The Greatest Filipino Genius

Physician, scientist, painter, sculptor, poet, novelist, linguist, researcher, philosopher, and historian, Dr. Jose Rizal is the greatest Filipino of all times. Born at Calamba, Laguna, on June 19, 1861, he obtained, at a young age in 1877, his Bachelor of Arts Degree with highest honors. He went on to continue and brilliantly finished his medical and humanistic studies. In all his scholastic studies in Manila and in European universities he always emerged with honors; and at the age of 24, he was already a full-fledged physician, philosopher, scientist and scholar. A prolific writer, Rizal's pen went beyond the frontiers of novel-writing and invaded other intellectual pastures.

A great contributor to the literature of the Propaganda Movement, Rizal was accused by the Spanish authorities to be behind the blossoming anti-friar demonstrations in the Philippines. His two famous books, the Noli Me Tangere and El Filibusterismo, caused the ire of the the Spanish authorities and the friars. Despite the warnings of his relatives and friends for him not to return, he decided to come home. Jose Rizal knew very well that he was risking his own life. In one of his letters addressed to his countrymen, read in part: "I wish to show those who deny us patriotism that we know how to die for duty and principles. What matters death, if one dies for what one loves, for native land and beings held dear?" 

Dr. Jose Rizal was executed at dawn of December 30, 1896.

Partition of Estate

Partition among heirs is not legally deemed a conveyance of real property resulting in change of ownership. It is not a transfer of property from one to another, but rather, it is a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. It is merely a designation and segregation of that part which belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore, be considered as an act of strict dominion. Hence a special power of attorney is not necessary.

Judicial Clemency to a reformed Judge

A dismissed judge, now 71, who was perpetually banned from public office has been been allowed by the High Court to rejoin the government.

The Supreme Court En Banc, through an eight page resolution by Justice Estela M. Perlas-Bernabe, granted judicial clemency to dismissed Judge Hermin E. Arceo formerly of the San Fernando, Pampanga Regional Trial Court, Branch 43 by lifting his disqualification from re-employment in any branch of the government, including government-owned or –controlled corporations.

Likewise, the High Court ordered its Fiscal Management and Budget Office to compute Arceo’s accrued leave credits, if any, and to release the same to him.

In 1996, the SC dismissed Arceo for gross misconduct and immorality on the complaint of Atty. Jocelyn C. Talens-Dabon, former Clerk of Court of the San Fernando, Pampanga RTC. He sought for judicial clemency in October this year.

Citing Castillo v. Calanog, Jr., the Court noted that the penalty of disqualification imposed on a judge dismissed for immorality in that case was lifted by the SC after the dismissed judge had shown sincere repentance and taking into account his contributions during his tenure in the Judiciary.

The Court, in granting judicial clemency to Arceo, held that he has sufficiently shown his remorse and reformation after his dismissal from the service. It ruled that while Arceo, at 71, had already reached retirement age and can no longer be eligible for regular employment in the public service, “it cannot be doubted that he could still be of service to the government in some other capacity” considering his achievements and mental aptitude. 

The Court found that after his dismissal, Arceo engaged in private practice and most of his cases involve poor litigants, neighbors, and close friends. He submitted to the Court a Certificate of Good Moral Character issued by the Executive Judge of the Malolos City RTC and a Certificate of Favorable Endorsement from the Integrated Bar of the Philippines Bulacan Chapter President attesting to his reformation and recognizing his valuable contributions to the Bar and the Bench. For these services, he was bestowed the award Gawad Bunying Abogadong Bulakenyo last year.

The Court also found that Arceo was granted probation after his conviction by the Sandiganbayan in 2004 for violation of the Anti-Sexual Harassment Lawand Article 336 of the Revised Penal Code and finally discharged after having complied with all the conditions thereof. Thus, all his civil rights which he had lost as a result of his conviction, including the right to be employed in the public service, were restored, ruled the Court.

As for the accrued leave credits, the Court noted that sec. 11, paragraph 1 of Rule 140 of the Rules of Court explicitly exempts accrued leave credits from the penalty of forfeiture of benefits. (AM No. RTJ-96-1336, Talens-Dabon v. Judge Arceo, November 20, 2012)

Supreme Court News

SC News
The Chief Justice presided over SC en banc session. Upon her instructions, the agenda included the decentralization of the Court’s administrative functions with respect to the lower courts, in order to include all inputs. The members of the Court are of one mind on the merits of decentralization, and have agreed on measures to ensure its effective and deliberate implementation, including the creation of a committee headed by Associate Justice Jose Portugal Perez to conduct a needs assessment of decentralization.  Justice Perez was formerly a Court Administrator before he joined the High Tribunal.

Likewise, for the first time in recent history, the Chief Justice and Associate Justices of the Supreme Court of the Philippines will engage in a peer-to-peer exchange with their counterparts in the United States of America.
On 14 December 2012, Chief Justice Maria Lourdes P.A. Sereno, and Associate Justices Presbitero J. Velasco, Jr., Mariano C. del Castillo, and Estela M. Perlas-Bernabe will meet with Chief Justice John G. Roberts, Jr. and the Associate Justices of the United States Supreme Court in Washington, D.C., to discuss, among others, maintaining judicial stability in a rapidly changing environment.
Chief Justice Sereno has likewise been invited by the World Bank, headquartered in the U.S. capital, to deliver the keynote address on Access to Justice and Social Inclusion, in celebration of the Law, Justice and Development Week 2012.  She will be speaking on “The Cost of Injustice.”
Other activities scheduled during the four-day official visit include a meeting with United States Attorney General Eric H. Holder, knowledge sharing with the Federal Judicial Center and the Administrative Office of the U.S. Courts, and a forum on Philippine Judicial Reform sponsored by the U.S.-Philippines Society.

