Introduction
“Brief” means “concise or short in length.” In law it is “a concise presentation of the facts of client’s case” (Webster’s Encyclopedic Dictionary 1992). The papers were carried in a “briefcase.”
Black’s Law Dictionary 1968 says that in American practice it was a document prepared by counsel as a basis for an argument on appeal, and usually filed for the information of the court, or within a rule of court requiring counsel to furnish briefs, implies some kind of statement of the case for the information of the court. While in English practice, it is the document prepared by an attorney (solicitor?), and given to the barrister before trial, for his instruction and guidance.
Citing Black, Mellinkoff says that the English brief is a written case summary for the guidance of a barrister; the American brief for the guidance of the court (The Language of the Law 1963).
An older dictionary descriptively mentions the contents of a trial brief which is “to inform the person who tries the case” and a brief on error or appeal (Bouvier’s Law Dictionary 1914). There is a joke among English-trained lawyers, which still crops up today, about a lady barrister who embarrassingly could not proceed with her case because she had lost her brief.
To create order out of chaos is human. The trial brief was to ensure that the barrister did not go astray, the appellate brief as its name implies was to compel meandering, verbose, and elusive counsel to go to the point.
Later the trial brief was an instrument of trial strategy or “battle plan” prepared by the trial lawyer, and was a closely-guarded secret.
U.S. and Philippine Practice
At the turn of the century American lawyers arrived and were ubiquitous on the legal scene, even up to the Supreme Court. They introduced their procedural practices. The Code of Civil Procedure which took effect on October 1, 1901 (Act No. 190 of the Philippine Commission) did not say anything about trial briefs, which were privately prepared by lawyers. Much less about pre-trial briefs, although a step in that direction is perhaps Sec. 134 on “Agreed Statement of Facts.” The 1940 Rules of Court already had Rule 25 on “Pre-Trial” and its single section states that it is discretionary on the court, enumerates its objectives which is still repeated today, and lays down the contents and effect of a pre-trial order. The 1964 Rules had Rule 20 which makes pre-trial mandatory and is more elaborate with five sections. Nothing is said about pre-trial briefs.
But of course there were occasions when a judge would want more clarification of disputed questions of evidence or law, and would require a trial lawyer to submit a “trial memorandum” on such matters. Sometimes this was volunteered by the lawyer, if he thought that it would help his persuasion on the judge. This took place in the course of a trial, but eventually it came to pass that lawyers volunteered or were ordered to file memoranda at the close of the evidence and before the case was deemed submitted for decision.
Trial lawyers consider the trial brief indispensable for trial preparation. The more important and complicated a case, the more preparation and thoroughness is demanded of counsel. Not to mention that some people are more painstaking and meticulous than others. The work product could become fat and evolve into a “trial notebook” or even expand into a voluminous “trial book.”
The Rule-Required Pre-Trial Brief
The pre-trial brief was an offshoot of the effort to speed up the delivery of justice. Despite the discovery procedure and pre-trial device in the 1964 Rules, cases were delayed. At the end of martial law, Supreme Court Circular No. 13 on Guidelines in the Administration of Justice dated July 1, 1987 underlined the problem of delay and trial courts were instructed to maximize the use of pre-trial and discovery procedures, what was recommended were “exhaustive pre-trials … to reduce areas of conflict and simplify issues, etc. (citing Rule 20, Sec. 1) and with respect to discovery, lawyers should be encouraged to avail of Rule 24 to Rule 29, “a neglected area in our adversarial process. Its use would greatly expedite the trial of cases.” Administrative Circular No. 1 dated January 28, 1988 instructed the judge to encourage the “effective” use of discovery procedures.
It was pointed out by an American lawyer that the reason for delay was the protracted and piece-meal hearings in our courts, unlike the jury trials in his country where trials had to be continuous until termination (otherwise the sequestered jurors would become cantankerous because they could not go home).
