Judge Walker concluded that "[p]ermitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."
Likewise, Judge Walker found that legal domestic partnerships are an inadequate substitute for marriage. They do not carry the same interstate benefits as marriage and they lack the social meaning that the term "marriage" conveys. Accordingly, if applied nationwide, Judge Walker's decision would grant same-sex couples a right to marry in every state."
Note: Read the court's opinion at https://docs.google.com/viewer?url=http://graphics8.nytimes.com/packages/pdf/us/20100804_prop8_decision.pdf&pli=1.
Tuesday, August 10, 2010
Monday, August 9, 2010
Dishonesty and conflict of interest
I am repeating the case of ROLANDO B. PACANA, JR. vs. ATTY. MARICEL PASCUAL-LOPEZ, En Banc. A.C. No. 8243, July 24, 2009, with an extensive reproduction of its text, in view of the importance of the doctrines pronounced therein, which the Bar must heed and internalize. The respondent lady lawyer was DISBARRED for deceit and conflict of interest. Thus:
X x x.
Rule 15.03, Canon 15 of the Code of Professional responsibility provides:
Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts.
This prohibition is founded on principles of public policy, good taste and, more importantly, upon necessity. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points. Such knowledge must be considered sacred and guarded with care. No opportunity must be given to him to take advantage of his client; for if the confidence is abused, the profession will suffer by the loss thereof. It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double ─ dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is paramount in the administration of justice. It is for these reasons that we have described the attorney-client relationship as one of trust and confidence of the highest degree.
Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of “friendly accommodations,” precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC.
Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant. This argument all the more reveals respondent’s patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said:
The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. (Emphasis supplied.)
Given the situation, the most decent and ethical thing which respondent should have done was either to advise complainant to engage the services of another lawyer since she was already representing the opposing parties, or to desist from acting as representative of Multitel investors and stand as counsel for complainant. She cannot be permitted to do both because that would amount to double-dealing and violate our ethical rules on conflict of interest.
In Hornilla v. Atty. Salunat, we explained the concept of conflict of interest, thus:
There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.
Indubitably, respondent took advantage of complainant’s hapless situation, initially, by giving him legal advice and, later on, by soliciting money and properties from him. Thereafter, respondent impressed upon complainant that she had acted with utmost sincerity in helping him divest all the properties entrusted to him in order to absolve him from any liability. But simultaneously, she was also doing the same thing to impress upon her clients, the party claimants against Multitel, that she was doing everything to reclaim the money they invested with Multitel. Respondent herself admitted to complainant that without the latter’s help, she would not have been able to earn as much and that, as a token of her appreciation, she was willing to share some of her earnings with complainant. Clearly, respondent’s act is shocking, as it not only violated Rule 9.02, Canon 9 of the Code of Professional Responsibility, but also toyed with decency and good taste.
Respondent even had the temerity to boast that no Multitel client had ever complained of respondent’s unethical behavior. This remark indubitably displays respondent’s gross ignorance of disciplinary procedure in the Bar. As a member of the Bar, she is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter even if no private individual files any administrative complaint.
Upon review, we find no cogent reason to disturb the findings and recommendations of the IBP Investigating Commissioner, as adopted by the IBP Board of Governors, on the admissibility of the electronic evidence submitted by complainant. We, accordingly, adopt the same in toto.
Finally, respondent argues that the recommendation of the IBP Board of Governors to disbar her on the grounds of deceit, malpractice and other gross misconduct, aside from violation of the Lawyer’s Oath, has been rendered moot and academic by voluntary termination of her IBP membership, allegedly after she had been placed under the Department of Justice’s Witness Protection Program. Convenient as it may be for respondent to sever her membership in the integrated bar, this Court cannot allow her to do so without resolving first this administrative case against her.
The resolution of the administrative case filed against respondent is necessary in order to determine the degree of her culpability and liability to complainant. The case may not be dismissed or rendered moot and academic by respondent’s act of voluntarily terminating her membership in the Bar regardless of the reason for doing so. This is because membership in the Bar is a privilege burdened with conditions. The conduct of a lawyer may make him or her civilly, if not criminally, liable to his client or to third parties, and such liability may be conveniently avoided if this Court were to allow voluntary termination of membership. Hence, to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability. No such proof exists in the present case.
WHEREFORE, respondent Attorney Maricel Pascual-Lopez is hereby DISBARRED for representing conflicting interests and for engaging in unlawful, dishonest and deceitful conduct in violation of her Lawyer’s Oath and the Code of Professional Responsibility.
Let a copy of this Decision be entered in the respondent’s record as a member of the Bar, and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation to all courts in the country.
SO ORDERED.
X x x.
X x x.
Rule 15.03, Canon 15 of the Code of Professional responsibility provides:
Rule 15.03 – A lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts.
This prohibition is founded on principles of public policy, good taste and, more importantly, upon necessity. In the course of a lawyer-client relationship, the lawyer learns all the facts connected with the client’s case, including its weak and strong points. Such knowledge must be considered sacred and guarded with care. No opportunity must be given to him to take advantage of his client; for if the confidence is abused, the profession will suffer by the loss thereof. It behooves lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double ─ dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is paramount in the administration of justice. It is for these reasons that we have described the attorney-client relationship as one of trust and confidence of the highest degree.
Respondent must have known that her act of constantly and actively communicating with complainant, who, at that time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that the assistance she rendered to complainant was only in the form of “friendly accommodations,” precisely because at the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had been referred to her by the SEC.
Respondent also tries to disprove the existence of such relationship by arguing that no written contract for the engagement of her services was ever forged between her and complainant. This argument all the more reveals respondent’s patent ignorance of fundamental laws on contracts and of basic ethical standards expected from an advocate of justice. The IBP was correct when it said:
The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. (Emphasis supplied.)
Given the situation, the most decent and ethical thing which respondent should have done was either to advise complainant to engage the services of another lawyer since she was already representing the opposing parties, or to desist from acting as representative of Multitel investors and stand as counsel for complainant. She cannot be permitted to do both because that would amount to double-dealing and violate our ethical rules on conflict of interest.
In Hornilla v. Atty. Salunat, we explained the concept of conflict of interest, thus:
There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.
Indubitably, respondent took advantage of complainant’s hapless situation, initially, by giving him legal advice and, later on, by soliciting money and properties from him. Thereafter, respondent impressed upon complainant that she had acted with utmost sincerity in helping him divest all the properties entrusted to him in order to absolve him from any liability. But simultaneously, she was also doing the same thing to impress upon her clients, the party claimants against Multitel, that she was doing everything to reclaim the money they invested with Multitel. Respondent herself admitted to complainant that without the latter’s help, she would not have been able to earn as much and that, as a token of her appreciation, she was willing to share some of her earnings with complainant. Clearly, respondent’s act is shocking, as it not only violated Rule 9.02, Canon 9 of the Code of Professional Responsibility, but also toyed with decency and good taste.
Respondent even had the temerity to boast that no Multitel client had ever complained of respondent’s unethical behavior. This remark indubitably displays respondent’s gross ignorance of disciplinary procedure in the Bar. As a member of the Bar, she is expected to know that proceedings for disciplinary actions against any lawyer may be initiated and prosecuted by the IBP Board of Governors, motu proprio or upon referral by this Court or by the Board of Officers of an IBP Chapter even if no private individual files any administrative complaint.
Upon review, we find no cogent reason to disturb the findings and recommendations of the IBP Investigating Commissioner, as adopted by the IBP Board of Governors, on the admissibility of the electronic evidence submitted by complainant. We, accordingly, adopt the same in toto.
Finally, respondent argues that the recommendation of the IBP Board of Governors to disbar her on the grounds of deceit, malpractice and other gross misconduct, aside from violation of the Lawyer’s Oath, has been rendered moot and academic by voluntary termination of her IBP membership, allegedly after she had been placed under the Department of Justice’s Witness Protection Program. Convenient as it may be for respondent to sever her membership in the integrated bar, this Court cannot allow her to do so without resolving first this administrative case against her.
The resolution of the administrative case filed against respondent is necessary in order to determine the degree of her culpability and liability to complainant. The case may not be dismissed or rendered moot and academic by respondent’s act of voluntarily terminating her membership in the Bar regardless of the reason for doing so. This is because membership in the Bar is a privilege burdened with conditions. The conduct of a lawyer may make him or her civilly, if not criminally, liable to his client or to third parties, and such liability may be conveniently avoided if this Court were to allow voluntary termination of membership. Hence, to terminate one’s membership in the Bar voluntarily, it is imperative that the lawyer first prove that the voluntary withdrawal of membership is not a ploy to further prejudice the public or to evade liability. No such proof exists in the present case.
WHEREFORE, respondent Attorney Maricel Pascual-Lopez is hereby DISBARRED for representing conflicting interests and for engaging in unlawful, dishonest and deceitful conduct in violation of her Lawyer’s Oath and the Code of Professional Responsibility.
Let a copy of this Decision be entered in the respondent’s record as a member of the Bar, and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation to all courts in the country.
SO ORDERED.
X x x.
Gross negligence and grave misconduct
In the case of CESAR TALENTO and MODESTA HERRERA TALENTO vs. ATTY. AGUSTIN F. PANEDA, A.C. No. 7433 [Formerly CBD Case No. 05-1554], December 23, 2009, where the Supreme Court found respondent Atty. Agustin F. Paneda GUILTY of violating Canons 17 and 18 as well as Rules 18.02 and 18.03 of the Code of Professional Responsibility and accordingly SUSPENDED respondent from the practice of law for ONE (1) YEAR effective upon finality of the Decision, the following doctrines were held:
x x x,
The only issue to be resolved in this case is whether or not respondent committed gross negligence or misconduct in handling petitioners’ case both on trial in the RTC and on appeal in the CA which led to its dismissal without affording petitioners the opportunity to present their evidence.
After a careful consideration of the records of the instant case, this Court agrees with the IBP in its findings and conclusion that respondent’s documented acts fall extremely short of the standard of professional duty that all lawyers are required to faithfully adhere to.
The pertinent Canons of the Code of Professional Responsibility provide:
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
x x x x x
Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
There is no doubt that respondent was woefully remiss in his duty to display utmost diligence and competence in protecting the interests of his clients. The records of this case clearly detailed dire instances of professional neglect which undoubtedly showed respondent’s failure to live up to his duties and responsibilities as a member of the legal profession. Petitioners lost Civil Case No. A-2043 in the RTC mainly because they were barred from presenting their evidence in court. This was a result of their being declared in default in the said case as a consequence of respondent’s failure to appear at the pre-trial conference. Respondent defended his non-appearance by stating that he had informed petitioners beforehand of a conflict of schedule and that he had instructed them on what to do in his absence, but petitioners vehemently denied this claim.
Even if we are to give credence to respondent’s justification, this does not excuse him from the fact that he was unable to file a Pre-trial Brief at least three (3) days prior to the scheduled pre-trial conference, as required by the Rules. Respondent alleges that he already prepared the Pre-trial Brief but did not push through with filing it because he was allegedly furnished by petitioner Modesta Herrera Talento with an Amicable Settlement that was forged between the parties before the Barangay Lupon of San Pedro, Agoo, La Union. He claims that he instructed his clients to present said document during the pre-trial conference as he had another hearing to attend. However, respondent’s excuse is untenable as any lawyer worth his salt would readily know that once a case has been filed in court, any amicable settlement between the parties must be approved by the court in order for it to be legally binding in accordance with Section 416 of the Local Government Code of 1991 in relation to the last paragraph of Section 408 of the same Code. Thus, he cannot assume that the case will be deemed closed by virtue of the supposed amicable settlement so as to excuse him from filing the Pre-trial Brief and from appearing at the pre-trial set by the court.
With regard to his subsequent error of failing to file the required Appeal Brief which led to the dismissal of his clients’ appeal before the CA, respondent did not give any plausible explanation other than merely placing the blame on the incompetence of his secretary in not promptly informing him about her receipt of the Notice of Submission of Appellants’ Brief. This mistake by respondent is exacerbated by the fact that he did not care to inform his clients of the dismissal of their appeal in 2002 and it was only in 2005 that his clients learned about this unfortunate turn of events.
It is beyond dispute that respondent is duty-bound by his oath as a lawyer to diligently prosecute the case of his clients to the best of his ability within the bounds of law. Regrettably, the facts of this case illustrate respondent’s dismal performance of that responsibility, which in its totality could amount to a reprehensible abandonment of his clients’ cause.
A lawyer, when he undertakes his client’s cause, makes a covenant that he will exert all efforts for its prosecution until its final conclusion. He should undertake the task with dedication and care, and he should do no less, otherwise, he is not true to his lawyer’s oath.
As held in the case of Vda. De Enriquez v. San Jose:
The Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.
In Balatbat v. Arias, the Court also held that:
It must be stressed that public interest requires that an attorney exert his best efforts in the prosecution or defense of a client’s cause. A lawyer who performs that duty with diligence and candor not only protects the interests of his client, he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being hurled at the legal profession, strict compliance with one’s oath of office and the canons of professional ethics is an imperative.
x x x,
The only issue to be resolved in this case is whether or not respondent committed gross negligence or misconduct in handling petitioners’ case both on trial in the RTC and on appeal in the CA which led to its dismissal without affording petitioners the opportunity to present their evidence.