Computation & payment of just compensation

Completion of agrarian reform process over the lands acquired 

under P.D. No. 27 should, for compensation purposes now be completed 

under the RA6657, as amended, with P.D. No. 27 and E.O. 228 having suppletory effect.

Seizure of landholdings or properties covered by P.D. No. 27 did not 

take place on 21 October 1972, but upon the payment of just compensation.

Entitlement to just compensation for standing crops & improvements

A mere lessee of an agricultural land has no right under the Comprehensive Agrarian Reform Law (CARL) to demand for just compensation for its standing crops and improvements from the Land Bank. Its rights as lessee are totally independent of and unaffected by any judgment rendered in an agrarian case. The CARL does not contain any proviso recognizing the rights of a lessee of a private agricultural land to just compensation for the crops it planted and improvements it built. Just compensation for the produce and infrastructure of a private agricultural land logically belongs to the landowner since the former are part and parcel of the latter. The DAR Adjudication Board (DARAB) has no jurisdiction to pass upon the issue of ownership over standing crops and improvements between the landowner and the lessee. This is so, because the right of a lessor and lessee over the improvements introduced by the latter is not an agrarian dispute within the meaning of the CARL. Since lease contract is governed by the Civil Code provisions on lease, it is the Regional Trial Court, as a court of general jurisdiction that can resolve with finality the rights of a lessor and lessee over the improvements built by the latter (G.R. No. 187801, Sept. 13, 2012).

Retrenchment

Retrenchment is the termination of employment initiated by the employer through no fault of and without prejudice to the employees. It is resorted to during periods of business recession, industrial depression, or seasonal fluctuations or during lulls occasioned by lack of orders, shortage of materials, conversion of the plant for a new production program or the introduction of new methods or more efficient machinery or of automation. For a valid retrenchment, the following elements must be present:

(1)    That retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer;

(2)    That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment;

(3)    That the employer pays the retrenched employees separation pay equivalent to one (1) month pay or at least ½ month pay for every year of service, whichever is higher;

(4)    That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and

(5)    That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers

Granting a demurrer to evidence..

Supreme Court Reinstates Dismissal of Libel Cases Due to Procedural Defect

Posted: November 9, 2012; By Bianca M. Padilla

The Supreme Court has recently ordered the reinstatement of the portion of the order of the Regional Trial Court (RTC) in Mandaluyong, Branch 212, which dismissed the libel suits filed by singer-actress Sharon Cuneta-Pangilinan against petitioners Lito Bautista and Jimmy Alcantara for the alleged defamatory articles against her published in the tabloid Bandera. Bautista and Alcantara are Bandera’s Editor and Assistant Editor, respectively. Also charged with libel is Pete G. Ampoloquio, the author of the articles.

The RTC Mandaluyong had ordered the libel suits dismissed insofar as petitioners are concerned after granting the Demurrer to Evidence filed by them alleging that the prosecution had failed to prove their participation as conspirators of the crime charged. Respondent Cuneta-Pangilinan then filed a petition for certiorari to the Court of Appeals (CA) which the latter granted. The CA also ordered the cases against petitioners to be remanded to the trial court.

In a 19-page decision penned by Justice Diosdado M. Peralta, the Court's Third Division unanimously granted petitioners’ petition for review of the CA’s decision. The Court held that petitioners “can no longer be held liable in view of the procedural infirmity that the petition for certiorari [filed by Sharon Cuneta-Pangilinan] was not undertaken by the Office of the Solicitor General (OSG), but instead by respondent in her personal capacity. Moreover, although the conclusion of the trial court may be wrong, to reverse and set aside the Order granting the demurrer to evidence would violate petitioners’ constitutionally enshrined right against double jeopardy.”

The Court reiterated the ruling in People v. Santiago that “[i]n criminal cases where the offended party is the State, the interest of the private complainant or private offended party is limited to the civil liability… If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be taken only by the State through the Solicitor General… However, the said offended party or complainant may appeal the civil aspect of the case despite the acquittal of the accused.” The Court found that in this case, the petition filed before the CA by Cuneta-Pangilinan essentially questioned the criminal aspect of the RTC’s order of dismissal.

The Court stressed that the granting of a Demurrer to Evidence is tantamount to a dismissal of the case on the merits and a “review of the order granting the demurrer to evidence will place the accused in double jeopardy.” (GR No. 189754, Bautista v. Cuneta-Pangilinan, October 24, 2012)

Bar Matter No. 850

RULE 7
EXEMPTIONS

Section 1. Parties exempted from the MCLE

The following members of the Bar are exempt from the MCLE requirement:

(a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executives Departments;

(b) Senators and Members of the House of Representatives;

(c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education;

(d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;

(e) The Solicitor General and the Assistant Solicitor General;

(f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;

(g) The Chairmen and Members of the Constitutional Commissions;

(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman;

(i) Heads of government agencies exercising quasi-judicial functions;

(j) Incumbent deans, bar reviews and professors of law who have teaching experience for at least 10 years accredited law schools;

(k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lectures of the Philippine Judicial Academy; and

(l) Governors and Mayors.

a delicate function of Clerks of Court...

Clerks of court perform a delicate function as designated custodians of the court's funds, revenues, records, properties and premises. As such, they are generally regarded as treasurer, accountant, guard and physical plant manager thereof. It is the clerks of court’s duty to faithfully perform their duties and responsibilities as such "to the end that there was full compliance with function, that of being the custodian of the court’s funds and revenues, records, properties and premises. They are the chief administrative officers of their respective courts. It is also their duty to ensure that the proper procedures are followed in the collection of cash bonds. Thus, their failure to do so makes them liable for any loss, shortage, destruction or impairment of such funds and property.