Thus was hatched the idea of “mandatory continuous trial.” Circular No. 4 dated September 22, 1988 has a forceful beginning -
“SUBJECT: EXPEDITIOUS DISPOSITON OF CASES
The flow of cases in the trial courts from the time of filing until their final disposition has been the subject of constant public criticism. The trial period is exceedingly long. It usually takes more than two to three years to finish. The slow grind of the trial court machinery has made the legal maxim “justice delayed is justice denied” aptly descriptive of the dismal situation obtaining in that level of jurisdiction. Indeed the ultimate victims are always the ordinary litigants. The real culprit is the common practice of piecemeal trial of cases that sets cases for trial one day at a time and thereafter continued or postponed to another date until all the parties have finished their presentation of evidence.”
and started a pilot project to test the efficacy of continuous trial. Circular No. 1-89 effective February 1, 1989 designated certain courts to conduct mandatory continuous trial with the hopeful objective that the whole proceedings be terminated and ready for judgment within ninety days from the date of initial hearing. The parties were required to file pre-trial briefs. The prescribed contents were to suffer later amendments. Strangely, no pre-trial briefs were prescribed for criminal cases.
The lawyer’s trial brief was brought out into the open by judicial fiat. But while the two ran parallel, they had not exactly identical objectives. The trial brief was a “battle plan” (shades of Carl von Clauswitz and Sun Tzu!) while the pre-trial brief compelled the advocate to be candid and straightforward so that the court would not be misled, and could render justice according to law.
While we refer to developments in 1989, the following will have a familiar ring, in retrospect:
“The pre-trial calendar consists of all cases other than personal injury and death actions. The parties receive written notice to attend a calendar call. At the call a time is fixed for the conference, which often is scheduled for the same day. The attorneys are required to submit typewritten memoranda covering such of the following items as are appropriate:
‘1. A brief statement of what the plaintiff expects to prove in support of his claim.
2. A brief statement of what the defendant expects to prove as a defense thereto;
3. Similar statements as to any counterclaim or cross-claim of a defendant.
4. Any amendments required of the pleadings.
5. Any tender of issue in the pleadings that is to be abandoned.
6. Any stipulation of facts, as to liability or damages, that the attorney is willing to make, or on which he requests an admission.
7. The details of the damages claimed, or of any other relief sought, as of the date of the pre-trial conference.
8. The documents and records to be offered in evidence at the trial which will be conceded to be genuine or as to which a concession is requested.
9. The names and specialties of experts to be called as witnesses.
10. Any other pre-trial relief which the attorney will request.’
The attorneys should have discussed these matters in advance of the conference. Generally, it is a good idea to submit to your adversary in advance of the hearing the documents on the identification of which you seek agreement. Some judges even require the exchange of pre-trial memoranda two days before the conference, although the usual practice is to exchange them at the conference. Other judges require the submission of a pre-trial memorandum to the court before the conference.” (Wessel, Federal Pre-Trial and Jury Trial Procedure, Practising Law Institute, published in 1955 with the caveat that the rules have been changed radically since then, page 55, citing Calendar Rule 15(b) of the U.S. Southern District Court of New York).
With respect to the pre-trial brief responsive to the Circular and the “pre-trial memorandum,” Bellosillo cites 1962, 1955, and 1958 U.S. cases (Effective Pre-Trial Technique, 1990, pages 139-141).
The 1997 Rules deal with pre-trial in Rule 18. With a change from discretionary to mandatory, Sec. 2 on nature and purpose copied Rule 25 of the 1964 Rules. There was updating. It runs as follows:
“Nature and purpose.- The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action. (1a, R25)”
The contents of the pre-trial brief were prescribed in Sec. 6, Rule 18.
The overlapping and some discordance of topics is obvious, and the two sections could very well be merged into a harmonious one.
The matter was compounded by Circular No. 3-99 dated January 15, 1999 (was it intended to, or does it amend the Rules of Court?). Par. 2 (a) copied Sec. 6, Rule 18, but added that the parties shall state the number of hours they needed to present their evidence, to submit copies of documents to be presented, to state applicable laws and jurisprudence, and available trial dates of counsel. The parties were required to finish their evidence within three months from date of initial hearing.