After a careful consideration of the records of the instant case, this Court agrees with the IBP in its findings and conclusion that respondent’s documented acts fall extremely short of the standard of professional duty that all lawyers are required to faithfully adhere to.
The pertinent Canons of the Code of Professional Responsibility provide:
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
CANON 18 – A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
x x x x x
Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
There is no doubt that respondent was woefully remiss in his duty to display utmost diligence and competence in protecting the interests of his clients. The records of this case clearly detailed dire instances of professional neglect which undoubtedly showed respondent’s failure to live up to his duties and responsibilities as a member of the legal profession. Petitioners lost Civil Case No. A-2043 in the RTC mainly because they were barred from presenting their evidence in court. This was a result of their being declared in default in the said case as a consequence of respondent’s failure to appear at the pre-trial conference. Respondent defended his non-appearance by stating that he had informed petitioners beforehand of a conflict of schedule and that he had instructed them on what to do in his absence, but petitioners vehemently denied this claim.
Even if we are to give credence to respondent’s justification, this does not excuse him from the fact that he was unable to file a Pre-trial Brief at least three (3) days prior to the scheduled pre-trial conference, as required by the Rules. Respondent alleges that he already prepared the Pre-trial Brief but did not push through with filing it because he was allegedly furnished by petitioner Modesta Herrera Talento with an Amicable Settlement that was forged between the parties before the Barangay Lupon of San Pedro, Agoo, La Union. He claims that he instructed his clients to present said document during the pre-trial conference as he had another hearing to attend. However, respondent’s excuse is untenable as any lawyer worth his salt would readily know that once a case has been filed in court, any amicable settlement between the parties must be approved by the court in order for it to be legally binding in accordance with Section 416 of the Local Government Code of 1991 in relation to the last paragraph of Section 408 of the same Code. Thus, he cannot assume that the case will be deemed closed by virtue of the supposed amicable settlement so as to excuse him from filing the Pre-trial Brief and from appearing at the pre-trial set by the court.
With regard to his subsequent error of failing to file the required Appeal Brief which led to the dismissal of his clients’ appeal before the CA, respondent did not give any plausible explanation other than merely placing the blame on the incompetence of his secretary in not promptly informing him about her receipt of the Notice of Submission of Appellants’ Brief. This mistake by respondent is exacerbated by the fact that he did not care to inform his clients of the dismissal of their appeal in 2002 and it was only in 2005 that his clients learned about this unfortunate turn of events.
It is beyond dispute that respondent is duty-bound by his oath as a lawyer to diligently prosecute the case of his clients to the best of his ability within the bounds of law. Regrettably, the facts of this case illustrate respondent’s dismal performance of that responsibility, which in its totality could amount to a reprehensible abandonment of his clients’ cause.
A lawyer, when he undertakes his client’s cause, makes a covenant that he will exert all efforts for its prosecution until its final conclusion. He should undertake the task with dedication and care, and he should do no less, otherwise, he is not true to his lawyer’s oath.
As held in the case of Vda. De Enriquez v. San Jose:
The Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.
In Balatbat v. Arias, the Court also held that:
It must be stressed that public interest requires that an attorney exert his best efforts in the prosecution or defense of a client’s cause. A lawyer who performs that duty with diligence and candor not only protects the interests of his client, he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being hurled at the legal profession, strict compliance with one’s oath of office and the canons of professional ethics is an imperative.
Disbarred for misconduct
CONRADO QUE vs. ATTY. ANASTACIO REVILLA, JR., En Banc, A.C. No. 7054, December 4, 2009 (per curiam).
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The Court found respondent lawyer liable for professional misconduct for violations of the Lawyer's Oath; Canon 8; Rules 10.01 and 10.03, Canon 10; Rules 12.02 and 12.04, Canon 12; Rule 19.01, Canon 19 of the Code of Professional Responsibility; and Sections 20(d), 21 and 27 of Rule 138 of the Rules of Court. He was DISBARRED from the practice of law. The pronouncements:
The Court's Ruling
Except for the penalty, we agree with the Report and Recommendation of Investigating Commissioner Cunanan and the Board of Governors of the IBP Committee on Bar Discipline.
We take judicial notice that this disbarment complaint is not the only one so far filed involving the respondent; another complaint invoking similar grounds has previously been filed. In Plus Builders, Inc. and Edgardo C. Garcia v. Atty. Anastacio E. Revilla, Jr., we suspended the respondent from the practice of law for his willful and intentional falsehood before the court; for misuse of court procedures and processes to delay the execution of a judgment; and for collaborating with non-lawyers in the illegal practice of law. We initially imposed a suspension of two (2) years, but in an act of leniency subsequently reduced the suspension to six (6) months.
Abuse of court procedures and processes
The following undisputed facts fully support the conclusion that the respondent is guilty of serious misconduct for abusing court procedures and processes to shield his clients from the execution of the final judgments of the MeTC and RTC in the unlawful detainer case against these clients:
First, the respondent filed a petition for certiorari (docketed as CA-G.R. SP No. 53892) with prayer for the issuance of preliminary injunction and temporary restraining order to question the final judgments of the MeTC and RTC for lack of jurisdiction. In dismissing the respondent's petition, the CA held:
Even for the sake of argument considering that the petition case be the proper remedy, still it must be rejected for failure of petitioners to satisfactorily demonstrate lack of jurisdiction on the part of the Metropolitan Trial Court of Quezon City over the ejectment case.
Second, notwithstanding the CA's dismissal of the petition for certiorari, the respondent again questioned the MeTC's and the RTC's lack of jurisdiction over the unlawful detainer case in a petition for annulment of judgment (docketed as Civil Case No. Q-01-45556) before the RTC with an ancillary prayer for the grant of a temporary restraining order and preliminary injunction. The RTC dismissed this petition on the basis of the motion to dismiss filed.
Third, the respondent successively filed two petitions (docketed as Civil Case No. Q-99-38780 and Civil Case No. Q-02-46885) for annulment of the complainant's title to the property involved in the unlawful detainer case. The records show that these petitions were both dismissed "for lack of legal personality on the part of the plaintiffs" to file the petition.
Fourth, after the dismissals of the petition for annulment of judgment and the petitions for annulment of title, the respondent this time filed a petition for declaratory relief with prayer for a writ of preliminary injunction to enjoin the complainant and his siblings from exercising their rights over the same property subject of the unlawful detainer case. The respondent based the petition on the alleged nullity of the complainant's title because the property is a part of forest land.
Fifth, the persistent applications by the respondent for injunctive relief in the four petitions he had filed in several courts – the petition for certiorari, the petition for annulment of judgment, the second petition for annulment of complainant's title and the petition for declaratory relief – reveal the respondent's persistence in preventing and avoiding the execution of the final decisions of the MeTC and RTC against his clients in the unlawful detainer case.
Under the circumstances, the respondent's repeated attempts go beyond the legitimate means allowed by professional ethical rules in defending the interests of his client. These are already uncalled for measures to avoid the enforcement of final judgments of the MeTC and RTC. In these attempts, the respondent violated Rule 10.03, Canon 10 of the Code of Professional Responsibility which makes it obligatory for a lawyer to "observe the rules of procedure and. . . not [to] misuse them to defeat the ends of justice." By his actions, the respondent used procedural rules to thwart and obstruct the speedy and efficient administration of justice, resulting in prejudice to the winning parties in that case.
Filing of multiple actions and forum shopping
The respondent likewise violated Rule 12.02 and Rule 12.04, Canon 12 of the Code of Professional Responsibility, as well as the rule against forum shopping, both of which are directed against the filing of multiple actions to attain the same objective. Both violations constitute abuse of court processes; they tend to degrade the administration of justice; wreak havoc on orderly judicial procedure; and add to the congestion of the heavily burdened dockets of the courts.
While the filing of a petition for certiorari to question the lower courts' jurisdiction may be a procedurally legitimate (but substantively erroneous) move, the respondent's subsequent petitions involving the same property and the same parties not only demonstrate his attempts to secure favorable ruling using different fora, but his obvious objective as well of preventing the execution of the MeTC and RTC decisions in the unlawful detainer case against his clients. This intent is most obvious with respect to the petitions for annulment of judgment and declaratory relief, both geared towards preventing the execution of the unlawful detainer decision, long after this decision had become final.
Willful, intentional and deliberate
falsehood before the courts
The records also reveal that the respondent committed willful, intentional and deliberate falsehood in the pleadings he filed with the lower courts.
First, in the petition for annulment of judgment filed before the RTC, Branch 101, Quezon City, the respondent cited extrinsic fraud as one of the grounds for the annulment sought. The extrinsic fraud was alleged in the last paragraph of the petition, as follows:
In here, counsel for the petitioners (defendants therein), deliberately neglected to file the proper remedy then available after receipt of the denial of their Motion for Reconsideration … thus corruptly sold out the interest of the petitioners (defendants therein) by keeping them away to the Court and in complete ignorance of the suit by a false pretense of compromise and fraudulent acts of alleging representing them when in truth and in fact, have connived with the attorney of the prevailing party at his defeat to the prejudice of the petitioner (defendants therein) …
Yet, in paragraph 35 of the same petition, the respondent alleged that no second motion for reconsideration or for new trial, or no other petition with the CA had been filed, as he believed "that the decisions rendered both by the MeTC and the RTC are null and void." These conflicting claims, no doubt, involve a fabrication made for the purpose of supporting the petition for annulment. Worse, it involved a direct and unsubstantiated attack on the reputation of a law office colleague, another violation we shall separately discuss below.
Second, the respondent employed another obvious subterfuge when he filed his second petition for annulment of title, which was an unsuccessful attempt to circumvent the rule that only the Solicitor General may commence reversion proceedings of public lands on behalf of the Republic of the Philippines. This second petition, filed by a private party and not by the Republic, showed that: (a) the respondent and his clients requested that they be represented by the Solicitor General in the proceedings; (b) the Republic of the Philippines was simply impleaded in the amended petition without its consent as a plaintiff; and (c) the respondent signed the amended petition where he alone stood as counsel for the "plaintiffs." In this underhanded manner, the respondent sought to compel the Republic to litigate and waste its resources on an unauthorized and unwanted suit.
Third, the respondent also committed falsehood in his motion for reconsideration of the order dismissing his petition for annulment of judgment where he misrepresented to the court and his clients what actually transpired in the hearing of June 28, 2002 in this wise:
Likewise, the proceedings on said date of hearing (June 28, 2002) show, that after both counsel have argued on the aforesaid pending incident, the Honorable Presiding Judge, in open court, and in the presence and within the hearing distance of all the plaintiffs and their counsel as well as the counsel of the defendants resolved: TO DENY THE MOTION TO DISMISS FILED AND DIRECTED DEFENDANTS COUNSEL TO FILE AN ANSWER TO THE COMPLAINT WITHIN THE REMAINING PERIOD.[Underscoring and emphasis theirs]
The records, however, disclose that the scheduled hearing for June 28, 2002 was actually for the respondent's application for temporary restraining order and was not a hearing on the adverse party's motion to dismiss. The records also show that RTC-Branch 101 held in abeyance the respondent's application for injunctive relief pending the resolution of the motion to dismiss filed by the adverse party. As stated in the order of the Presiding Judge of RTC-Branch 101:
Browsing over the records of this case specifically the transcripts of stenographic notes as transcribed by the Stenographer, the same will indicate that the allegations in the Motion for Reconsideration are not true.
… how can this Court make a ruling on the matter even without stating the factual and legal bases as required/mandated by the Rules. Moreover, there are no indications or iota of irregularity in the preparation by Stenographer of the transcripts, and by the Court interpreter of the Minutes of the open Court session.[Underscoring theirs]
The records further disclose that despite knowledge of the falsity of his allegations, the respondent took advantage of his position and the trust reposed in him by his clients (who are all squatters) to convince them to support, through their affidavits, his false claims on what allegedly transpired in the June 28, 2002 hearing.
For these acts, we find the respondent liable under Rule 10.01 of Canon 10 the Code of Professional Responsibility for violating the lawyer's duty to observe candor and fairness in his dealings with the court. This provision states:
CANON 10 – A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT
Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the doing of any in Court, nor shall he mislead or allow the Court to be mislead by an artifice.
Likewise, the respondent violated his duty as an attorney and his oath as a lawyer "never to mislead the judge or any judicial officer by an artifice or false statement of fact or law." The respondent failed to remember that his duty as an officer of the court makes him an indispensable participant in the administration of justice, and that he is expected to act candidly, fairly and truthfully in his work. His duty as a lawyer obligates him not to conceal the truth from the court, or to mislead the court in any manner, no matter how demanding his duties to his clients may be. In case of conflict, his duties to his client yield to his duty to deal candidly with the court.
In defending his clients' interest, the respondent also failed to observe Rule 19.01, Canon 19 of the Code of Professional Responsibility, which reads:
CANON 19 – A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF LAW
Rule 19.01 – A lawyer shall employ only fair and honest means to attain the lawful objectives of his clients x x x
This Canon obligates a lawyer, in defending his client, to employ only such means as are consistent with truth and honor. He should not prosecute patently frivolous and meritless appeals or institute clearly groundless actions. The recital of what the respondent did to prevent the execution of the judgment against his clients shows that he actually committed what the above rule expressly prohibits.