It is the duty of clerks of court to perform their responsibilities faithfully, so that they can fully comply with the circulars on deposits of collections. They are reminded to deposit immediately, with authorized government depositaries, the various funds they have collected because they are not authorized to keep those funds in their custody. The unwarranted failure to fulfill these responsibilities deserves administrative sanction and not even the full payment of the collection shortages will exempt the accountable officer from liability.

By failing to properly remit the cash collections constituting public funds, respondent violated the trust reposed in her as disbursement officer of the Judiciary. Her failure to deposit the said amount upon collection was prejudicial to the court, which did not earn interest income on the said amount or was not able to otherwise use the said funds. Her transgressions and her failure to satisfactorily explain her conduct, leave us no choice but to hold her liable for dishonesty, and to order her dismissal from office. The Court condemns any conduct, act or omission which violates the norm of public accountability or diminishes the faith of the people in the Judiciary (A.M. No. P-11-2965, July 31, 2012).

for vacant position, associate justice SC..

JBC Releases List of Applicants and Recommendees for SC Associate Justice

Included in the list are Bato, Ramon Jr. M.; Bisquera, Joe-Santos B.; Carandang, Rosemari D.; Cornejo, Maria Cristina J.; Cruz-Avisado, Adoracion P.; De Leon, Magdangal M.; Dicdican, Isaias P.; Diokno, Jose Manuel I.; Floro, Florentino Jr. V.; Herbosa, Teresita J.; Leonen, Marvic M.; Lotilla, Raphael Perpetuo; Reyes, Andres Jr. B.; Reyes, Jose Jr. C.; Villanueva, Cesar L.; and Tijam, Noel G.

According to the JBC, all are still subject to the screening process of the JBC, i.e., their qualifications will still be evaluated by the JBC.

dismissed due to technicality

The Supreme Court has recently ordered the Court of Appeals (CA) to reinstate and to proceed with dispatch as to the Republic of the Philippines’ petition for certiorari which the CA had earlier dismissed for late filing. In the said petition, the Republic  assailed the trial court’s denial of its urgent motion for a writ of possession and order for it to immediately pay private respondent St. Vincent de Paul Colleges, Inc. 100% of the value of the property the Republic had sought to expropriate for the construction of the Manila-Cavite Toll Expressway Project (MCTEP).

In dismissing the Republic’s petition for certiorari for being filed out of time, the CA had relied on the SC's Laguna Metts Corporation ruling that the 60-day period to file a petition for certiorari is non-extendible.

In a 12-page decision penned by Justice Bienvenido L. Reyes, the Court’s Second Division, however, reiterated that while under Rule 65, sec. 4 and as applied in Laguna Metts Corporation, the general rule is that a petition for certiorari must be filed within 60 days from notice of the judgment, order, or resolution sought to be assailed, under exceptional circumstances and subject to the sound discretion of the Court, said period may be extended pursuant to the Domdom, Labao, and Mid-Islands Power General Corporation rulings.

In this case, the Court held that the CA should have admitted the Republic’s petition since first, due to its (the CA’s) own lapse, thinking that what the Republic had filed was a petition for review, it  granted the extension sought by the Republic; second, because of the public interest involved, i.e., expropriation of private property for public use (MCTEP); and finally, no undue prejudice or delay will be caused to the parties in admitting the petition. (GR No.192908, Republic v. St. Vincent de Paul Colleges, Inc., August 22, 2012)

Execution/Garnishment v. Government

“Trial judges should not immediately issue writs of execution or garnishment against the Government or any of its subdivisions, agencies, and instrumentalities to enforce money judgments. They should bear in mind that the primary jurisdiction to examine, audit, and settle all claims of any sort from the Government or any of its subdivisions, agencies, and instrumentalities pertains to the Commission on Audit (COA) pursuant to Presidential Decree No. 1445 (Government Auditing Code of the Philippines).”

The Court stressed that the UP is a government instrumentality performing the State’s constitutional mandate of promoting quality and accessible education and that all the funds going into its possession, including interest from its bank deposits constitute a “special trust fund,” the disbursement of which should always be aligned with the UP’s mission and purpose, and should always be subject to auditing by the COA. “Hence the funds subject of this action could not be validly made the subject of the RTC’s writ of execution or garnishment. The adverse judgment rendered against the UP in a suit to which it had impliedly consented was not immediately enforceable by execution against the UP because suability of the State did not necessarily means its liability,” ruled the Court. (UP v. Dizon, August 23, 2012)

Hotel's Civil Liability

“The hotel owner is liable for civil damages to the surviving heirs of its hotel guest whom strangers murder inside his hotel room.”

“The hotel business is imbued with public interest,” said the Court. “Catering to the public, hotelkeepers are bound to provide not only lodging for their guests but also security to the persons and belongings of their guests. Applying by analogy Article 2000, Article 2001, and Article 2002 of the Civil Code (all of which concerned the hotelkeepers’ degree of care and responsibility as to the personal effects of their guests), we hold that there is much greater reason to apply the same if not greater care and responsibility when the lives and personal safety of their guests are involved. Otherwise, the hotelkeepers would simply stand idly by as strangers have unrestricted access to all the hotel rooms on the pretense of being visitors of the guests, without being held liable should anything untoward befall the unwary guest.

burden of proof

In suspension and disbarment proceedings, lawyers enjoy the presumption of innocence, and the burden of proof rests upon the complainant to clearly prove her allegations by preponderant evidence. In the absence of preponderant evidence, the presumption of innocence of a lawyer continues and the complaint against him must be dismissed.

SC allows lawyer who re-acquired philippine citizenship to practice law.