Two years later there was the Interim Rules of Procedure for Intra-Corporate Controversies, effective April 1, 2001. Rule 4, Sec. 1 enumerated the contents of a pre-trial brief. Among these are a brief statement of the nature of the case, summarizing the theory of a party and separate statement of factual and legal issues. Sec. 2 stated the nature and purpose of the pre-trial conference, and required the parties to consider among other things facts of judicial notice or the subject of express or implied admissions; objections to the admissibility of testimonial, documentary and other evidence; and complete schedule of trial dates. Sec. 4 provided for the format of simultaneous trial memoranda after the ruling on admissibility of evidence. Rule 11, Sec. 2 imposed novel disciplinary sanctions on the judge for failure to observe the special summary procedures in the rules and for failure to issue a pre-trial order in the prescribed form.
Another two years later there was the rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages dated March 15, 2003. Sec. 12 provided for the contents of the pre-trial brief. There was also the Rule on Legal Separation of the same date. Sec. 9 provided for the same contents for the pre-trial brief. Then there was the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors dated May 15, 2003. Sec. 10 provided for the same contents.
Still another two years later there came the Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures effective August 16, 2004. It is so all-encompassing in scope and mandatory in tone that one can say that it has practically supplanted or supplemented Rule 18 on pre-trial and the deposition-discovery rules in Rules 23 to 29 of the 1997 Rules of Court. For the pre-trial in civil cases, Par. I, A, 2 provides for the contents of a pre-trial brief. It follows to some extent Circular No. 3-99 dated January 15, 1999 with the following changes:
It no longer requires the submission of copies of documents, but stresses that no documents shall be admitted during the trial in support of a party’s evidence-in-chief other than those identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown.
It no longer requires a statement of applicable laws and jurisprudence.
It no longer requires a statement of the available trial dates of counsel and the termination of presentation within three months, although there is a separate paragraph on this subject.
The rule on contents must be strictly complied with, the parties are bound by the representations and statements in their respective pre-trial briefs.
Although the circular has Par. B on criminal cases and mentions many topics that could be preliminarily dealt with, there is no form for a pre-trial brief in criminal cases.
Because it is the latest formulation on the matter, we reproduce it hereunder:
“2. The parties shall submit, at least three (3) days before the pre-trial, pre-trial briefs containing the following:
a. A statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution;
b. A summary of admitted facts and proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented, stating the purpose thereof. (No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in-chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown);
e. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and
f. The number and names of the witnesses, the substance of their testimonies, and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses.
A copy of the Notice of Pre-Trial Conference is hereto attached as Annex “B.”
The rule on the contents of the pre-trial brief must strictly be complied with.
The parties are bound by the representations and statements in their respective pre-trial briefs.”
The circular starts with the not unfamiliar refrain that it is intended to “abbreviate court proceedings, ensure prompt disposition of cases and decongest court dockets,” and its sincere thrust and unmistakable urgency is evidenced by the meticulous step-by-step guidance it gives to trial judges and clerks of court, which appears rather complicated and excessive.
SUGGESTED FORMAT
The following are the suggested contents of a pre-trial brief. It is an action plan of the trial judge, to get at the facts, so that it can render justice according to the truth and the law.
1. Nature of the case. Brief statement of the cause of action, denial, affirmative defense, counterclaim.
2. Issues of law. Brief citation of latest laws and jurisprudence.
3. Willingness to compromise and settle, stating the terms and conditions acceptable to the party.
4. Willingness to submit to alternative modes of dispute resolution such as arbitration or mediation.
5. Admissions of facts and genuineness and due execution of documents, whether express or implied. Possibility of filing a partial or complete stipulate of facts.
6. Identification of issues of fact remaining exclusively for trial.
7. Reference of factual issues to a commissioner.
8. Results of discovery motions and their intended use.
9. Names of witnesses and the substance of their intended testimony.
10. List of documents or object evidence and their intended purpose. These shall not be admissible in evidence unless earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown.
