Tuesday, July 31, 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."

Saturday, July 28, 2012

"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."

Saturday, July 21, 2012

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.  

Saturday, July 14, 2012

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."

Sunday, July 8, 2012

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.

Saturday, July 7, 2012

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.