The Supreme Court En Banc has recently granted the petition of a lawyer to practice law in the Philippines once again after losing the said privilege to practice law when he became a citizen of the United States of America in 1981 and then re-acquiring his Philippine citizenship in 2006 pursuant to RA 9225, the Citizenship Retention and Re-Acquisition Act of 2003.

The Court further directed the Office of the Bar Confidant (OBC) to draft the necessary guidelines for the re-acquisition of the privilege to resume the practice of law for the guidance of the Bench and the Bar.  

In a six-page resolution penned by Justice Bienvenido L. Reyes, the Court unanimously held that upon favorable recommendation from the OBC, Atty. Epifanio B. Muneses satisfactorily complied with all the requirements sought by the OBC and met all the qualifications and none of the disqualifications for membership in the Bar. In particular, he had submitted in compliance the following: 1) Petition for Re-Acquisition of Philippine Citizenship; 2) Order (for Re-Acquisition of Philippine Citizenship); 3) Oath of Allegiance to the Republic of the Philippines; 4) Certificate of Re-Acquisition/Retention of Philippine Citizenship issued by the Bureau of Immigration, in lieu of the Identification Certificate; 5) Certification dated May 19, 2010 of the IBP-Surigao City Chapter attesting to his good moral character as well as his updated payment of annual membership dues; 6) Professional Tax Receipt (PTR) for the year 2010; 7) Certificate of Compliance with the MCLE for the 2nd compliance period; and 8) Certification dated December 5, 2008 of Atty. Gloria Estenzo-Ramos, Coordinator, UC-MCLE Program, University of Cebu, College of Law attesting to his compliance with the MCLE.

“The Court sees no bar to the petitioner’s resumption to the practice of law in the Philippines,” the Court declared, subject to the condition that Atty. Muneses re-take the Lawyer’s Oath and pay the appropriate fee.  

The Court reiterated that Filipino citizenship is a continuing requirement for the practice of law, loss of which means the termination of one’s membership in the Bar and the privilege to engage in the practice of law. “Thus, a Filipino lawyer who becomes a citizen of another country but later re-acquires his Philippine citizenship under RA 9225 remains to be a member of the Philippine Bar,” it added. It also noted that the right to resume the practice of law, however, is not automatic and Section 5 of RA 9225 states that a person who “intends to practice his profession in the Philippines must apply with the proper authority for the license or permit to engage in such practice.” (BM No. 2112, In Re: Petition to Re-Acquire the Privilege to Practice Law in the Philippines, Epifanio B. Muneses, Petitioner, July 24, 2012)

attorney-client relationship

An attorney is employed — that is, he is engaged in his 

professional capacity as a lawyer or counselor — when he is listening to 

his client’s preliminary statement of his case, or when he is giving advice 

thereon, just as truly as when he is drawing his client’s pleadings, or 

advocating his client’s pleadings, or advocating his client’s cause in open 

court.

Congress representation in JBC

The Supreme Court today allowed Senator Francis Joseph G. Escudero and Rep. Niel C. Tupas, Jr. to both sit in the deliberations of the Judicial and Bar Council (JBC) on who would be included in the short list of nominees for Chief Justice to be submitted to Malacañang.

The High Court’s directive came a day after it heard in oral arguments the motion for reconsideration of its July 17, 2012 decision filed by the Office of the Solicitor General representing Sen. Escudero and Rep. Tupas, Jr., on the Court’s July 17, 2012 decision on GR No. 202242, Francisco I. Chavez v. Judicial and Bar Council, which held that only one member of Congress can sit as representative in the JBC deliberations.

In a three-page resolution, the Court also suspended the effect of the second paragraph of the dispositive portion of the July 17, 2012 decision, which reads: “This disposition is immediately executory.

The Court, in its latest resolution, also gave the JBC, Sen. Escudero, Rep. Tupas, Jr., and Francisco I. Chavez 10 days from notice within which to file their respective memoranda.

In the best interest of justice, the High Court also held that all its present members, including those who in the meantime have inhibited themselves, be given the opportunity to take part in the final deliberations and resolution of the petition considering the risk of either under-representation or over-representation of Congress in the JBC.

“The Court finds it more equitable for the present members of the JBC to resume their task of selecting nominees for the vacant position of the Chief Justice. Accordingly, pending the final resolution of this petition, Senator Escudero and Congressman Tupas, Jr., in their capacities as representatives of Congress, may simultaneously sit as ex officio members of the JBC and exercise the functions flowing therefrom,” held the Court.

SC Justice Diosdado M. Peralta, who presided the JBC panel interview of the candidates for the position of the next Chief Justice held from July 24 to 27, 2012, also presided during the oral arguments held on Wednesday, August 2, 2012. Also participating in the oral argument were SC Justices Bienvenido L. Reyes, Jose Portugal Perez, Roberto A. Abad, Lucas P. Bersamin, Peralta, Mariano C. Del Castillo, Martin S. Villarama, Jr., Jose Catral Mendoza, and Estela M. Perlas-Bernabe. 

Acting Chief Justice Antonio T. Carpio and Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D. Brion, and Maria Lourdes P.A. Sereno inhibited from the oral arguments as they are among those considered for nomination by the JBC to the Chief Justice post. (Min. Res., GR 202242,Chavez v. JBC, August 3, 2012)

PAGC abolished

The Supreme Court En Banc has unanimously dismissed the petition of Prospero Pichay, Jr., former Chairperson of the Board of Trustees of the Local Water Utilities Administration (LWAU), questioning the constitutionality of EO 13 (Abolishing the Presidential Anti-Graft Commission and Transferring its Investigative, Adjudicatory, and Recommendatory Functions to the Office of the Deputy Executive Secretary for Legal Affairs, Office of the President). Pichay was investigated for grave misconduct in the performance of his duties by Executive Secretary Paquito Ochoa by virtue of the said EO.