(Important note on “issues”: An issue is a material point, deduced from the pleadings, which is affirmed on one side and denied on the other. Rule 18, Sec. 7 on the pre-trial order states that it shall “explicitly define and limit the issues to be tried” and Rule 30, Sec. 5 limits the trial “to the issues stated in the pre-trial order.” “Pre-trial is primarily intended to insure that the parties properly raise all issues necessary to dispose of a case. The parties must disclose during pre-trial all issues they intended to raise during the trial, except those involving privileged or impeaching matters. Although a pre-trial order is not meant to catalogue each issue that the parties may take up during the trial, issues not included in the pre-trial order may be considered only if they are impliedly included in the issues raised or inferable from the issues raised by necessary implication. The basis of the rule is simple. Petitioners are bound by the delimitation of the issues during the pre-trial because they themselves agreed to the same.” (Villanueva v. Court of Appeals, 427 SCRA 439, 446 [2004]).
By Atty Cesar T. Tirol
Monday, March 21, 2011
On Presumptive Death
Like the sword of Damocles, one of the many cases hovering in the sphere of jurisdiction of the Family Court is the so-called petition for the declaration of presumptive death of a person based on Article 41 of the Family Code of the Philippines. This is usually resorted to by the present spouse for the purpose of contracting a subsequent marriage, while the previous marriage is still in existence, without fear of committing the crime of bigamy, or the subsequent marriage decreed as null and void for being bigamous.
It is a mandatory requirement which has been incorporated into the Family Code to discourage subsequent marriages where it is not proven that the missing spouse is factually or presumptively dead.# For it is doctrinally entrenched that a subsequent marriage without the judicial declaration of presumptive death of the absent spouse is void ab initio.
Like a beacon on a stormy night, jurisprudence had laid down four (4) requisites for the declaration of presumptive death of the absentee under said Article 41 of the Family Code of the Philippines.
1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code of the Philippines;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.
In the concept of a judge pronouncing sentence upon a felon, it has been judicially affirmed that it is the present spouse who is burdened to prove that the absentee has been absent and has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. This belief must be the result of proper and honest-to-goodness inquiries and efforts to ascertain the whereabouts of the absent spouse.# It is to be noted that many cases of this nature have been dismissed for the failure of the petitioner to prove “that the present spouse has a well-founded belief that the absentee is dead.”
These requirements, however, apply only when the subject marriage was solemnized under the auspices of the Family Code of the Philippines, with its enactment on August 3, 1988.# It is understood, however, that for those marriages celebrated under the influence of the Civil Code of the Philippines, no such judicial declaration of the absent spouse is authorized for the simple reason that such a presumption is already established by law. It goes without saying that if it is the Civil Code that would apply on account that the marriage was solemnized before the effectivity of the Family Code, then proof of “well-founded belief” is no longer required.
In the final analysis, like sands through the hourglass, for the purpose of contracting a subsequent civil wedding because the first spouse has been absent for seven consecutive years in a marriage officiated by the authority of the Civil Code, it is not necessary to have the former spouse judicially declared an absentee since death is presumed by operation of law to have taken place by the seventh year of absence. It is safe to conclude under the prevailing circumstances, that the subsequent or second marriage is legal and valid, since at that time, it was contracted without any legal impediment.
By Judge Globert J. Justalero
It is a mandatory requirement which has been incorporated into the Family Code to discourage subsequent marriages where it is not proven that the missing spouse is factually or presumptively dead.# For it is doctrinally entrenched that a subsequent marriage without the judicial declaration of presumptive death of the absent spouse is void ab initio.
Like a beacon on a stormy night, jurisprudence had laid down four (4) requisites for the declaration of presumptive death of the absentee under said Article 41 of the Family Code of the Philippines.
1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code of the Philippines;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.
In the concept of a judge pronouncing sentence upon a felon, it has been judicially affirmed that it is the present spouse who is burdened to prove that the absentee has been absent and has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. This belief must be the result of proper and honest-to-goodness inquiries and efforts to ascertain the whereabouts of the absent spouse.# It is to be noted that many cases of this nature have been dismissed for the failure of the petitioner to prove “that the present spouse has a well-founded belief that the absentee is dead.”