Maligning the name of his fellow lawyers
To support the charge of extrinsic fraud in his petition for annulment of judgment, the respondent attacked (as quoted above) the name and reputation of the late Atty. Catolico and accused him of deliberate neglect, corrupt motives and connivance with the counsel for the adverse party.
We find it significant that the respondent failed to demonstrate how he came upon his accusation against Atty. Catolico. The respondent, by his own admission, only participated in the cases previously assigned to Atty. Catolico after the latter died. At the same time, the respondent's petition for annulment of judgment also represented that no second motion for reconsideration or appeal was filed to contest the MeTC and RTC decisions in the unlawful detainer case for the reason that the respondent believed the said decisions were null and void ab initio.
Under these circumstances, we believe that the respondent has been less than fair in his professional relationship with Atty. Catolico and is thus liable for violating Canon 8 of the Code of Professional Responsibility, which obligates a lawyer to "conduct himself with courtesy, fairness, and candor toward his professional colleagues." He was unfair because he imputed wrongdoing to Atty. Catolico without showing any factual basis therefor; he effectively maligned Atty. Catolico, who is now dead and unable to defend himself.
Unauthorized appearances
We support Investigating Commissioner Cunanan's finding that the respondent twice represented parties without proper authorization: first, in the petition for annulment of judgment; and second, in the second petition for annulment of title.
In the first instance, the records show that the respondent filed the petition for annulment of judgment on behalf of 49 individuals, 31 of whom gave their consent while the other 15 individuals did not. We cannot agree with the respondent's off-hand explanation that he truly believed that a majority of the litigants who signed the certification of non-forum shopping in the petition already gave him the necessary authority to sign for the others. We find it highly improbable that this kind of lapse could have been committed by a seasoned lawyer like the respondent, who has been engaged in the practice of law for more than 30 years and who received rigid and strict training
as he so proudly declares, from the University of the Philippines College of Law and in the two law firms with which he was previously associated. As Investigating Commissioner Cunanan found, the respondent's explanation of compliance with the rule on the certification of non-forum shopping glossed over the real charge of appearing in court without the proper authorization of the parties he allegedly represented.
In the second instance, which occurred in the second complaint for annulment of title, the respondent knew that only the Solicitor General can legally represent the Republic of the Philippines in actions for reversion of land. Nevertheless, he filed an amended petition where he impleaded the Republic of the Philippines as plaintiff without its authority and consent, as a surreptitious way of forcing the Republic to litigate. Notably, he signed the amended complaint on behalf of all the plaintiffs – his clients and the Republic.
In both instances, the respondent violated Sections 21 and 27, Rule 138 of the Rules of Court when he undertook the unauthorized appearances. The settled rule is that a lawyer may not represent a litigant without authority from the latter or from the latter's representative or, in the absence thereof, without leave of court. The willful unauthorized appearance by a lawyer for a party in a given case constitutes contumacious conduct and also warrants disciplinary measures against the erring lawyer for professional misconduct.
The Respondent's Defenses
We find no merit in the respondent's defenses.
"Good faith connotes an honest intention to abstain from taking unconscientious advantage of another. Accordingly, in University of the East v. Jader we said that "[g]ood faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of law, together with the absence of all information or belief of facts, would render the transaction unconscientious." Bad faith, on the other hand, is a state of mind affirmatively operating with furtive design or with some motive of self-interest, ill will or for an ulterior purpose. As both concepts are states of mind, they may be deduced from the attendant circumstances and, more particularly, from the acts and statements of the person whose state of mind is the subject of inquiry.
In this case, we find that the respondent acted in bad faith in defending the interests of his clients. We draw this conclusion from the misrepresentations and the dubious recourses he made, all obviously geared towards forestalling the execution of the final judgments of the MeTC and RTC. That he took advantage of his legal knowledge and experience and misread the Rules immeasurably strengthen the presence of bad faith.
We find neither sincerity nor honest belief on the part of the respondent in pleading the soundness and merit of the cases that he filed in court to prevent the execution of the MeTC and RTC decisions, considering his own conduct of presenting conflicting theories in his petitions. The succession of cases he filed shows a desperation that negates the sincere and honest belief he claims; these are simply scattershot means to achieve his objective of avoiding the execution of the unlawful detainer judgment against his clients.
On the respondent's allegations regarding his discretion to determine legal strategy, it is not amiss to note that this was the same defense he raised in the first disbarment case. As we explained in Plus Builders, the exercise of a lawyer's discretion in acting for his client can never be at the expense of
truth and justice. In the words of this cited case:
While a lawyer owes absolute fidelity to the cause of his client, full devotion to his genuine interest, and warm zeal in the maintenance and defense of his rights, as well as the exertion of his utmost learning and ability, he must do so only within the bounds of the law. He must give a candid and honest opinion on the merits and probable results of his client's case with the end in view of promoting respect for the law and legal processes, and counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law. He must always remind himself of the oath he took upon admission to the Bar that he 'will not wittingly or willingly promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same'; and that he 'will conduct [himself] as a lawyer according to the best of [his] knowledge and discretion with all good fidelity as well to the courts as to [his] clients.' Needless to state, the lawyer's fidelity to his client must not be pursued at the expense of truth and the administration of justice, and it must be done within the bounds of reason and common sense. A lawyer's responsibility to protect and advance the interests of his client does not warrant a course of action propelled by ill motives and malicious intentions against the other party.
We cannot give credence to the respondent's claim that the disbarment case was filed because the counsel of the complainant, Atty. Uy, had an axe to grind against him. We reject this argument, considering that it was not Atty. Uy who filed the present disbarment case against him; Atty. Uy is only the counsel in this case. In fact, Atty. Uy has filed his own separate disbarment case against the respondent.
The sui generis nature of a disbarment case renders the underlying motives of the complainants unimportant and with very little relevance. The purpose of a disbarment proceeding is mainly to determine the fitness of a lawyer to continue acting as an officer of the court and a participant in the dispensation of justice – an issue where the complainant's personal motives have little relevance. For this reason, disbarment proceedings may be initiated by the Court motu proprio upon information of an alleged wrongdoing. As we also explained in the case In re: Almacen:
. . .disciplinary proceedings like the present are sui generis. Neither purely civil nor purely criminal, this proceeding is not - and does not involve - a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution.
x x x
It may be initiated by the Court motu
proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of-the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.
Filipino elected panel head of UN Human Rights body
Filipino elected panel head of UN Human Rights body - INQUIRER.net, Philippine News for Filipinos
A FILIPINO authority on human rights has been unanimously elected chairperson of the Advisory Committee of the United Nations Human Rights Council in Geneva, Switzerland.
I am happy for Madame P. Quisumbing's new work, although I am not impressed by her track record as past chairperson of the Philippine Human Rights Commission.
At any rate, her new role brings honor to the country. For which she deserves some recognition.
A FILIPINO authority on human rights has been unanimously elected chairperson of the Advisory Committee of the United Nations Human Rights Council in Geneva, Switzerland.
I am happy for Madame P. Quisumbing's new work, although I am not impressed by her track record as past chairperson of the Philippine Human Rights Commission.
At any rate, her new role brings honor to the country. For which she deserves some recognition.
Sunday, July 11, 2010
Homeowners' rights
Republic Act No. 9904 - AN ACT PROVIDING FOR A MAGNA CARTA FOR HOMEOWNERS AND HOMEOWNERS’ ASSOCIATIONS, AND FOR OTHER PURPOSES
Salient parts:
Section 1. Title. – This Act shall be known as the "Magna Carta for Homeowners and Homeowners’ Associations".
Section 3. Definition of Terms. - For purposes of this Act, the following terms shall mean:
(b) "Association" refers to the homeowners’ association which is a nonstick, nonprofit corporation registered with the Housing and Land Use Regulatory Board (HLURB), or one previously registered with the Home Insurance Guarantee Corporation (now Home Guaranty Corporation) or the Securities and Exchange Commission (SEC), organized by owners or purchasers of a lot in a subdivision/village or other residential real property located within the jurisdiction of the association; or awardees, usufructuaries, legal occupants and/or lessees of a housing unit and/or lot in a government socialized or economic housing or relocation project and other urban estates; or underprivileged and homeless citizens as defined under existing laws in the process of being accredited as usufructuaries or awardees of ownership rights under the Community Mortgage Program (CMP), Land Tenure Assistance Program (LTAP) and other similar programs in relation to a socialized housing project actually being Implemented by the national government or the LGU.
(c) "Association member" refers to a homeowner who is a member of the association where his/her housing unit or lot is situated and those defined in the articles of incorporation and bylaws of the association.
(j) "Homeowner" refers to any of the following;
(1) An owner or purchaser of a lot in a subdivision/village;
(2) An awardee, usufructuary, or legal occupant of a unit, house and/or lot in a government socialized or economic housing or relocation project and other urban estates; or
(3) An informal settler in the process of being accredited as beneficiary or awardee of ownership rights under the CMP, LTAP, and other similar programs.
(k) "Residential real property" refers to any real property, the use of which is limited by law to primarily residential purposes.
(l) "Simple majority" refers to fifty percent (50%) plus one (1) of the total number of association members.
Section 4. Registration with the HLURB. - Every association of homeowners shall be required to register with the HLURB. This registration shall serve to grant juridical personality to all such associations that have not previously acquired the same by operation of the General Corporation Law or by any other general law.
The procedure for registration shall be specifically provided for in the implementing rules and regulations to be promulgated by the HLURB pursuant to Section 28 of this Act.1avvphi1 Such procedure shall provide for an adjudicatory mechanism that will be observed in the event there is a dispute involving two (2) or more associations established within the same subdivision/village), community/area, or housing project seeking registration. In resolving this type of dispute, the HLURB shall take into account the date each association was legally established, the date of submission of its application for registration, the number of members, and other similar factors.
The existence of associations previously registered with the Home Insurance Guarantee Corporation or the SEC shall be respected, and the said associations shall not be charged a penalty when they register with the HLURB after this Act takes effect.
Section 5. Rights and Duties of Every Homeowner. - Every homeowner has the right to enjoy the basic community services and facilities: Provided, That he/she pays the necessary fees and other pertinent charges.
Section 6. Qualification of a Member. - A homeowner as defined under this Act shall be qualified to be a member of an association: Provided, however, That a lessee, usufructuary, or legal occupant shall have the right of a homeowner as set forth under this Act upon procurement of a written consent or authorization from the owner of the lot or housing unit.
Until such consent or authorization is revoked in writing, the owner of the lot or housing unit is deemed to have waived his/her rights enumerated under Section 7 of this Act, except subsection (b) of the same section which can be simultaneously enjoyed by both the owner and the lessee.
For purposes of this Act, the lessee authorized in accordance with this sect shall qualify as a member with all the rights enumerated in this Act, including the duties and obligations enumerated under Sections 7, 8 and 9 hereof: Provided, further, That lessees in government socialized housing projects or urban estates and those in communities of underprivileged and homeless citizens covered under the term under Section 3 of this Act will be considered as homeowners for the purpose of qualifying as a member of a homeowners' association without need of such written consent or authorization.
Section 7. Rights of a Member. - An association member has full rights:
(a) to avail of and enjoy all basic community services and the use of common areas and facilities;
(b) to inspect association books and records during office hours and to be provided upon request with annual reports, including financial statements;
(c) to participate, vote and be eligible for any elective or appointive office of the association subject to the qualifications as provided for in the bylaws;
(d) to demand and promptly receive deposits required by the association as soon as the condition for the deposit has been complied with or the period has expired;
(e) to participate in association meetings, elections and referenda, as long as his/her bona fide membership subsists; and
(f) to enjoy all other rights as may be provided for in the association bylaws.
Section 8. Duties of a Member. - A member shall have the following duties:
(a) to pay membership fees, dues and special assessments;
(b) to attend meetings of the association; and
(c) to support and participate In projects and activities of the association.
Section 9. Delinquent Member. - The bylaws shall provide for guidelines and procedures in determining who is a delinquent member, or a member not in good standing, and to prescribe the administrative sanctions to be imposed on such member. The right to due process shall be observed in cases where administrative sanctions are imposed on a delinquent member.