In the 22-page decision penned by Justice Estela M. Perlas-Bernabe, the Court ruled that Pichay failed to discharge the burden of proving the illegality of EO 13. It ruled that the abolition of OAGC and the transfer of functions to IAD-ODESLA is within the prerogative of the President as Section 31 of the Administrative Code of 1987 (EO 292) expressly “vests in the President the authority to reorganize the offices under him in order to achieve simplicity, economy and efficiency.” The Court stressed that both offices belong to the Office of the President Proper.

The Court held that the reorganization was a mere alteration of the administrative structure of the existing structure of ODESLA through the establishment of a Third Division - Investigative and Adjudicatory Division through which ODESLA could take on the additional functions it has been tasked to discharge under EO 13. Moreover, the Court held that the reorganization was done in good faith as it is done for purposes of economy and efficiency.

EO 13 also does not usurp on the legislative power to appropriate funds even if it does not allocate a specific amount for the IAD-ODESLA in the annual budget of the Office of the President since the 1987 Constitution provides that “the President may augment any item in the General Appropriations Law for their respective offices from savings in other items of their respective appropriations.” As such, the President is merely allocating the existing funds previously appropriated by Congress for his office, the Court explained.

The Court also ruled that IAD-ODESLA is a fact-finding and recommendatory body not vested with quasi-judicial powers since it did not have the power to settle controversies nor adjudicate cases. Neither does EO 13 encroach upon the jurisdiction of the Office of the Ombudsman as the Ombudsman’s jurisdiction is to investigate and prosecute criminal cases cognizable by the Sandiganbayan while IAD-ODESLA only deals with administrative cases. The Court stressed that the authority of the Ombudsman to investigate elective and appointive officials in the government is not exclusive.

The Court likewise noted that EO 13 did not violate Pichay’s right to due process and equal protection. “In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process,” it declared. Citing Farinas v. Executive Secretary, it held that “the equal protection clause is not infringed by legislation which applies alike to all persons within such class.” Moreover, it noted that along with the President’s power to remove and/or discipline presidential appointees comes the authority to investigate such public officials. (GR No. 196425, Pichay, Jr. v. Office of the Deputy Executive Secretary, July 24, 2012)

Appeal from RTC sitting as SAC

While the general rule is that appeals raising pure questions of law from decisions of Regional Trial Courts are taken to the Supreme Court via Rule 45 petition, decisions of trial courts designated as Special Agrarian Courts are only appealable to the Court of Appeals. The right to appeal is a remedy of statutory origin. As such, this right must be exercised only in the manner and in accordance with the provisions of the law authorizing its exercise. The special jurisdiction of the Regional Trial Court sitting as Special Agrarian Court is conferred and regulated by the Comprehensive Agrarian Reform Law, and appeals therefrom are governed by Section 60 thereof. The rule expressly states that appeals from the Special Agrarian Courts must be taken to the Court of Appeals without distinction between appeals raising questions of fact and those dealing purely with questions of law. Where the law does not distinguish, neither should we.. "Ubi lex non distinguit nec nos distinguere debemus."

"squatting is robbery in band" - neal cruz

“If somebody enters your yard and claims it as his own, what will you do? Will you allow him to get it from you?” President Aquino asked this question during his State of the Nation Address (Sona) last Monday, referring to the Chinese incursion into Philippine waters. The President doesn’t realize it, but the situation in which the Philippines finds itself regarding the ownership claims of China on islets inside Philippine territory is exactly the same situation that hundreds of thousands of Filipino property owners find themselves in. Squatters have entered their properties illegally and refuse to leave.

Like the Philippines which cannot fight a giant like China, the property owners cannot fight squatter colonies. What can one lot owner do against hundreds of squatters who do not recognize any law? Go to the local government unit to ask for help? I tried that, asking the help of the Quezon City government, during the terms of four different mayors, to eject squatters from my property. They did not do anything. The squatters are still there and have, in fact, increased. Local government officials do not want to touch squatters because they are voters. Truth to tell, many of them were brought in by the officials themselves shortly before elections.

So what do you do, go to the police? But the police won’t do anything either. They will ask you to get a court order even if you caught the squatters still in the process of building their shanties inside your property and could be prevented by the police from doing that.

Go to court? But the courts take an eternity to decide cases, during which time the number of squatters increases, and you spend a fortune for lawyers’ fees. The lawyers of the squatters, on the other hand, use many ploys on overburdened judges to delay cases.

Meanwhile, local government units, while refusing to help owners who are victims of squatters, keep raising real estate taxes.

Quezon City even added a surcharge to the tax—to fund the relocation of squatters, it says.  Isn’t that the responsibility of the local government? The citizens are already paying the basic real estate tax in addition to many other taxes.

Quezon City boasts that it is the richest city in the Philippines, with billions of pesos deposited in banks. It can afford to relocate and build homes for the squatters, but it is doing nothing to return to the taxpaying citizens their properties squatted on. Instead, it is asking the citizens to pay more. The irony is that taxes paid by honest, law-abiding citizens will be used for lawbreakers stealing the properties of the taxpayers. Meanwhile, councilors and other City Hall officials are stealing the money of the taxpayers through ghost employees and overpriced projects.

In return for the taxes, the government is supposed to serve the people, especially by protecting their property. And although the Quezon City administration is already collecting the surcharge, there is no sign that it would relocate the squatters soon. Not even one hollow block has been laid for medium-rise homes for squatters. And there is no assurance that the lots of those who are already paying the surcharge would be cleared of illegal occupants first.