These requirements, however, apply only when the subject marriage was solemnized under the auspices of the Family Code of the Philippines, with its enactment on August 3, 1988.# It is understood, however, that for those marriages celebrated under the influence of the Civil Code of the Philippines, no such judicial declaration of the absent spouse is authorized for the simple reason that such a presumption is already established by law. It goes without saying that if it is the Civil Code that would apply on account that the marriage was solemnized before the effectivity of the Family Code, then proof of “well-founded belief” is no longer required.
In the final analysis, like sands through the hourglass, for the purpose of contracting a subsequent civil wedding because the first spouse has been absent for seven consecutive years in a marriage officiated by the authority of the Civil Code, it is not necessary to have the former spouse judicially declared an absentee since death is presumed by operation of law to have taken place by the seventh year of absence. It is safe to conclude under the prevailing circumstances, that the subsequent or second marriage is legal and valid, since at that time, it was contracted without any legal impediment.
By Judge Globert J. Justalero
Support By Ascendants
It is something of a legal issue that has confounded practitioners before the Family Court like an agonizing question: “May the paternal grandparents be required to give support to their grandchildren in the event of the father’s inability to extend such sustenance to his children?”
The law on support is governed by the Family Code of the Philippines#, which provides that parents and their legitimate children are obliged to mutually support one another, and it is worthy to note that this obligation extends down to the legitimate grandchildren and great grandchildren. The law also asserts that should the person obliged to give assistance, like the mother and the father, does not have sufficient means to satisfy all claims, the other persons enumerated in Article 199 in its order, like the grandparents, shall provide the necessary relief.
The rationale behind this obligation to give helping hand by the other persons aside from the parents is not difficult to see as it is based on ordinary human experience on relationship. As the adage of “blood is thicker than water” goes, the closer the relationship of the relatives, the stronger the tie that binds them, and this is because the obligation to give aid is imposed first upon the shoulder of the closer relatives and only in their default is the obligation moved to the next nearer relatives.#
It is by statutory and jurisprudential mandate that the liability of the ascendants, like grandparents to provide legal support to their descendants like grandchildren is beyond dispute. Although the obligation to give legal support principally pertains to the parents, but this obligations likewise passes to the grandparents not only upon default of the parents but also for the parents’ inability to provide sufficient nourishment, so to speak. As a fortiori, the grandchildren cannot demand support directly from their grandparents if they have parents who are capable and willing of supporting them.#
Lest it be misunderstood, the grandparents’ concurrent obligation to give support extends only to their descendants, as the term is commonly understood to refer to relatives by blood of lower degree, like the grandchildren. Simply stated, if no support is forthcoming from the parents, the grandchildren can ask support from their grandparents. However, unlike the grandchildren, the daughter-in-law or the mother of the grandchildren has no legal right to claim for support from her parents-in-law, since her right to receive such support stems exclusively from her husband, anchoring from their marital bond.
By Judge Globert J. Justalero
The law on support is governed by the Family Code of the Philippines#, which provides that parents and their legitimate children are obliged to mutually support one another, and it is worthy to note that this obligation extends down to the legitimate grandchildren and great grandchildren. The law also asserts that should the person obliged to give assistance, like the mother and the father, does not have sufficient means to satisfy all claims, the other persons enumerated in Article 199 in its order, like the grandparents, shall provide the necessary relief.
The rationale behind this obligation to give helping hand by the other persons aside from the parents is not difficult to see as it is based on ordinary human experience on relationship. As the adage of “blood is thicker than water” goes, the closer the relationship of the relatives, the stronger the tie that binds them, and this is because the obligation to give aid is imposed first upon the shoulder of the closer relatives and only in their default is the obligation moved to the next nearer relatives.#
It is by statutory and jurisprudential mandate that the liability of the ascendants, like grandparents to provide legal support to their descendants like grandchildren is beyond dispute. Although the obligation to give legal support principally pertains to the parents, but this obligations likewise passes to the grandparents not only upon default of the parents but also for the parents’ inability to provide sufficient nourishment, so to speak. As a fortiori, the grandchildren cannot demand support directly from their grandparents if they have parents who are capable and willing of supporting them.#
Lest it be misunderstood, the grandparents’ concurrent obligation to give support extends only to their descendants, as the term is commonly understood to refer to relatives by blood of lower degree, like the grandchildren. Simply stated, if no support is forthcoming from the parents, the grandchildren can ask support from their grandparents. However, unlike the grandchildren, the daughter-in-law or the mother of the grandchildren has no legal right to claim for support from her parents-in-law, since her right to receive such support stems exclusively from her husband, anchoring from their marital bond.