Section 10. Rights and Powers of the Association. - An association shall have the following rights and shall exercise the following powers:
(a) Subject to consultation and with the approval of a simple majority of the members, adopt and amend the articles of incorporation and bylaws, rules and regulations, pursuant to existing laws and regulations;
(b) In behalf of its members, institute, defend, or intervene in litigation and/or administrative proceedings affecting the welfare of the association and the subdivision/village as a whole, excluding, however, disputes that are not the responsibility of the association;
(c) Regulate the use, maintenance, repair, replacement and modification of common areas and cause additional improvements to be made part of the common areas: Provided, That the aforementioned do not contradict the provisions of the approved subdivision plan;
(d) Regulate access to, or passage through the subdivision/village roads for purposes of preserving privacy, tranquility, internal security, and safety and traffic order: Provided, That: (1) public consultations are held; (2) existing laws and regulations are met; (3) the authority of the concerned government agencies or units are obtained; and (4) the appropriate and necessary memoranda of agreement are executed among the concerned parties;
(e) Hire, discharge or contract managing agents and other employees, agents and independent contractors to ensure the full functioning and operation of the association;
(I) Subject to consultation with and the approval of a simple majority of the association members, acquire, hold, encumber and convey in its own name any right, title to or interest in real or personal property: Provided, That such approval of a simple majority of the association members shall not be required for the acquisition, holding, encumbrance and conveyance of personal properties in amounts not exceeding ten percent (10%) of the association’s cash holdings for its use in the course of its normal operations;
(g) Ensure the availability of quality water services at a reasonable price and at its option, administer and manage the waterworks system of the subdivision;
(h) Upon consultation, grant easements, leases, concessions and authority to use common areas and petition for or consent to the vacation of streets and alleys: Provided, That the said grant of easements, leases, concessions and authority shall not be applicable to access roads, main interconnecting roads, alleys and sidewalks within the subdivision;
(i) Impose or collect reasonable fees for the use of open spaces, facilities, and services of the association to defray necessary operational expenses, subject to the limitations and conditions imposed under the law, the regulations of the board and the association’s bylaws;
(j) Cause compliance with regard to height regulations, easements, use of homes, buildings, edifices, or structures that may be built within the subdivision, in accordance with the National Building Code, zoning laws, HLURB rules and regulations, existing local ordinances, and existing deeds of restriction;
(k) Subject to consultation and with the approval of a simple majority of the association members, allow the establishment of certain institutions such as, but not limited to, schools, hospitals, markets, grocery stores and other similar establishments that will necessarily affect the character of the subdivision/village in terms of traffic generation, and/or opening the area to outsiders which may result in the loss of privacy, security, safety, and tranquility to its residents, in accordance with the National Building Code, zoning laws, existing local ordinances, HLURB rules and regulations, and existing jurisprudence: Provided, That such prior approval shall not be necessary for the establishment of sari - sari stores, home industries and similar small - scale business enterprises within the subdivision/village classified as socialized housing;
(l) Suspend privileges of and services to and/or impose sanctions upon its members for violations and/or noncompliance with the association's bylaws, and rules and regulations;
(m) Petition for the creation of a separate barangay, independently or together with neighboring subdivisions: Provided, That all the requirements of the Local Government Code of 1991 are met; and
(n) Exercise any other powers conferred by the bylaws and the HLURB necessary for the governance and operation of the association.
Section 11. Board of Directors or Trustees. - The bylaws of the association shall provide for the qualifications and number of the directors or trustees that will comprise the board.
Section 12. Duties and Responsibilities of the Board. In addition to the duties and responsibilities stated in the bylaws of the association, the board shall have the following duties and responsibilities:
(a) Regularly maintain an accounting system using generally accepted accounting principles, and keep books of accounts, which shall be open for inspection to any homeowner and duly authorized representatives of government agencies upon request, during reasonable hours, on business days;
(b) Collect the fees, dues and assessments that may be provided for in the bylaws and approved by a majority of the members;
(c) Collect reasonable charges for assessments, and after due notice and hearing by the board in accordance with the procedures as provided in the bylaws, and rules and regulations adopted by the board, charge reasonable fines for late payments and for violation of the bylaws, rules, and regulations of the association, in accordance with a previously established schedule adopted by the board and furnished to the homeowners;
(d) Propose measures to raise funds and the utilization of such funds and submit the same for consideration of the members of the association;
(e) Undergo a free orientation by the HLURB or any other competent agency deputized by it on how to conduct meetings, preparation of minutes, handling of accounts, laws and pertinent rules and regulations within thirty (30) days after election or appointment;
(f) Discharge the duties and responsibilities provided for in the association’s bylaws; and
(g) Exercise such other powers as may be necessary and proper in accordance with this Act and for the accomplishment of the purposes for which the association was organized.
The board shall act in all instances on behalf of the association, except to amend the articles of incorporation, to dissolve the association, to elect members of the board or to determine the qualifications, powers and duties, or terms of office of the board, and other instances that require the vote or approval of the members themselves. In the performance of their duties, the officers and members of the board shall exercise the degree of care and loyalty required by such position.
Section 13. Removal of a Director or Trustee. - Through a signed petition of a simple majority of the association members in good standing, subject to a verification and validation by the HLURB, a director/trustee may be removed for causes provided in the bylaws of the association: Provided, That if a majority of the members of the board is removed, it shall be considered a dissolution of the entire board, in which case, Section 14 hereof shall govern.
Within sixty (60) days after the removal of a director or trustee, an election shall be called by the remainder of the board for the purpose of determining who shall hold office for the unexpired term of the removed director/trustee.
Section 14. Dissolution of the Board. - Through a signed petition of two - thirds (2/3) of the association members subject to a verification and validation by the HLURB, the board of the association may be dissolved for causes provided in the bylaws of the association.
Within sixty (60) days from the above dissolution, an election for a new board shall be called and conducted by the HLURB for the purpose of determining who shall hold office for the unexpired term of the dissolved board.
Until the new board members shall have been elected and qualified, the HLURB shall designate an interim board: Provided, That such board shall be composed of association members in good standing: Provided, further, That such interim board members shall not be eligible to run in the election called for the purpose of replacing the members of the dissolved board.
Section 15. Association Bylaws. - The bylaws of the association shall be adopted by a simple majority of the members of the association. Consistent with the provisions of this Act, it shall provide for:
(a) The rights, duties and obligations of members;
(b) The circumstances under which membership is acquired, maintained, and lost;
(c) The schedule, venue, and manner of conducting the regular, special, and emergency meetings of the general membership, the required quorum, and allowable proxies in such meetings;
(d) The number, qualifications, powers and duties, terms of office, manner of electing and removing the board and the filling of vacancies in the board: Provided, That the term of office of the members of the board shall not exceed two (2) years;
(e) The qualifications, positions, duties, election or appointment, and compensation of other officers and employees of the association: Provided, That the term of office of the other officers shall not exceed two (2) years: Provided, further, That no officer of the association holding a rank of director or trustee shall likewise be entitled to any compensation;
(f) The schedule, venue, and manner of conducting the regular, special, and emergency meetings of the board, the required quorum, and allowable proxies in such meetings;
(g) Such powers that the board may delegate to a managing agent, if any, or to other persons;
(h) Which of its officers may prepare, execute, certify and record amendments to the governing documents on behalf of the association;
(i) The grounds and procedure for removal of director or trustee, and the manner of filling up vacancies in the board, consistent with Section 13 of this Act;
(j) The grounds and procedure for dissolution of the board, and the manner of reconstituting the board, consistent with Sections 13 and 14 of this Act;
(k) The actions for limiting, broadening or denying the right to vote, and the extent thereof;
(I) The designation of the presiding officer at meetings of directors or trustees and members;
(m) The time for holding the regular election of directors or trustees and the mode or manner of giving notice thereof;
(n) The creation of election, grievance and audit committees, and such other committees which the association may deem necessary; as well as a conciliation or mediation mechanism for the amicable settlement of disputes among members, directors or trustees, officers and committee members of the association;
(o) The dues, fees, and special assessments to be imposed on a regular basis, and the manner in which the same may be imposed and/or increased;
(p) The method of adopting, amending, repealing and abrogating the bylaws;
(q) The list of acts constituting a violation by its officers and the corresponding penalties therefor;
(r) The penalties for violation of the bylaws; and
(s) Such other matters necessary for the proper or convenient transaction of its corporate business and affairs.
Section 16. Proxies. - Association members may vote in person or by proxy in all meetings of members. Proxies shall be in writing, signed by the member and filed before the scheduled meeting with the association secretary. Unless otherwise provided in the proxy, it shall be valid only for the meeting for which it is intended, No proxy shall be valid and effective for a period longer than three (3) years at anyone time unless earlier revoked by the member.
Section 17. Financial and Other Records. - The homeowners’ association is enjoined to observe the following, with regard to its funds, financial and other records:
(a) The association or its managing agent shall keep financial and other records sufficiently detailed to enable the association to fully declare to each member the true statement of its financial status. All financial and other records of the association including, but not limited to, checks, bank records and invoices, in whatever form these are kept, are the property of the association. Each association’s managing agent shall turn over all original books and records to the association immediately upon termination of the management relationship with the association, or upon such other demand as is made by the board. An association’s managing agent is entitled to keep association records. All records which the managing agent has turned over to the association shall be made reasonably available for the examination and copying by the managing agent;
(b) All records involving the affairs of the association shall be available for examination by all owners, holders of mortgages on the lots, and their respective authorized agents upon reasonable advanced notice, during normal working hours at the office of the association: Provided, That holders of mortgages on lots may have access to the information about the property held in mortgage with the written consent of the registered owner;
(c) A financial statement of the association shall be prepared annually by an auditor, the treasurer and/or an independent certified public accountant within ninety (90) days from the end of the accounting period to be posted in the association office, bulletin boards, or other conspicuous places within the subdivision/village, and to be submitted to the HLURB; and
(d) The funds of the association shall be kept in accounts in the name of the association and shall not be joined with the funds of any other association, or any person responsible for the custody of such funds.
Section 18. Relationship with LGUs. - Homeowners' associations shall complement, support and strengthen LGUs in providing vital services to their members and help implement local government policies, programs, ordinances, and rules.
Associations are encouraged to actively cooperate with LGUs in furtherance of their common goals and activities for the benefit of the residents of the subdivisions/villages and their environs.
Where the LGUs lack resources to provide for basic services, the associations shall endeavor to tap the means to provide for the same. In recognition of the associations’ efforts to assist the LGUs III providing such basic services, association dues and income derived from rentals of their facilities shall be tax - exempt: Provided, That such income and dues shall be used for the cleanliness, safety, security and other basic services needed by the members, including the maintenance of the facilities of their respective subdivisions or villages.
LGUs shall, upon due notice, hold public consultations with the members of the affected associations, especially their officers and directors, where proposed rules, zoning and other ordinances, projects and/or programs affecting their jurisdiction and surrounding vicinity are to be implemented prior to the effectivity or implementation of such rules, zoning, ordinances, projects or programs: Provided, That in cases of zonal reclassification, the approval of a simple majority of homeowners shall be required.
Such public consultations shall conform to the manner as specified in Rule XI, Article 54 of the implementing rules and regulations of Republic Act No. 7160, otherwise known as the Local Government Code of 1991.
Section 20. Duties and Responsibilities of the HLURB. - In addition to the powers, authorities and responsibilities vested in it by Republic Act No. 8763, Presidential Decree No. 902 - A, Batas Pambansa Big. 68 and Executive Order No. 535, Series of 1981, as amended, the HLURB shall:
(a) Regularly conduct free orientation for officers of homeowners’ associations or deputize another competent agency to conduct the orientation;
(b) Formulate and publish a Code of Ethics and Ethical Standards for board members detailing prohibited conflicts of interest;
(c) Register all associations, federations, confederations or umbrella organizations of the associations;
(d) Hear and decide inter - association and/or inter - association controversies and/or conflicts, without prejudice to filing civil and criminal cases by the parties concerned before the regular courts: Provided, That all decisions of the HLURB are appealable directly to the Court of Appeals;
(e) Formulate the rules or manner of verification and validation of petitions for the removal of director(s) or trustee(s) of the association or dissolution of the board pursuant to Sections 13 and 14 of this Act;
(f) Exercise the same powers over federations, confederations or umbrella organizations of the associations;
(g) Formulate, in consultation with the representatives of associations, federations, confederations or umbrella organizations of the associations, standard nomenclatures to be used for the associations' books of accounts, and a standard articles of incorporation and bylaws for homeowners' association for reference purposes;
(h) Formulate, in consultation with the representatives of associations, federations, confederations or umbrella organizations of the associations, the guidelines in regulating the kinds of contributions and fees that may be charged and/or collected by associations; and
(i) Call upon the Philippine National Police, other law enforcement agencies, and other instrumentalities of the government, if necessary, for the enforcement of its functions.
Section 21. Additional Positions and Personnel for the HLURB. - For purposes of this Act, the HLURB shall, upon its discretion, create positions and enlist additional personnel to carry out its mandate.
Section 22. Prohibited Acts. - It shall be prohibited for any person:
(a) To compel a homeowner to join the association, without prejudice to the provisions of the deed of restrictions, its extensions or renewals as approved by the majority vote of the members or as annotated on the title of the property; the contract for the purchase of a lot in the subdivision project; or an award under a CMP project or a similar tenurial arrangement;
(b) To deprive any homeowner of his/her right to avail of or enjoy basic community services and facilities where he/she has paid the dues, charges, and other fees for such services;
(c) To prevent any homeowner who has paid the required fees and charges from reasonably exercising his/her right to inspect association books and records;
(d) To prevent any member in good standing from participating in association meetings, elections and referenda;
(e) To deny any member due process in the imposition of administrative sanctions;
(f) To exercise rights and powers as stated m Section 10 in violation of the required consultation and approval of the required number of homeowners or members;
(g) To unreasonably fail to provide basic community services and facilities and maintain, repair, replace, or modify such facilities;
(h) To unreasonably fail to comply with Section 17 of this Act; or
(i) To violate any other provision of this Act.
Section 23. Penalties and Sanctions. - Any person who, intentionally or by gross negligence, violates any provision of this Act, fails to perform his/her functions under this Act and/or violates the rights of the members, shall be punished with a fine of not less than Five thousand pesos (Php5, 000.00) but not more than Fifty thousand pesos
(Php50, 000.00) and permanent disqualification from being elected or appointed as member of the board, officer or employee of the association, without prejudice to being charged before a regular court for violations of the provisions of the Revised Penal Code, Civil Code and other pertinent laws.