What about the national government? As we can see, it is doing nothing. To make matters worse, it even repealed the law against squatting to court the squatters’ votes. As a result, it made the already bad squatting problem worse as more and more opportunists, encouraged by the repeal, join the fun and also squat. I know a number of people who are gainfully employed and can afford to buy or rent a home but who prefer to squat.

“Why pay rent? Squatting is free,” one of them said.

Not only that, some professional squatters rent out parts of lots they do not own, and steal electricity and water and sell them to other squatters. Some have two or more shanties that they rent out. Others have shops and stores from which they derive profit but pay no realty or business tax to the government or rent to the owner of the property.

As for the owner, he is forced by the local government to pay realty taxes but the local government does not help him reclaim his property. Instead, the taxes he paid are used to pamper the squatters. Officialdom has even changed the term “squatter” to “informal settler” so as not to offend the sensibilities of the squatters. But a squatter, by any other name, is still a squatter.

Squatting, by any other name, is robbery in band. A person or group of persons takes over, by force, somebody else’s property without his knowledge and permission. Yet under present laws, there is no punishment for this type of robbery in band. And the government, national or local, does nothing to help the victims. They are afraid of the lawbreakers. That is like a whole town in the old American West afraid of a gang of bandits terrorizing its citizens. Who is the Lone Ranger or Wyatt Earp who would fight the lawbreakers?

President Aquino? Maybe. We hope so.

“Nothing is impossible,” he said in his Sona. It is not impossible to solve the squatting problem if only the government will honestly try to do it. The President can create a task force whose only purpose is to solve this pestilence in our society. Or it can be an important role of the planned Department of Housing. As I see it, the punishment for squatting should be restored. We have already seen what its repeal has done and is still doing.

A country can never really develop its tourism potentials or attract tourists if squatter colonies dot its landscape. No matter what statistics you show to prove progress, there can never be real progress as long as there are people who are not provided with homes.

with due respect.. by Justice Panganiban

"Since it was founded 111 years ago on June 11, 1901, the Supreme Court (SC) has always been led by an insider, except only once during World War II when the country was occupied by a foreign power. In fact, the exception, former Speaker Jose Yulo, was named chief justice by the occupying Japanese military command, not by a duly elected President. Starting the tradition. Moreover, since it was institutionalized in 1987, the Judicial and Bar Council (JBC) has always, without any exception, nominated only insiders to the top judicial post. In its 25-year history, the JBC has included in its short list only incumbent Supreme Court justices. In the past, the nomination process for the post was relatively easy. The JBC simply chose the most senior Supreme Court justices and left the appointment of the most deserving among them to the sound discretion of the President. In this way, the JBC preserved the long-held tradition of choosing only insiders for the top post. In the early 1900s—during the American regime—insiders were uniformly named chief justices to succeed Cayetano Arellano (the first and longest serving, who held the post from June 11, 1901, to April 1, 1920). After Arellano, Victorino Mapa (second most senior), Manuel Araullo (also second most senior) and Ramon Avanceña (fourth most senior) were appointed by US Presidents Woodrow Wilson, Warren Harding and Calvin Coolidge, respectively. The fifth chief justice, the martyred Jose Abad Santos, also an insider, was chosen by President Manuel Quezon in 1941. Not even Ferdinand Marcos broke the insider tradition. During his 21-year reign, he named six chiefs (Roberto Concepcion, Querube Makalintal, Fred Ruiz Castro, Enrique Fernando, Felix Makasiar and Ramon Aquino). All of them were insiders; the first four were the most senior justices, and the last two, the second most senior. Even when all the justices resigned as a consequence of the 1982 bar scandal, President Marcos—at the height of martial law—did not name an outsider. He was tempted to choose one, but his choice—then University of the Philippines president Edgardo Angara—respectfully declined and subtly reminded the martial law ruler of the insider tradition. Preserving the tradition. Democracy icon Cory Aquino, presiding over her reformist government, opted to preserve the insider tradition. After the peaceful Edsa revolution in 1986, all the Supreme Court justices resigned, enabling President Cory to reorganize the tribunal. She named Claudio Teehankee, the then most senior magistrate, as chief justice. She appointed three other chiefs, Pedro Yap, Marcelo Fernan and Andres Narvasa, but took the precaution of lining them up first as associate justices. Two other associate justices, Ameurfina Melencio-Herrera and Hugo Gutierrez, had more experience in the high court than Yap, Fernan and Narvasa, having been named there by Marcos in 1979 and 1982, respectively. But their reappointments to the Supreme Court by Mrs. Aquino were dated later than Yap, Fernan and Narvasa. So, based on the dates of their reappointments, Herrera and Gutierrez appeared to be junior to Yap, Fernan and Narvasa. But in actual fact, Herrera and Gutierrez had much longer service in the high court. Yap served barely two years as associate justice before being elevated to the top in 1988. However, regardless of whether they were more senior or not, the fact remains that at the time of their appointments as chief justice, Yap, Fernan and Narvasa were already associate justices, and thus considered insiders. To repeat, the JBC has always nominated only insiders. When Chief Justice Hilario G. Davide Jr. retired, Sen. Miriam Defensor-Santiago wanted to be his successor, but her application was filed a few days late. The JBC refused to extend the period for nominations and chose only insiders. Then, when I retired on Dec. 6, 2006, Senator Santiago again aspired and went through the nomination process. However, she failed to obtain the necessary votes to be included in the JBC short list. Senator Santiago, a former judge, may have been qualified to be chief justice, but I think she was not included in the short list because of the insider tradition. Confronting the tradition. The JBC has now finished the nomination process and is poised to vote on a short list in the coming week. Of the 20 finalists, six are incumbent Supreme Court justices while 14 are outsiders, including Cabinet members, academics and practicing lawyers. For the first time, so many outsiders are aspiring for the top. The insider tradition is entrenched on the rationale that the highest judicial post is career in nature, and that an appointment thereto requires maturing and seasoning that are best acquired through actual high court experience. It also discourages shady politicians from using the vacancy as a bargaining chip in chaotic partisan games. By limiting the field only to worthy incumbent Supreme Court justices, the JBC can better assure judicial independence, so concludes the rationale. Understandably, incumbent justices frown on complete outsiders, believing that the new chief, like them, should queue up, learn the job hands on, and await his or her turn. An outsider, especially a young one who would dislodge those waiting for their turn, would naturally find difficulty leading the high court and reforming the judiciary. However, times are changing. Can the JBC now justify the nomination and possible appointment of an outsider? Will it dare break the age-old insider tradition? And for what reasons? Starting tomorrow, the JBC will confront these questions and answer them."