By Judge Globert J. Justalero
A Road to Incivility
“Civility is to the courtroom and adversary process what antiseptic is to a hospital and operating room. The best medical brains cannot outwit soiled linen or dirty scalpels – and the best legal skills cannot either justify or offset bad manners.” – Justice Warren E. Burger
When Republic v. Court of Appeals and Roridel Olaviano Molina# came out on February 13, 1997, Solicitors were given marching orders to appear as defensor vinculi (defender of the bond) to represent the Republic. By all accounts, it was taxing because we had already a hard time squeezing our time writing our comment or People’s brief and our out of town hearings.
One time, armed with a written opposition, I appeared before a regional trial court in Quezon City. Just like any other cases, I usually go directly to the branch clerk of court to leave my tailor-made certificate of appearance for signature before the start of a hearing. As I was having a small talk with the branch clerk of court about the impact of the Molina Doctrine, the court interpreter barged in and introduced herself to me. I have a gut-feeling that she is up into something for cutting in.
As you might expect, once I settled in the court room and as litigants were coming in trickles, the mannish court interpreter approached me again and asked me if I am raring to go with my opposition. “Of course”, what am I here for?” was my tart reply. She then told me that somebody just wants to talk to me.
Soon enough, that “somebody” came in a flash. The court interpreter lost no time and introduced him to me. He was in his late 40’s but he looks so 70’s - he was wearing a vintage double knit plaid suit and was sporting sideburns below his shaggy hair. He extended his hand to shake as I was stiffly seated at the front row. I maintained my stiff and stoic bearing to ward off any sinister move all the time. And this simple trick always work but maybe not this time because this lawyer was so pushy that he bluntly told me not to pursue my opposition and he will give me half of his appearance fees. A half-price lawyer…Huh? This is not Vegas, for crying out loud! I laughed down his silly proposal; and turn my back on him. He was mumbling something inaudible as he was leaving the court room which I did not mind at all. And I hoped that whoever might be listening simply was not interested.
When the case was called out, I pursued my opposition with no let-up; and argued for it as I gave the lawyer a black look.
As the gavel bangs for the next case, the lawyer tapped my back again and whispered, “KJ ka talaga, Solicitor”, and left the court room. Darn it! “Think him as a serpent’s egg, which hatch’d, would, as his kind, grow mischievous”.#
When I got back to the office, I shared my experience to my Assistant Solicitor General in between our lunch at the 10th Floor. He was laughing. It was nostalgic, he frankly said to me. Kidding aside, he gave me a piece of advice – “watch out, more storms are coming”. “Yes, no sweat Judge”, I assuredly replied, and chowed down.
Bench Notes: One day John Marshall and his fellow Supreme Court justices, having heard disturbing rumors of their own excessive drinking, jointly agreed to abstain on their weekly consultation day - unless it was raining. The following consultation day, Marshall (the Chief Justice) instructed Joseph Story to go to the window and check for signs of inclement weather.
Story soon reported back: "Mr. Chief Justice, I have very carefully examined this case," he declared, "and I have to give it as my opinion that there is not the slightest sign of rain."
"Justice Story," Marshall replied, "I think that is the shallowest and most illogical opinion I have ever heard you deliver. You forget that our jurisdiction is as broad as the Republic, and by the laws of nature it must be raining some place in our jurisdiction. Waiter, bring on the rum!"