If the violation is committed by the association, the members, officers, directors or trustees of the association who have actually participated in, authorized, or ratified the prohibited act shall be held liable.
If the violation is committed by the employees and agents who acted in gross violation of the provisions of this Act, the officers, directors or trustees, or incorporators of the association shall be jointly and severally liable with the offending employees, agents, and the association.1avvphi1
Section 24. Review of Association's Bylaws. - In order to comply with the provisions of this Act, the homeowners' association shall, within six (6) months from the effectivity of this Act, conduct a review of its bylaws, draft its own rules of procedure to be incorporated in the bylaws and conduct a plebiscite for the approval of the members of the association. A simple majority shall be used to determine the approval of the bylaws.
Salient parts:
Section 1. Title. – This Act shall be known as the "Magna Carta for Homeowners and Homeowners’ Associations".
Section 3. Definition of Terms. - For purposes of this Act, the following terms shall mean:
(b) "Association" refers to the homeowners’ association which is a nonstick, nonprofit corporation registered with the Housing and Land Use Regulatory Board (HLURB), or one previously registered with the Home Insurance Guarantee Corporation (now Home Guaranty Corporation) or the Securities and Exchange Commission (SEC), organized by owners or purchasers of a lot in a subdivision/village or other residential real property located within the jurisdiction of the association; or awardees, usufructuaries, legal occupants and/or lessees of a housing unit and/or lot in a government socialized or economic housing or relocation project and other urban estates; or underprivileged and homeless citizens as defined under existing laws in the process of being accredited as usufructuaries or awardees of ownership rights under the Community Mortgage Program (CMP), Land Tenure Assistance Program (LTAP) and other similar programs in relation to a socialized housing project actually being Implemented by the national government or the LGU.
(c) "Association member" refers to a homeowner who is a member of the association where his/her housing unit or lot is situated and those defined in the articles of incorporation and bylaws of the association.
(j) "Homeowner" refers to any of the following;
(1) An owner or purchaser of a lot in a subdivision/village;
(2) An awardee, usufructuary, or legal occupant of a unit, house and/or lot in a government socialized or economic housing or relocation project and other urban estates; or
(3) An informal settler in the process of being accredited as beneficiary or awardee of ownership rights under the CMP, LTAP, and other similar programs.
(k) "Residential real property" refers to any real property, the use of which is limited by law to primarily residential purposes.
(l) "Simple majority" refers to fifty percent (50%) plus one (1) of the total number of association members.
Section 4. Registration with the HLURB. - Every association of homeowners shall be required to register with the HLURB. This registration shall serve to grant juridical personality to all such associations that have not previously acquired the same by operation of the General Corporation Law or by any other general law.
The procedure for registration shall be specifically provided for in the implementing rules and regulations to be promulgated by the HLURB pursuant to Section 28 of this Act.1avvphi1 Such procedure shall provide for an adjudicatory mechanism that will be observed in the event there is a dispute involving two (2) or more associations established within the same subdivision/village), community/area, or housing project seeking registration. In resolving this type of dispute, the HLURB shall take into account the date each association was legally established, the date of submission of its application for registration, the number of members, and other similar factors.
The existence of associations previously registered with the Home Insurance Guarantee Corporation or the SEC shall be respected, and the said associations shall not be charged a penalty when they register with the HLURB after this Act takes effect.
Section 5. Rights and Duties of Every Homeowner. - Every homeowner has the right to enjoy the basic community services and facilities: Provided, That he/she pays the necessary fees and other pertinent charges.
Section 6. Qualification of a Member. - A homeowner as defined under this Act shall be qualified to be a member of an association: Provided, however, That a lessee, usufructuary, or legal occupant shall have the right of a homeowner as set forth under this Act upon procurement of a written consent or authorization from the owner of the lot or housing unit.
Until such consent or authorization is revoked in writing, the owner of the lot or housing unit is deemed to have waived his/her rights enumerated under Section 7 of this Act, except subsection (b) of the same section which can be simultaneously enjoyed by both the owner and the lessee.
For purposes of this Act, the lessee authorized in accordance with this sect shall qualify as a member with all the rights enumerated in this Act, including the duties and obligations enumerated under Sections 7, 8 and 9 hereof: Provided, further, That lessees in government socialized housing projects or urban estates and those in communities of underprivileged and homeless citizens covered under the term under Section 3 of this Act will be considered as homeowners for the purpose of qualifying as a member of a homeowners' association without need of such written consent or authorization.
Section 7. Rights of a Member. - An association member has full rights:
(a) to avail of and enjoy all basic community services and the use of common areas and facilities;
(b) to inspect association books and records during office hours and to be provided upon request with annual reports, including financial statements;
(c) to participate, vote and be eligible for any elective or appointive office of the association subject to the qualifications as provided for in the bylaws;
(d) to demand and promptly receive deposits required by the association as soon as the condition for the deposit has been complied with or the period has expired;
(e) to participate in association meetings, elections and referenda, as long as his/her bona fide membership subsists; and
(f) to enjoy all other rights as may be provided for in the association bylaws.
Section 8. Duties of a Member. - A member shall have the following duties:
(a) to pay membership fees, dues and special assessments;
(b) to attend meetings of the association; and
(c) to support and participate In projects and activities of the association.
Section 9. Delinquent Member. - The bylaws shall provide for guidelines and procedures in determining who is a delinquent member, or a member not in good standing, and to prescribe the administrative sanctions to be imposed on such member. The right to due process shall be observed in cases where administrative sanctions are imposed on a delinquent member.
Section 10. Rights and Powers of the Association. - An association shall have the following rights and shall exercise the following powers:
(a) Subject to consultation and with the approval of a simple majority of the members, adopt and amend the articles of incorporation and bylaws, rules and regulations, pursuant to existing laws and regulations;
(b) In behalf of its members, institute, defend, or intervene in litigation and/or administrative proceedings affecting the welfare of the association and the subdivision/village as a whole, excluding, however, disputes that are not the responsibility of the association;
(c) Regulate the use, maintenance, repair, replacement and modification of common areas and cause additional improvements to be made part of the common areas: Provided, That the aforementioned do not contradict the provisions of the approved subdivision plan;
(d) Regulate access to, or passage through the subdivision/village roads for purposes of preserving privacy, tranquility, internal security, and safety and traffic order: Provided, That: (1) public consultations are held; (2) existing laws and regulations are met; (3) the authority of the concerned government agencies or units are obtained; and (4) the appropriate and necessary memoranda of agreement are executed among the concerned parties;
(e) Hire, discharge or contract managing agents and other employees, agents and independent contractors to ensure the full functioning and operation of the association;
(I) Subject to consultation with and the approval of a simple majority of the association members, acquire, hold, encumber and convey in its own name any right, title to or interest in real or personal property: Provided, That such approval of a simple majority of the association members shall not be required for the acquisition, holding, encumbrance and conveyance of personal properties in amounts not exceeding ten percent (10%) of the association’s cash holdings for its use in the course of its normal operations;
(g) Ensure the availability of quality water services at a reasonable price and at its option, administer and manage the waterworks system of the subdivision;
(h) Upon consultation, grant easements, leases, concessions and authority to use common areas and petition for or consent to the vacation of streets and alleys: Provided, That the said grant of easements, leases, concessions and authority shall not be applicable to access roads, main interconnecting roads, alleys and sidewalks within the subdivision;
(i) Impose or collect reasonable fees for the use of open spaces, facilities, and services of the association to defray necessary operational expenses, subject to the limitations and conditions imposed under the law, the regulations of the board and the association’s bylaws;
(j) Cause compliance with regard to height regulations, easements, use of homes, buildings, edifices, or structures that may be built within the subdivision, in accordance with the National Building Code, zoning laws, HLURB rules and regulations, existing local ordinances, and existing deeds of restriction;
(k) Subject to consultation and with the approval of a simple majority of the association members, allow the establishment of certain institutions such as, but not limited to, schools, hospitals, markets, grocery stores and other similar establishments that will necessarily affect the character of the subdivision/village in terms of traffic generation, and/or opening the area to outsiders which may result in the loss of privacy, security, safety, and tranquility to its residents, in accordance with the National Building Code, zoning laws, existing local ordinances, HLURB rules and regulations, and existing jurisprudence: Provided, That such prior approval shall not be necessary for the establishment of sari - sari stores, home industries and similar small - scale business enterprises within the subdivision/village classified as socialized housing;
(l) Suspend privileges of and services to and/or impose sanctions upon its members for violations and/or noncompliance with the association's bylaws, and rules and regulations;
(m) Petition for the creation of a separate barangay, independently or together with neighboring subdivisions: Provided, That all the requirements of the Local Government Code of 1991 are met; and
(n) Exercise any other powers conferred by the bylaws and the HLURB necessary for the governance and operation of the association.
Section 11. Board of Directors or Trustees. - The bylaws of the association shall provide for the qualifications and number of the directors or trustees that will comprise the board.
Section 12. Duties and Responsibilities of the Board. In addition to the duties and responsibilities stated in the bylaws of the association, the board shall have the following duties and responsibilities:
(a) Regularly maintain an accounting system using generally accepted accounting principles, and keep books of accounts, which shall be open for inspection to any homeowner and duly authorized representatives of government agencies upon request, during reasonable hours, on business days;
(b) Collect the fees, dues and assessments that may be provided for in the bylaws and approved by a majority of the members;
(c) Collect reasonable charges for assessments, and after due notice and hearing by the board in accordance with the procedures as provided in the bylaws, and rules and regulations adopted by the board, charge reasonable fines for late payments and for violation of the bylaws, rules, and regulations of the association, in accordance with a previously established schedule adopted by the board and furnished to the homeowners;
(d) Propose measures to raise funds and the utilization of such funds and submit the same for consideration of the members of the association;
(e) Undergo a free orientation by the HLURB or any other competent agency deputized by it on how to conduct meetings, preparation of minutes, handling of accounts, laws and pertinent rules and regulations within thirty (30) days after election or appointment;
(f) Discharge the duties and responsibilities provided for in the association’s bylaws; and
(g) Exercise such other powers as may be necessary and proper in accordance with this Act and for the accomplishment of the purposes for which the association was organized.
The board shall act in all instances on behalf of the association, except to amend the articles of incorporation, to dissolve the association, to elect members of the board or to determine the qualifications, powers and duties, or terms of office of the board, and other instances that require the vote or approval of the members themselves. In the performance of their duties, the officers and members of the board shall exercise the degree of care and loyalty required by such position.
Section 13. Removal of a Director or Trustee. - Through a signed petition of a simple majority of the association members in good standing, subject to a verification and validation by the HLURB, a director/trustee may be removed for causes provided in the bylaws of the association: Provided, That if a majority of the members of the board is removed, it shall be considered a dissolution of the entire board, in which case, Section 14 hereof shall govern.
Within sixty (60) days after the removal of a director or trustee, an election shall be called by the remainder of the board for the purpose of determining who shall hold office for the unexpired term of the removed director/trustee.
Section 14. Dissolution of the Board. - Through a signed petition of two - thirds (2/3) of the association members subject to a verification and validation by the HLURB, the board of the association may be dissolved for causes provided in the bylaws of the association.
Within sixty (60) days from the above dissolution, an election for a new board shall be called and conducted by the HLURB for the purpose of determining who shall hold office for the unexpired term of the dissolved board.
Until the new board members shall have been elected and qualified, the HLURB shall designate an interim board: Provided, That such board shall be composed of association members in good standing: Provided, further, That such interim board members shall not be eligible to run in the election called for the purpose of replacing the members of the dissolved board.
Section 15. Association Bylaws. - The bylaws of the association shall be adopted by a simple majority of the members of the association. Consistent with the provisions of this Act, it shall provide for:
(a) The rights, duties and obligations of members;
(b) The circumstances under which membership is acquired, maintained, and lost;
(c) The schedule, venue, and manner of conducting the regular, special, and emergency meetings of the general membership, the required quorum, and allowable proxies in such meetings;
(d) The number, qualifications, powers and duties, terms of office, manner of electing and removing the board and the filling of vacancies in the board: Provided, That the term of office of the members of the board shall not exceed two (2) years;
(e) The qualifications, positions, duties, election or appointment, and compensation of other officers and employees of the association: Provided, That the term of office of the other officers shall not exceed two (2) years: Provided, further, That no officer of the association holding a rank of director or trustee shall likewise be entitled to any compensation;
(f) The schedule, venue, and manner of conducting the regular, special, and emergency meetings of the board, the required quorum, and allowable proxies in such meetings;
(g) Such powers that the board may delegate to a managing agent, if any, or to other persons;
(h) Which of its officers may prepare, execute, certify and record amendments to the governing documents on behalf of the association;
(i) The grounds and procedure for removal of director or trustee, and the manner of filling up vacancies in the board, consistent with Section 13 of this Act;
(j) The grounds and procedure for dissolution of the board, and the manner of reconstituting the board, consistent with Sections 13 and 14 of this Act;
(k) The actions for limiting, broadening or denying the right to vote, and the extent thereof;
(I) The designation of the presiding officer at meetings of directors or trustees and members;
(m) The time for holding the regular election of directors or trustees and the mode or manner of giving notice thereof;
(n) The creation of election, grievance and audit committees, and such other committees which the association may deem necessary; as well as a conciliation or mediation mechanism for the amicable settlement of disputes among members, directors or trustees, officers and committee members of the association;
(o) The dues, fees, and special assessments to be imposed on a regular basis, and the manner in which the same may be imposed and/or increased;
(p) The method of adopting, amending, repealing and abrogating the bylaws;
(q) The list of acts constituting a violation by its officers and the corresponding penalties therefor;
(r) The penalties for violation of the bylaws; and
(s) Such other matters necessary for the proper or convenient transaction of its corporate business and affairs.