strict compliance, execution..

 It is a settled rule that a writ of execution should strictly conform to every essential particular of the promulgated judgment as indicated in the dispositive portion (fallo) thereof since it is that portion of the decision that actually constitutes the resolution of the court.  If there is a conflict between the dispositive portion and the opinion of the court contained in the body of the decision, it would be the dispositive portion that would be controlling.  This principle is based on the theory that the dispositive portion is the final order of the court while the opinion is merely a statement ordering nothing.  A writ of execution would be rendered void if it is in excess of and beyond the original judgment or award spelled out in the dispositive portion of the decision.

            Respondent clerk of court cannot be faulted for issuing a writ of execution in accordance with the literal text of the dispositive portion of the decision.  

ASEAN must have a unified stand..

"Last April, a government spokesman in Cambodia, current holder of the revolving chair of the Association of Southeast Asian Nations, said Phnom Penh wanted ASEAN to have “one voice, one destiny, one community.”

Last Friday, that one voice was nowhere to be heard at the conclusion of the ASEAN foreign ministers’ meeting in the Cambodian capital. Philippine officials noted that it was the first time in the grouping’s 45 years of existence that ASEAN failed to issue a joint communiqué at the end of its meeting.

Cambodia had been one of two reported holdouts in ASEAN efforts to issue a joint statement calling for a Code of Conduct in the South China Sea, with dispute settlement to be based on international agreements. China, which needed to come on board, made it clear it had no intention to do so. Beijing stood firm on its position of resolving territorial disputes in its surrounding waters bilaterally. Its ally Cambodia agreed, insisting that bilateral issues should not be included in an ASEAN communiqué. Not surprisingly, Beijing hailed the ASEAN meeting as “productive.”

Where the vision of “one voice, one destiny, one community” is now headed is uncertain. The dispute over the South China Sea, which the Chinese claim nearly in its entirety, involves six capitals including Manila. The sea encompasses busy shipping lanes where freedom of navigation should be unimpeded. That is not a bilateral issue but a multilateral one with international ramifications.

Yet ASEAN shied away from taking a common stand on the issue, with some news reports saying Beijing leaned heavily on Phnom Penh to block the joint communiqué. It may bode well for the two countries’ relations, but the impact on ASEAN unity and cooperation can only be negative. When a group whose members are smaller in size faces off with a giant, unity is the only hope for negotiating from a position of relative strength. There is a popular saying about what happens when a group becomes divided instead."

Right to information on matters of public concern vs Independence of the Judiciary.

It is the consensus of the Justices and the various judges associations that while the Constitution holds dear the right of the people to have access to matters of concern, the Constitution also holds sacred the independence of the Judiciary. The uniform position of the said Magistrates and various Judges' associations that disclosure of SALN of members of the Judiciary must be made in accord with the guidelines set by the Supreme Court and under such circumstances that would not undermine the independence of the Judiciary. Investigations conducted by the Office of the Ombudsman in a criminal case without prior referral of the criminal case to the Supreme Court is an encroachment of a constitutional duty that ran afoul to the doctrine of separation of powers. The Supreme Court is vested with exclusive administrative supervision over all courts and its personnel. Prescinding from this premise, the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge or court employee, involves an administrative matter. The Ombudsman cannot dictate to, and bind the Court, to its findings that the case before it does or does not have administrative implications. To do so is to deprive the Court of the exercise of its administrative prerogatives and to arrogate unto itself a power not constitutionally sanctioned. This is a dangerous policy which impinges, as it does, on judicial independence.

Like all constitutional guarantees the right to information, with its companion right of access to official records, is not absolute. The constitution also provides that the people's right to know is limited to "matters of public concern" and is further subject to such limitations as may be provided by law. This could only mean that while no prohibition could stand against access to official records, such as SALN, the same is undoubtedly subject to regulation.

the exercise of discretion

grave abuse of discretion “implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.”

contenders for CJ post, per JBC list

SUPREME COURT CHIEF JUSTICE
Vice Hon.  RENATO C.  CORONA
(Application Period:  June 6- July 2,  20 12)
1.  ABAD,   ROBERTO A.
2.  BAUTISTA,  ANDRES B.
3.  BRION, ARTURO D.
4.  CAGAMPANG-DE CASTRO,  SOLEDAD M.
5.  CARPIO ANTONIO T.
6.  DE  LIMA,  LEILA M.
7.  DIOKNO,   JOSE MANUEL I.
8.  HERBOSA,  TERESITA J.
9.  JARDELEZA,   FRANCIS H.
10.  LEGARDA,  MARIA CAROLINA T.
11 .  LEONARDO-DE CASTRO,  TERESITA J.
12.  MORALES,  RAFAEL A.
13.  PANGALANGAN,   RAUL C.
14.  RODRIGUEZ,   RUFUS B.
15.  SARMIENTO,   RENE V.
16.  SERENO,  MARIA LOURDES A.
17.  SIAYNGCO,   MANUEL JR.  OJ.
18.  VALDEZ,  AMADO D.
19.  VELASCO,   PRESBITERO JR.  J.
20.  VELASQUEZ,  VICENTE R.
21.  VILLANUEVA,  CESAR L.
22.  ZAMORA,   RONALDO B.