(Source: www.Anecdotage.com)
By Judge Enrique Z. Trespeces
When Republic v. Court of Appeals and Roridel Olaviano Molina# came out on February 13, 1997, Solicitors were given marching orders to appear as defensor vinculi (defender of the bond) to represent the Republic. By all accounts, it was taxing because we had already a hard time squeezing our time writing our comment or People’s brief and our out of town hearings.
One time, armed with a written opposition, I appeared before a regional trial court in Quezon City. Just like any other cases, I usually go directly to the branch clerk of court to leave my tailor-made certificate of appearance for signature before the start of a hearing. As I was having a small talk with the branch clerk of court about the impact of the Molina Doctrine, the court interpreter barged in and introduced herself to me. I have a gut-feeling that she is up into something for cutting in.
As you might expect, once I settled in the court room and as litigants were coming in trickles, the mannish court interpreter approached me again and asked me if I am raring to go with my opposition. “Of course”, what am I here for?” was my tart reply. She then told me that somebody just wants to talk to me.
Soon enough, that “somebody” came in a flash. The court interpreter lost no time and introduced him to me. He was in his late 40’s but he looks so 70’s - he was wearing a vintage double knit plaid suit and was sporting sideburns below his shaggy hair. He extended his hand to shake as I was stiffly seated at the front row. I maintained my stiff and stoic bearing to ward off any sinister move all the time. And this simple trick always work but maybe not this time because this lawyer was so pushy that he bluntly told me not to pursue my opposition and he will give me half of his appearance fees. A half-price lawyer…Huh? This is not Vegas, for crying out loud! I laughed down his silly proposal; and turn my back on him. He was mumbling something inaudible as he was leaving the court room which I did not mind at all. And I hoped that whoever might be listening simply was not interested.
When the case was called out, I pursued my opposition with no let-up; and argued for it as I gave the lawyer a black look.
As the gavel bangs for the next case, the lawyer tapped my back again and whispered, “KJ ka talaga, Solicitor”, and left the court room. Darn it! “Think him as a serpent’s egg, which hatch’d, would, as his kind, grow mischievous”.#
When I got back to the office, I shared my experience to my Assistant Solicitor General in between our lunch at the 10th Floor. He was laughing. It was nostalgic, he frankly said to me. Kidding aside, he gave me a piece of advice – “watch out, more storms are coming”. “Yes, no sweat Judge”, I assuredly replied, and chowed down.
Bench Notes: One day John Marshall and his fellow Supreme Court justices, having heard disturbing rumors of their own excessive drinking, jointly agreed to abstain on their weekly consultation day - unless it was raining. The following consultation day, Marshall (the Chief Justice) instructed Joseph Story to go to the window and check for signs of inclement weather.
Story soon reported back: "Mr. Chief Justice, I have very carefully examined this case," he declared, "and I have to give it as my opinion that there is not the slightest sign of rain."
"Justice Story," Marshall replied, "I think that is the shallowest and most illogical opinion I have ever heard you deliver. You forget that our jurisdiction is as broad as the Republic, and by the laws of nature it must be raining some place in our jurisdiction. Waiter, bring on the rum!"
(Source: www.Anecdotage.com)
By Judge Enrique Z. Trespeces
Sexual Discrimination Against Women in the Workplace
With women empowerment does not necessarily comes protection against sexual discrimination in the playing field of employment. Sexual discrimination against women in the workplace has been making news headlines for years, but the history’'s largest civil rights lawsuit has just been certified that has the potential to change the job environment for all women. While discrimination can target both men and women, the majority of cases involve sexual discrimination against women. It has been a challenge over the years to lessen the pay gap between men and women, to equalize promotions and employment opportunities, and to put a fair playing field in the workplace regardless of gender. Sexual discrimination against women has been fought through the courts and history-altering decisions removing sex-based restrictions on occupations were achieved. Many people continuing to fight against sexual discrimination against women hope that Supreme Court Decisions will bring even more necessary changes to the workplace and force the public as a whole to scrutinize the way our employment system is set up.