Section 16. Proxies. - Association members may vote in person or by proxy in all meetings of members. Proxies shall be in writing, signed by the member and filed before the scheduled meeting with the association secretary. Unless otherwise provided in the proxy, it shall be valid only for the meeting for which it is intended, No proxy shall be valid and effective for a period longer than three (3) years at anyone time unless earlier revoked by the member.
Section 17. Financial and Other Records. - The homeowners’ association is enjoined to observe the following, with regard to its funds, financial and other records:
(a) The association or its managing agent shall keep financial and other records sufficiently detailed to enable the association to fully declare to each member the true statement of its financial status. All financial and other records of the association including, but not limited to, checks, bank records and invoices, in whatever form these are kept, are the property of the association. Each association’s managing agent shall turn over all original books and records to the association immediately upon termination of the management relationship with the association, or upon such other demand as is made by the board. An association’s managing agent is entitled to keep association records. All records which the managing agent has turned over to the association shall be made reasonably available for the examination and copying by the managing agent;
(b) All records involving the affairs of the association shall be available for examination by all owners, holders of mortgages on the lots, and their respective authorized agents upon reasonable advanced notice, during normal working hours at the office of the association: Provided, That holders of mortgages on lots may have access to the information about the property held in mortgage with the written consent of the registered owner;
(c) A financial statement of the association shall be prepared annually by an auditor, the treasurer and/or an independent certified public accountant within ninety (90) days from the end of the accounting period to be posted in the association office, bulletin boards, or other conspicuous places within the subdivision/village, and to be submitted to the HLURB; and
(d) The funds of the association shall be kept in accounts in the name of the association and shall not be joined with the funds of any other association, or any person responsible for the custody of such funds.
Section 18. Relationship with LGUs. - Homeowners' associations shall complement, support and strengthen LGUs in providing vital services to their members and help implement local government policies, programs, ordinances, and rules.
Associations are encouraged to actively cooperate with LGUs in furtherance of their common goals and activities for the benefit of the residents of the subdivisions/villages and their environs.
Where the LGUs lack resources to provide for basic services, the associations shall endeavor to tap the means to provide for the same. In recognition of the associations’ efforts to assist the LGUs III providing such basic services, association dues and income derived from rentals of their facilities shall be tax - exempt: Provided, That such income and dues shall be used for the cleanliness, safety, security and other basic services needed by the members, including the maintenance of the facilities of their respective subdivisions or villages.
LGUs shall, upon due notice, hold public consultations with the members of the affected associations, especially their officers and directors, where proposed rules, zoning and other ordinances, projects and/or programs affecting their jurisdiction and surrounding vicinity are to be implemented prior to the effectivity or implementation of such rules, zoning, ordinances, projects or programs: Provided, That in cases of zonal reclassification, the approval of a simple majority of homeowners shall be required.
Such public consultations shall conform to the manner as specified in Rule XI, Article 54 of the implementing rules and regulations of Republic Act No. 7160, otherwise known as the Local Government Code of 1991.
Section 20. Duties and Responsibilities of the HLURB. - In addition to the powers, authorities and responsibilities vested in it by Republic Act No. 8763, Presidential Decree No. 902 - A, Batas Pambansa Big. 68 and Executive Order No. 535, Series of 1981, as amended, the HLURB shall:
(a) Regularly conduct free orientation for officers of homeowners’ associations or deputize another competent agency to conduct the orientation;
(b) Formulate and publish a Code of Ethics and Ethical Standards for board members detailing prohibited conflicts of interest;
(c) Register all associations, federations, confederations or umbrella organizations of the associations;
(d) Hear and decide inter - association and/or inter - association controversies and/or conflicts, without prejudice to filing civil and criminal cases by the parties concerned before the regular courts: Provided, That all decisions of the HLURB are appealable directly to the Court of Appeals;
(e) Formulate the rules or manner of verification and validation of petitions for the removal of director(s) or trustee(s) of the association or dissolution of the board pursuant to Sections 13 and 14 of this Act;
(f) Exercise the same powers over federations, confederations or umbrella organizations of the associations;
(g) Formulate, in consultation with the representatives of associations, federations, confederations or umbrella organizations of the associations, standard nomenclatures to be used for the associations' books of accounts, and a standard articles of incorporation and bylaws for homeowners' association for reference purposes;
(h) Formulate, in consultation with the representatives of associations, federations, confederations or umbrella organizations of the associations, the guidelines in regulating the kinds of contributions and fees that may be charged and/or collected by associations; and
(i) Call upon the Philippine National Police, other law enforcement agencies, and other instrumentalities of the government, if necessary, for the enforcement of its functions.
Section 21. Additional Positions and Personnel for the HLURB. - For purposes of this Act, the HLURB shall, upon its discretion, create positions and enlist additional personnel to carry out its mandate.
Section 22. Prohibited Acts. - It shall be prohibited for any person:
(a) To compel a homeowner to join the association, without prejudice to the provisions of the deed of restrictions, its extensions or renewals as approved by the majority vote of the members or as annotated on the title of the property; the contract for the purchase of a lot in the subdivision project; or an award under a CMP project or a similar tenurial arrangement;
(b) To deprive any homeowner of his/her right to avail of or enjoy basic community services and facilities where he/she has paid the dues, charges, and other fees for such services;
(c) To prevent any homeowner who has paid the required fees and charges from reasonably exercising his/her right to inspect association books and records;
(d) To prevent any member in good standing from participating in association meetings, elections and referenda;
(e) To deny any member due process in the imposition of administrative sanctions;
(f) To exercise rights and powers as stated m Section 10 in violation of the required consultation and approval of the required number of homeowners or members;
(g) To unreasonably fail to provide basic community services and facilities and maintain, repair, replace, or modify such facilities;
(h) To unreasonably fail to comply with Section 17 of this Act; or
(i) To violate any other provision of this Act.
Section 23. Penalties and Sanctions. - Any person who, intentionally or by gross negligence, violates any provision of this Act, fails to perform his/her functions under this Act and/or violates the rights of the members, shall be punished with a fine of not less than Five thousand pesos (Php5, 000.00) but not more than Fifty thousand pesos
(Php50, 000.00) and permanent disqualification from being elected or appointed as member of the board, officer or employee of the association, without prejudice to being charged before a regular court for violations of the provisions of the Revised Penal Code, Civil Code and other pertinent laws.
If the violation is committed by the association, the members, officers, directors or trustees of the association who have actually participated in, authorized, or ratified the prohibited act shall be held liable.
If the violation is committed by the employees and agents who acted in gross violation of the provisions of this Act, the officers, directors or trustees, or incorporators of the association shall be jointly and severally liable with the offending employees, agents, and the association.1avvphi1
Section 24. Review of Association's Bylaws. - In order to comply with the provisions of this Act, the homeowners' association shall, within six (6) months from the effectivity of this Act, conduct a review of its bylaws, draft its own rules of procedure to be incorporated in the bylaws and conduct a plebiscite for the approval of the members of the association. A simple majority shall be used to determine the approval of the bylaws.
Prosecution service act of 2010
What I find immoral and unconstitional in Republic Act No. 10071 (AN ACT STRENGTHENING AND RATIONALIZED THE NATIONAL PROSECUTION SERVICE - "Prosecution Service Act of 2010") is this provision:
"Subject to Section 20 hereof, the salaries and allowances of regional, provincial and city prosecutors and their assistants, and the members of the prosecution staff, including the prosecution attorneys, shall be paid entirely out of national funds and included in the annual appropriations of the DOJ: Provided, however, That this provision is without prejudice to the grant of allowances to the above-mentioned prosecutors by their respective local governments in amounts not exceeding fifty percent (50%) of their basic salaries; Provided, further, That the whole of the allowances or portion thereof, whether granted by the national or local government shall be exempt from the income tax."
Here are some of its salient parts:
Section 3. Creation of the National Prosecution Service. - There is hereby created and established a National Prosecution Service to be composed of the prosecution staff in the Office of the Secretary of Justice and such number of regional prosecution offices, offices of the provincial prosecutor and offices of the prosecutor as are hereinafter Provided, which shall be primarily responsible for the preliminary investigation and prosecution of all cases involving violations of penal laws under the supervision of the Secretary of Justice, subject to the provisions of Sections 4, 5 and 7 hereof.
Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice includes authority to act directly on any matter involving national security or a probable miscarriage of Justice within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor or the city prosecutor and to review, reverse, revise, modify or affirm on appeal or petition for review as the law or the rules of the Department of Justice (DOJ) may provide, final judgements and orders of the prosecutor general, regional prosecutors, provincial prosecutors, and city prosecutors.
For purposes of determining the cases which may be acted on, directly by the Secretary of Justice, the phrase "national security" shall refer to crimes against national security as Provided under the Penal Code, Book II, Title 1, and other cases involving acts of terrorism as defined under the Human Security Act under Republic Act No. 9372.
Section 8. The Provincial Prosecutor or City Prosecutor. - There still be for each province or city a Provincial Prosecutor or city Prosecutor, as the case may be, who shall be assisted by at least one (1) Deputy Provincial Prosecutor or Deputy City Prosecutor and such number of assistant and associate prosecutors as provided for hereinafter. Provided, however, That whenever a new province or city is created, it shall have a provincial prosecutor or city prosecutor, a deputy provincial prosecutor or deputy city prosecutor and such number of assistant and associate prosecutors as there are court branches therein at the ratio of two (2) prosecutors for each branch of regional trial court, one (1) prosecutor for each branch of metropolitan trial court or municipal trial court in cities, and one (1) prosecutor for every two (2) municipal trial courts in municipalities or branches thereof municipal circuit trial courts.
Section 9. Powers and Functions of the Provincial Prosecutor or City Prosecutor. - The provincial prosecutor shall:
(a) Be the law officer of the province or city, as the case may be:
(b) Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of penal laws and ordinances within their respective jurisdictions, and have the necessary information or complaint prepared or made and filed against the persons accused. In the conduct of such investigations he or any of his/her assistants shall receive the statements under oath or take oral evidence of witnesses, and for this purpose may by subpoena summon witnesses to appear and testify under oath before him/her, and the attendance or evidence of an absent or recalcitrant witness may be enforced by application to any trial court;
(c) Have charge of the prosecution of all crimes, misdemeanors and violations of city or municipal ordinances in the courts at the province or city and therein discharge all the duties incident to the institution of criminal actions, subject to the provisions of second paragraph of Section 5 hereof.
Section 13. Automatic Creation of Positions of Prosecutor. - Whenever new courts or branches thereof are created, there shall be automatically created for the province or city where such courts or branches are seated positions of assistant and associate prosecutors in such number determined pursuant to the ratio established in Section 8 hereof: Provided, however, That if the branches of a regional trial court shall be seated at a city outside the metropolitan area established by law, the number of positions shall be distributed between the city and the province where the city is located according to the territorial jurisdiction covered by such branch: Provided, further, That in case the branches created are of regional trial court, not less than one-half of the corresponding prosecutors shall have the rank of Prosecutor III If the province or city has at least twenty-five (25) prosecutors, including the additional, or the city is in a metropolitan area established by law, and the rest, Prosecutor II; otherwise, they may have the ranks of Prosecutor II and Prosecutor I.
Section 14. Qualifications, Rank and Appointment of the Prosecutor General. - The Prosecutor General shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments, and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefits as those of the Presiding Justice of the Court of Appeals and shall be appointed by the President.
Section 16. Qualifications, Ranks, and Appointments of Prosecutors, and other Prosecution Officers. - Prosecutor with the rank of Prosecutor V shall have the same qualification for appointment, rank, category, prerogatives, salary grade, and salaries, allowances, and emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefits as those of a n associate justice of the Court of Appeals.
Prosecutors with the rank of Prosecutor IV shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Regional Trial Court.
Prosecutor with the rank of Prosecutor III shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court.
Prosecutor with the rank of Prosecutor II shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Municipal Trial Court in cities.
Prosecutor with the rank of Prosecutor III shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court in municipalities.
Any increase after the approval of this Act in the salaries, allowances or retirement benefits or any upgrading of the grades or levels thereof of any or all of the Justices or Judges referred to herein to whom said emoluments are assimilated shall apply to the corresponding prosecutors.
All the above prosecutors shall be selected from among qualified and professionally trained members of the legal profession who are of proven integrity and competence. They shall be appointed by the President of the Philippines upon recommendation of the Secretary of Justice and shall serve until they reach the age of sixty five (65) years old x x x.
A prosecution attorney or special counsel shall be a member of the bar in good standing and shall have a salary under Salary Grade 25. Such prosecution officer shall be appointed by the Secretary of Justice: Provided, however, That with respect to a special counsel, his/her appointment shall be upon the recommendation of the provincial governor or city mayor and with the endorsement of the provincial prosecutor or city prosecutor, as the case may be.