perfection of an appeal

A decision dismissing a case for failure of respondent to perfect an appeal within the reglementary period should not be taken as a decision based on sheer technicalities only, but rather based on lack of jurisdiction as the impugned decision had long become final and executory. Perfection of an appeal in the manner and within the period permitted by law is not only mandatory but also jurisdictional. Failure to perfect an appeal renders the judgment of the court or quasi-judicial body or tribunal final and executory.

code of conduct

High-strung and belligerent behavior has no place in government service where the personnel are enjoined to act with self-restraint and civility at all times even when confronted with rudeness and insolence. This standard is applied with respect to a court employee's dealings not only with the public but also with his/her co-workers in the service. Soliciting is prohibited under The Code of Conduct for Court Personnel. The Supreme Court has constantly reminded court personnel that such act is highly improper conduct as all forms of solicitations and receipt of contributions, directly or indirectly, are prohibited. That is why the Court provides the rule against any form of solicitations of gift or other pecuniary or material benefits for himself/herself from any person, whether or not a litigant or lawyer, to avoid any suspicion that the major purpose of the donor is to influence the court personnel in performing official duties (A.M. No. P-09-2720, Per Curiam).

SC Holds Unconstitutional Appointment of Reynaldo A. Villar as COA Chair

Posted: June 4, 2012; By Jay B. Rempillo

The Supreme Court recently declared unconstitutional the appointment of then Commission on Audit (COA) Commissioner Reynaldo A. Villar to the position of COA Chair to replace Guillermo N. Carague who ended his seven-year term with the Commission.

In a 30-page decision penned by Justice Presbitero J. Velasco, Jr., the Court En Banc held that Villar’s appointment violated sec. 1(2), Art. IX(D) of the Constitution which reads: “The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment….Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor.”

“[T]hen President Macapagal-Arroyo could not have had, under any circumstance, validly appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was not legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the corresponding appointment would effectively breach the clear purpose of the Constitution of giving to every appointed so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA Commissioner like respondent Villar who serves for a period less than seven years cannot be appointed as chairman when such position became vacant as a result of the expiration of the 7-year term of the predecessor (Carague). Such appointment to a full term is not valid and constitutional, as the appointee will be allowed to serve more than seven years under the constitutional ban,” ruled the Court.

The Court construed Sec. 1(2), Art. IX(D) of the Constitution as follows:

The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven years; an appointment for a lesser period is void and unconstitutional; the appointing authority cannot validly shorten the full term of seven years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution;

Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be for the unexpired portion of the term of the predecessors, but such appointments cannot be less than the unexpired portion as this will disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D);

Members of the Commission who were appointment for a full term of seven years and who served the entire period, are barred from reappointment to any position in the Commission;

A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment to the position of Chair for the unexpired portion of the term of the departing chair. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service as commissioners and the unexpired period of the term of the predecessor will not exceed seven years and provided further that the vacancy in the position of Char resulted from death, resignation, disability or removal by impeachment; and that

Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.

On February 15, 2001, then President Gloria Macapagal-Arroyo appointed Carague as COA Chair for a term of seven years, pursuant to the 1987 Constitution. On February 7, 2004, Arroyo appointed Villar as third COA member for a seven-year term starting February 2, 2004 until February 2, 2011. Following Carague’s retirement in 2008, Villar was designated as acting COA Chair and on the same year was nominated and appointed COA Chair. Villar, whose appointment was confirmed by the Commission on Appointments on June 11, 2008, was to serve as COA Chair, as expressly indicated in the appointment papers, until the expiration of the original term of his office as COA Commissioner or on February 2, 2011. However, Villar raised the matter to the High Court, arguing that his term of office as COA Chair is up to Feb 2, 2015, or seven years reckoned from February 2, 2008 when he was appointed to that position.

While his petition in the Court was still pending, Villar wrote President Benigno S. Aquino III on February 22, 2011 signifying his intention to step down from office upon the appointment of his replacement. Subsequently, he vacated his post upon appointment of Ma. Gracia Pulido-Tan.

While the case has been deemed moot due to the intervening appointment of Tan and resignation of Villar, the Court considered the instant case as falling within one of the requirements for review of a moot and academic case since the case is “of transcendental importance, since it obviously has ‘far-reaching implications,’ and there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous cases.”

Senior Justice Antonio T. Carpio and Justice Jose Catral Mendoza wrote separate concurring and dissenting opinions.

Justice Carpio voted to grant the petition and to declare Villar’s appointment as Acting Chair and Chair of COA unconstitutional, adding that Villar’s appointment as COA Chair is a reappointment prohibited by the Constitution. He opined that in order for Villar to take the position of COA Chair, he had to cut short his seven-year term, which means Villar resigned as COA Commissioner. After such resignation, Villar could no longer be reappointed to the COA, either as Commissioner or Chair.

For his part, Justice Mendoza opined that the promotion of Villar was legal but he could serve up to February 15, 2011 only because his tenure should not exceed seven years. He said that “The [majority] position that a commissioner cannot be promoted in case of expiration of a term of chairman has no clear and concrete constitutional basis. There is nothing at all in the subject constitutional provision which expressly or implied restricts the promotion of a commissioner in situations where the tenure of his predecessor is cut short by death, disability, resignation or impeachment only.” (GR No. 192791,Funa v. COA Chair, April 24, 2012)