Subject to Section 20 hereof, the salaries and allowances of regional, provincial and city prosecutors and their assistants, and the members of the prosecution staff, including the prosecution attorneys, shall be paid entirely out of national funds and included in the annual appropriations of the DOJ: Provided, however, That this provision is without prejudice to the grant of allowances to the above-mentioned prosecutors by their respective local governments in amounts not exceeding fifty percent (50%) of their basic salaries; Provided, further, That the whole of the allowances or portion thereof, whether granted by the national or local government shall be exempt from the income tax.
Section 19. No Undermining of Security of Tenure. - Nothing in this Act shall be construed to allow the transfer, except as Provided herein or in case of temporary assignment, as public interest may require, of any prosecutor to any place or station or to undermine the security of tenure of incumbent prosecutors as provided in the laws. Such temporary assignment shall not exceed three (3) months without his or her written consent. No Provincial Prosecutor or City Prosecutor shall be detailed or assigned to another office or station, except in a concurrent capacity and with his or her written consent.lawphil
Section 20. Special Allowances. - The special allowances granted to the members of the National Prosecution Service under Republic Act No. 9279 shall continue to be given to them subject to the provisions hereof: Provided, however, that the amount not supported by the funding source specified in Section3 thereof to complete the equivalent of hundred percent (100%) of the basic salary shall be paid through appropriations included in the budget of the DOJ: Provided, further, That when the amount being supported by the said funding source shall have been also included in the General Appropriations, the fees authorized under said Section 3 shall no longer be collected.
Section 21. Retirement Benefits. - When a prosecutor, who has rendered at least fifteen (15) years of service either in the National Prosecution Service or in any branch of government, or in both, retires for having attained the age of sixty-five (65) years or resigns by reason of incapacity to discharge the duties of his/her office, he/she shall, during the residue of his/her natural life, in the manner hereinafter Provided, receive a retirement pension based on the highest monthly salary, plus the highest monthly aggregate of transportation, living and representation allowances, which he/she was receiving at the time of his/her retirement or resignation.
When a prosecutor has attained the age of sixty (60) years and has rendered at least fifteen (15) years of service in government, the last five (5) years of which must have been continuously rendered in the prosecution service, he/she shall likewise be entitled to retire and receive during the residue of his/her natural life the same benefits Provided for in this section: Provided, however, that those with less than fifteen (15) years of service in the government shall be entitled to a pro-rata pension xxx.
Section 22. Conditions. - To maintain entitlement to the pension herein Provided, no prosecutor, during the time he/she is receiving said pension, shall appear as counsel before any judicial or quasi-judicial or quasi-judicial agency in any civil case wherein the Government or any agency, subdivision, or instrumentality thereof is an adverse party, or in any criminal case wherein any officer or employee of the Government is accused of an offense committed in relation to his/her office, or collect any fee for his/her appearance in any administrative proceedings to maintain an interest adverse to the government , whether national, provincial, or municipal or to any of its legally constituted officers. When a prosecutor covered under this Act shall assume an elective public office, he/she shall not, upon assumption of office and during his/her term, retrieve the monthly pension or any of the allowance due to him/her.
"Subject to Section 20 hereof, the salaries and allowances of regional, provincial and city prosecutors and their assistants, and the members of the prosecution staff, including the prosecution attorneys, shall be paid entirely out of national funds and included in the annual appropriations of the DOJ: Provided, however, That this provision is without prejudice to the grant of allowances to the above-mentioned prosecutors by their respective local governments in amounts not exceeding fifty percent (50%) of their basic salaries; Provided, further, That the whole of the allowances or portion thereof, whether granted by the national or local government shall be exempt from the income tax."
Here are some of its salient parts:
Section 3. Creation of the National Prosecution Service. - There is hereby created and established a National Prosecution Service to be composed of the prosecution staff in the Office of the Secretary of Justice and such number of regional prosecution offices, offices of the provincial prosecutor and offices of the prosecutor as are hereinafter Provided, which shall be primarily responsible for the preliminary investigation and prosecution of all cases involving violations of penal laws under the supervision of the Secretary of Justice, subject to the provisions of Sections 4, 5 and 7 hereof.
Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice includes authority to act directly on any matter involving national security or a probable miscarriage of Justice within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor or the city prosecutor and to review, reverse, revise, modify or affirm on appeal or petition for review as the law or the rules of the Department of Justice (DOJ) may provide, final judgements and orders of the prosecutor general, regional prosecutors, provincial prosecutors, and city prosecutors.
For purposes of determining the cases which may be acted on, directly by the Secretary of Justice, the phrase "national security" shall refer to crimes against national security as Provided under the Penal Code, Book II, Title 1, and other cases involving acts of terrorism as defined under the Human Security Act under Republic Act No. 9372.
Section 8. The Provincial Prosecutor or City Prosecutor. - There still be for each province or city a Provincial Prosecutor or city Prosecutor, as the case may be, who shall be assisted by at least one (1) Deputy Provincial Prosecutor or Deputy City Prosecutor and such number of assistant and associate prosecutors as provided for hereinafter. Provided, however, That whenever a new province or city is created, it shall have a provincial prosecutor or city prosecutor, a deputy provincial prosecutor or deputy city prosecutor and such number of assistant and associate prosecutors as there are court branches therein at the ratio of two (2) prosecutors for each branch of regional trial court, one (1) prosecutor for each branch of metropolitan trial court or municipal trial court in cities, and one (1) prosecutor for every two (2) municipal trial courts in municipalities or branches thereof municipal circuit trial courts.
Section 9. Powers and Functions of the Provincial Prosecutor or City Prosecutor. - The provincial prosecutor shall:
(a) Be the law officer of the province or city, as the case may be:
(b) Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of penal laws and ordinances within their respective jurisdictions, and have the necessary information or complaint prepared or made and filed against the persons accused. In the conduct of such investigations he or any of his/her assistants shall receive the statements under oath or take oral evidence of witnesses, and for this purpose may by subpoena summon witnesses to appear and testify under oath before him/her, and the attendance or evidence of an absent or recalcitrant witness may be enforced by application to any trial court;
(c) Have charge of the prosecution of all crimes, misdemeanors and violations of city or municipal ordinances in the courts at the province or city and therein discharge all the duties incident to the institution of criminal actions, subject to the provisions of second paragraph of Section 5 hereof.
Section 13. Automatic Creation of Positions of Prosecutor. - Whenever new courts or branches thereof are created, there shall be automatically created for the province or city where such courts or branches are seated positions of assistant and associate prosecutors in such number determined pursuant to the ratio established in Section 8 hereof: Provided, however, That if the branches of a regional trial court shall be seated at a city outside the metropolitan area established by law, the number of positions shall be distributed between the city and the province where the city is located according to the territorial jurisdiction covered by such branch: Provided, further, That in case the branches created are of regional trial court, not less than one-half of the corresponding prosecutors shall have the rank of Prosecutor III If the province or city has at least twenty-five (25) prosecutors, including the additional, or the city is in a metropolitan area established by law, and the rest, Prosecutor II; otherwise, they may have the ranks of Prosecutor II and Prosecutor I.
Section 14. Qualifications, Rank and Appointment of the Prosecutor General. - The Prosecutor General shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments, and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefits as those of the Presiding Justice of the Court of Appeals and shall be appointed by the President.
Section 16. Qualifications, Ranks, and Appointments of Prosecutors, and other Prosecution Officers. - Prosecutor with the rank of Prosecutor V shall have the same qualification for appointment, rank, category, prerogatives, salary grade, and salaries, allowances, and emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefits as those of a n associate justice of the Court of Appeals.
Prosecutors with the rank of Prosecutor IV shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Regional Trial Court.
Prosecutor with the rank of Prosecutor III shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court.
Prosecutor with the rank of Prosecutor II shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Municipal Trial Court in cities.
Prosecutor with the rank of Prosecutor III shall have the same qualifications for appointment, rank, category, prerogatives, salary grade and salaries, allowances, emoluments and other privileges, shall be subject to the same inhibitions and disqualifications, and shall enjoy the same retirement and other benefit as those of a Judge of the Metropolitan Trial Court in municipalities.
Any increase after the approval of this Act in the salaries, allowances or retirement benefits or any upgrading of the grades or levels thereof of any or all of the Justices or Judges referred to herein to whom said emoluments are assimilated shall apply to the corresponding prosecutors.
All the above prosecutors shall be selected from among qualified and professionally trained members of the legal profession who are of proven integrity and competence. They shall be appointed by the President of the Philippines upon recommendation of the Secretary of Justice and shall serve until they reach the age of sixty five (65) years old x x x.
A prosecution attorney or special counsel shall be a member of the bar in good standing and shall have a salary under Salary Grade 25. Such prosecution officer shall be appointed by the Secretary of Justice: Provided, however, That with respect to a special counsel, his/her appointment shall be upon the recommendation of the provincial governor or city mayor and with the endorsement of the provincial prosecutor or city prosecutor, as the case may be.
Subject to Section 20 hereof, the salaries and allowances of regional, provincial and city prosecutors and their assistants, and the members of the prosecution staff, including the prosecution attorneys, shall be paid entirely out of national funds and included in the annual appropriations of the DOJ: Provided, however, That this provision is without prejudice to the grant of allowances to the above-mentioned prosecutors by their respective local governments in amounts not exceeding fifty percent (50%) of their basic salaries; Provided, further, That the whole of the allowances or portion thereof, whether granted by the national or local government shall be exempt from the income tax.
Section 19. No Undermining of Security of Tenure. - Nothing in this Act shall be construed to allow the transfer, except as Provided herein or in case of temporary assignment, as public interest may require, of any prosecutor to any place or station or to undermine the security of tenure of incumbent prosecutors as provided in the laws. Such temporary assignment shall not exceed three (3) months without his or her written consent. No Provincial Prosecutor or City Prosecutor shall be detailed or assigned to another office or station, except in a concurrent capacity and with his or her written consent.lawphil
Section 20. Special Allowances. - The special allowances granted to the members of the National Prosecution Service under Republic Act No. 9279 shall continue to be given to them subject to the provisions hereof: Provided, however, that the amount not supported by the funding source specified in Section3 thereof to complete the equivalent of hundred percent (100%) of the basic salary shall be paid through appropriations included in the budget of the DOJ: Provided, further, That when the amount being supported by the said funding source shall have been also included in the General Appropriations, the fees authorized under said Section 3 shall no longer be collected.
Section 21. Retirement Benefits. - When a prosecutor, who has rendered at least fifteen (15) years of service either in the National Prosecution Service or in any branch of government, or in both, retires for having attained the age of sixty-five (65) years or resigns by reason of incapacity to discharge the duties of his/her office, he/she shall, during the residue of his/her natural life, in the manner hereinafter Provided, receive a retirement pension based on the highest monthly salary, plus the highest monthly aggregate of transportation, living and representation allowances, which he/she was receiving at the time of his/her retirement or resignation.
When a prosecutor has attained the age of sixty (60) years and has rendered at least fifteen (15) years of service in government, the last five (5) years of which must have been continuously rendered in the prosecution service, he/she shall likewise be entitled to retire and receive during the residue of his/her natural life the same benefits Provided for in this section: Provided, however, that those with less than fifteen (15) years of service in the government shall be entitled to a pro-rata pension xxx.
Section 22. Conditions. - To maintain entitlement to the pension herein Provided, no prosecutor, during the time he/she is receiving said pension, shall appear as counsel before any judicial or quasi-judicial or quasi-judicial agency in any civil case wherein the Government or any agency, subdivision, or instrumentality thereof is an adverse party, or in any criminal case wherein any officer or employee of the Government is accused of an offense committed in relation to his/her office, or collect any fee for his/her appearance in any administrative proceedings to maintain an interest adverse to the government , whether national, provincial, or municipal or to any of its legally constituted officers. When a prosecutor covered under this Act shall assume an elective public office, he/she shall not, upon assumption of office and during his/her term, retrieve the monthly pension or any of the allowance due to him/her.
Saturday, July 10, 2010
Manila hall of justice long overdue
In 2005 ex-Pres. G. Arroyo turned over the old GSIS Bldg. to the Supreme Court to be renovated as the Hall of Justice for the city of Manila. Nothing has happened so far. Manila, historical capital of the country, is famous for its dark, dirty, small, and crowded courtrooms. I find the halls of justice of other poor provinces and towns in the country to be more appealing and dignified than the courtrooms of Manila. This situation is indeed very embarrassing to the entire republic.
2010 wage order (NCR)
WAGE ORDER No. NCR-15 PROVIDING AN INCREASE IN THE MINIMUM WAGE IN THE NATIONAL CAPITAL REGION
(Basis: R.A. 6727 (The Wage Rationalization Act)].
Section 1. NEW MINIMUM WAGE RATES. Upon effectivity of this
Wage Order, all private sector minimum wage workers and employees in the
National Capital Region shall receive an increase in the amount of Twenty
Two Pesos (P22.00) per day.
a) The new daily minimum wage rates of covered workers in the private
sector in the National Capital Region shall be as follows:
Non-Agriculture - P404.00
Agriculture (Plantation and Non
Plantation) - P367.00
Private Hospitals with bed capacity
of 100 or less - P367.00
Retail/Service Establishments
employing 15 workers or less - P367.00
Manufacturing Establishments
regularly employing less than 10
workers - P367.00
Section 2. COVERAGE. The minimum wages prescribed in this
Order shall apply to all minimum wage earners in the private sector in the
Region, regardless of their position, designation or status of employment and
irrespective of the method by which they are paid.
This Wage Order shall not cover household or domestic helpers; persons
in the personal service of another, including family drivers, and workers of duly
registered Barangay Micro Business Enterprises (BMBEs) with Certificates of
Authority pursuant to Republic Act No.9178.
Section 3. BASIS OF MINIMUM WAGE RATES. The minimum wage
rates prescribed under this Order shall be for the normal working hours which
shall not exceed eight (8) hours of work a day.
Section 4. APPLICATION TO CONTRACTORS. In the case of
contracts for construction projects and for security, janitorial and similar
services, the increase prescribed in this Order shall be borne by the principals
or clients of the construction/service contractors and the contract shall be
deemed amended accordingly.
In the event, however, that the principals or clients fail to pay the
prescribed wage rates, the construction/service contractor shall be jointly and
severally liable with his principal or client.
Section 5. APPLICATION TO PRIVATE EDUCATIONAL
INSTITUTIONS. In the case of private educational institutions, the share of
covered workers and employees in the increase in tuition fees for School Year
2010-2011 shall be considered as compliance with the wage increase
prescribed herein. However, payment of any shortfall in the wage increase set
forth herein shall be covered starting School Year 2011-2012.
Private educational institutions which have not increased their tuition
fees for School Year 2010-2011 may defer compliance with the minimum wage
prescribed herein until the beginning of School Year 2011-2012.
In any case, all private educational institutions shall implement the
Minimum Wage prescribed herein starting School Year 2011-2012.
Section 6. WORKERS PAID BY RESULT. All workers paid by result,
including those who are paid on piecework, “takay”, “pakyaw” or task basis,
shall be entitled to receive the prescribed Minimum Wage per eight (8) hours
work a day, or a proportion thereof for working less than eight (8) hours.
Section 7. WAGES OF SPECIAL GROUPS OF WORKERS. Wages
of apprentices and learners shall in no case be less than seventy-five percent
(75%) of the applicable minimum wage rates prescribed in this Order.
All recognized learnership and apprenticeship agreements entered into
before the effectivity of this Order shall be considered automatically modified
insofar as their wage clauses are concerned to reflect the new minimum wage
rates.
All qualified handicapped workers shall receive the full amount of the
minimum wage rate prescribed herein pursuant to Republic Act No. 7277,
otherwise known as the Magna Carta for Disabled Persons.
Section 8. EXEMPTIONS. Upon application with and as determined
by the Board, based on documentation and other requirements in accordance
with applicable rules and regulations issued by the National Wages and
Productivity Commission (NWPC) the following may be exempted from the
applicability of this Order:
1. Distressed Establishments;
2. Retail/Service Establishments Regularly Employing Not More Than
Ten (10) workers;
3. Establishments whose Total Assets including those arising from loans
but exclusive of the land on which the particular business entity’s
office, plant and equipment are situated, are not more than P3 Million;
4. Establishments Adversely Affected by Natural Calamities.
Section 9. APPEAL TO THE COMMISSION. Any party aggrieved by
this Wage Order may file an appeal to the NWPC, through the Board, in three
(3) printed copies, not later than ten (10) days from the publication of this Wage
Order.
Section 10. CREDITABLE WAGE INCREASE. Any increase granted by
an employer in an organized establishment within three (3) months prior to the
effectivity of this Order shall be credited as compliance with the prescribed
increase set forth herein, provided that an agreement to this effect has been
forged between the parties or a collective bargaining agreement provision
allowing creditability exists. In the absence of such an agreement or provision in
the CBA, any increase granted by the employer shall not be credited as
compliance with the wage increase prescribed in ths Order.
In unorganized establishments, any increase granted by the employer
within five (5) months prior to the effectivity of this Order shall be credited as
compliance therewith.
In case the increases given are less than the prescribed Minimum Wage,
the employer shall pay the difference. Such increases shall not include
anniversary increases, merit wage increases and those resulting from the
regularization or promotion of employees.
Section 11. EFFECTS ON EXISTING WAGE STRUCTURE. Where the
application of the wage increase prescribed in this Order results in distortions in
the wage structure within the establishment, it shall be corrected in accordance
with the procedure provided for under Article 124 of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the Philippines.
Section 12. COMPLAINTS FOR NON-COMPLIANCE. Complaints for
non-compliance with this Order shall be filed with the National Capital Region
Office of the Department of Labor and Employment, and shall be the subject of
enforcement proceedings under Articles 128 and 129 of the Labor Code, as
amended.
Section 13. NON-DIMINUTION OF BENEFITS. Nothing in this Order
shall be construed to reduce any existing wage rates, allowances and benefits
of any form under existing laws, decrees, issuances, executive orders and/or
under any contract or agreement between the workers and employers.
Section 14. PROHIBITION AGAINST INJUCTION. No preliminary or
permanent injunction, or temporary restraining order may be issued by any
court, tribunal or other entity against any proceedings before the Board.
Section 15. FREEDOM TO BARGAIN. This Order shall not be
construed to prevent workers in particular firms or enterprises or industries from
bargaining for higher wages with their respective employers.
Section 16. REPORTING REQUIREMENT. Any person, company,
corporation, partnership or any entity engaged in business shall submit a
verified report on their wage structure to the Board not later than January 31,
2011 and every year thereafter in accordance with the form prescribed by the
National Wages and Productivity Commission.
Section 17. PENAL PROVISION. Any employer who refuses or
fails to comply with this Order shall be subject to the penalties specified under
RA 6727, as amended under R.A. No. 8188.
Section 18. REPEALING CLAUSE. All orders, issuances, rules and
regulations or parts thereof inconsistent with the provisions of this Wage Order
are hereby repealed, amended or modified accordingly.
Section 19. SEPARABILITY CLAUSE. If any provision or part of this
Wage Order is declared unconstitutional, or in conflict with existing law, the
other provisions or parts thereof shall remain valid.
Visit:
REGIONAL TRIPARTITE WAGES and
PRODUCTIVITY BOARD
Room 11-C, 11/F, G.E. Antonino Building
corner T.M. Kalaw & J. Bocobo Streets,
Ermita, Manila
Telefax: 527-51-55/400-67-65
Prepared by:
Atty. Manuel J. Laserna Jr.
mjlasernajr@gmail.com
(Basis: R.A. 6727 (The Wage Rationalization Act)].
Section 1. NEW MINIMUM WAGE RATES. Upon effectivity of this
Wage Order, all private sector minimum wage workers and employees in the
National Capital Region shall receive an increase in the amount of Twenty
Two Pesos (P22.00) per day.
a) The new daily minimum wage rates of covered workers in the private
sector in the National Capital Region shall be as follows:
Non-Agriculture - P404.00
Agriculture (Plantation and Non
Plantation) - P367.00
Private Hospitals with bed capacity
of 100 or less - P367.00
Retail/Service Establishments
employing 15 workers or less - P367.00
Manufacturing Establishments
regularly employing less than 10
workers - P367.00
Section 2. COVERAGE. The minimum wages prescribed in this
Order shall apply to all minimum wage earners in the private sector in the
Region, regardless of their position, designation or status of employment and
irrespective of the method by which they are paid.
This Wage Order shall not cover household or domestic helpers; persons
in the personal service of another, including family drivers, and workers of duly
registered Barangay Micro Business Enterprises (BMBEs) with Certificates of
Authority pursuant to Republic Act No.9178.
Section 3. BASIS OF MINIMUM WAGE RATES. The minimum wage
rates prescribed under this Order shall be for the normal working hours which
shall not exceed eight (8) hours of work a day.
Section 4. APPLICATION TO CONTRACTORS. In the case of
contracts for construction projects and for security, janitorial and similar
services, the increase prescribed in this Order shall be borne by the principals
or clients of the construction/service contractors and the contract shall be
deemed amended accordingly.
In the event, however, that the principals or clients fail to pay the
prescribed wage rates, the construction/service contractor shall be jointly and
severally liable with his principal or client.
Section 5. APPLICATION TO PRIVATE EDUCATIONAL
INSTITUTIONS. In the case of private educational institutions, the share of
covered workers and employees in the increase in tuition fees for School Year
2010-2011 shall be considered as compliance with the wage increase
prescribed herein. However, payment of any shortfall in the wage increase set
forth herein shall be covered starting School Year 2011-2012.
Private educational institutions which have not increased their tuition
fees for School Year 2010-2011 may defer compliance with the minimum wage
prescribed herein until the beginning of School Year 2011-2012.
In any case, all private educational institutions shall implement the
Minimum Wage prescribed herein starting School Year 2011-2012.
Section 6. WORKERS PAID BY RESULT. All workers paid by result,
including those who are paid on piecework, “takay”, “pakyaw” or task basis,
shall be entitled to receive the prescribed Minimum Wage per eight (8) hours
work a day, or a proportion thereof for working less than eight (8) hours.
Section 7. WAGES OF SPECIAL GROUPS OF WORKERS. Wages
of apprentices and learners shall in no case be less than seventy-five percent
(75%) of the applicable minimum wage rates prescribed in this Order.
All recognized learnership and apprenticeship agreements entered into
before the effectivity of this Order shall be considered automatically modified
insofar as their wage clauses are concerned to reflect the new minimum wage
rates.
All qualified handicapped workers shall receive the full amount of the
minimum wage rate prescribed herein pursuant to Republic Act No. 7277,
otherwise known as the Magna Carta for Disabled Persons.
Section 8. EXEMPTIONS. Upon application with and as determined
by the Board, based on documentation and other requirements in accordance
with applicable rules and regulations issued by the National Wages and
Productivity Commission (NWPC) the following may be exempted from the
applicability of this Order:
1. Distressed Establishments;
2. Retail/Service Establishments Regularly Employing Not More Than
Ten (10) workers;
3. Establishments whose Total Assets including those arising from loans
but exclusive of the land on which the particular business entity’s
office, plant and equipment are situated, are not more than P3 Million;
4. Establishments Adversely Affected by Natural Calamities.
Section 9. APPEAL TO THE COMMISSION. Any party aggrieved by
this Wage Order may file an appeal to the NWPC, through the Board, in three
(3) printed copies, not later than ten (10) days from the publication of this Wage
Order.
Section 10. CREDITABLE WAGE INCREASE. Any increase granted by
an employer in an organized establishment within three (3) months prior to the
effectivity of this Order shall be credited as compliance with the prescribed
increase set forth herein, provided that an agreement to this effect has been
forged between the parties or a collective bargaining agreement provision
allowing creditability exists. In the absence of such an agreement or provision in
the CBA, any increase granted by the employer shall not be credited as
compliance with the wage increase prescribed in ths Order.
In unorganized establishments, any increase granted by the employer
within five (5) months prior to the effectivity of this Order shall be credited as
compliance therewith.
In case the increases given are less than the prescribed Minimum Wage,
the employer shall pay the difference. Such increases shall not include
anniversary increases, merit wage increases and those resulting from the
regularization or promotion of employees.
Section 11. EFFECTS ON EXISTING WAGE STRUCTURE. Where the
application of the wage increase prescribed in this Order results in distortions in
the wage structure within the establishment, it shall be corrected in accordance
with the procedure provided for under Article 124 of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the Philippines.
Section 12. COMPLAINTS FOR NON-COMPLIANCE. Complaints for
non-compliance with this Order shall be filed with the National Capital Region
Office of the Department of Labor and Employment, and shall be the subject of
enforcement proceedings under Articles 128 and 129 of the Labor Code, as
amended.
Section 13. NON-DIMINUTION OF BENEFITS. Nothing in this Order
shall be construed to reduce any existing wage rates, allowances and benefits
of any form under existing laws, decrees, issuances, executive orders and/or
under any contract or agreement between the workers and employers.
Section 14. PROHIBITION AGAINST INJUCTION. No preliminary or
permanent injunction, or temporary restraining order may be issued by any
court, tribunal or other entity against any proceedings before the Board.
Section 15. FREEDOM TO BARGAIN. This Order shall not be
construed to prevent workers in particular firms or enterprises or industries from
bargaining for higher wages with their respective employers.
Section 16. REPORTING REQUIREMENT. Any person, company,
corporation, partnership or any entity engaged in business shall submit a
verified report on their wage structure to the Board not later than January 31,
2011 and every year thereafter in accordance with the form prescribed by the
National Wages and Productivity Commission.
Section 17. PENAL PROVISION. Any employer who refuses or
fails to comply with this Order shall be subject to the penalties specified under
RA 6727, as amended under R.A. No. 8188.
Section 18. REPEALING CLAUSE. All orders, issuances, rules and
regulations or parts thereof inconsistent with the provisions of this Wage Order
are hereby repealed, amended or modified accordingly.
Section 19. SEPARABILITY CLAUSE. If any provision or part of this
Wage Order is declared unconstitutional, or in conflict with existing law, the
other provisions or parts thereof shall remain valid.
Visit:
REGIONAL TRIPARTITE WAGES and
PRODUCTIVITY BOARD
Room 11-C, 11/F, G.E. Antonino Building
corner T.M. Kalaw & J. Bocobo Streets,
Ermita, Manila
Telefax: 527-51-55/400-67-65
Prepared by:
Atty. Manuel J. Laserna Jr.
mjlasernajr@gmail.com
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