LEGISLATION OF THE MAGNA CARTA FOR WOMEN
Congress has recently enacted Republic Act No. 9710 known as “The Magna Carta of Women” (MCW). The new law affirms that women are holders of and claimants to human rights. It clearly places on government shoulders the duty to ensure that the human rights of women are upheld and promoted. The three branches of government at all levels and government-owned and -controlled corporations assume these obligations under the MCW. Womens rights advocates keep abreast and take advantage of positive advances in legal-standard setting in the international arena to support their advocacy and other strategies.
Under the UN Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), governments that have ratified the treaty like the Philippines have the obligation to eliminate discrimination against women and to take steps so that women, regardless of their status, condition or situation, have the opportunity to exercise and enjoy their rights. Consistent with the Cedaw, the MCW requires that government consider the specific risks and particular contexts, especially of women in marginalized sectors or those in situations of conflict, when it adopts women-specific or general programs and measures. The MCW in many respects is a model for adopting the Cedaw norms on equality and non-discrimination in a country’s legislation.
LATEST SUPREME COURT DECISION ON THE RECENT ISSUE
Recent jurisprudence upholding the rights of women against sexual discrimination in the workplace have been promulgated by the Supreme Court. A recent Decision is in the case of PATRICIA HALAGUEÑA and other flight attendants of PHILIPPINE AIRLINES vs.
PHILIPPINE AIRLINES INCORPORATED (G.R. No. 172013, October 2, 2009).
Petitioners were employed as female flight attendants of respondent Philippine Airlines (PAL) on different dates prior to November 22, 1996. They are members of the Flight Attendants and Stewards Association of the Philippines (FASAP), a labor organization certified as the sole and exclusive certified as the sole and exclusive bargaining representative of the flight attendants, flight stewards and pursers of respondent. On July 11, 2001, respondent and FASAP entered into a Collective Bargaining Agreement incorporating the terms and conditions of their agreement for the years 2000 to 2005, hereinafter referred to as PAL-FASAP CBA. Section 144, Part A of the PAL-FASAP CBA, provides that for the Cabin Attendants hired before 22 November 1996, compulsory retirement shall be fifty-five (55) for females and sixty (60) for males.
Petitioners and several female cabin crews manifested that the aforementioned CBA provision on compulsory retirement is discriminatory, and demanded for an equal treatment with their male counterparts. The thrust of the Petition is that Sec. 144 of the subject CBA is allegedly discriminatory as it discriminates against female flight attendants, in violation of the Constitution, the Labor Code, and the CEDAW. The case seeks a declaration of the nullity of the questioned provision of the CBA.
However, the Supreme Court declared that the question as to whether said Section 114, Part A of the PAL-FASAP CBA is discriminatory or not is a question of fact. This would require the presentation and reception of evidence by the parties in order for the trial court to ascertain the facts of the case and whether said provision violates the Constitution, statutes and treaties. Since a full-blown trial is necessary, the case was remanded to the RTC for the proper determination of the merits of the petition for declaratory relief is just and proper.
In the meantime, the issue of discrimination was left hanging. The Supreme Court is yet to make a ruling on this matter, should the decision of the RTC be raised up to the Highest Tribunal of the Land to form part of jurisprudence.
AN OLD YET LANDMARK JURISPRUDENCE ON THE ISSUE
A landmark case on discrimination against women in the work field is that of PT & T vs. NLRC, G.R. No. 118978 May 23, 1997. Seeking relief through the extraordinary writ of certiorari, Philippine Telegraph and Telephone Company (hereafter, PT & T) invokes the alleged concealment of civil status and defalcation of company funds as grounds to terminate the services of an employee. That employee, Grace de Guzman, contrarily argues that what really motivated PT & T to terminate her services was her having contracted marriage during her employment, which is prohibited by petitioner in its company policies. She thus claims that she was discriminated against in gross violation of law, such a proscription by an employer being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a "Supernumerary Project Worker," for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on maternity leave. Under the Reliever Agreement which she signed with petitioner company, her employment was to be immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July 1, 1991, and from July 19, 1991 to August 8, 1991, private respondent's services as reliever were again engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went on leave during both periods. After August 8, 1991, and pursuant to their Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary employee, the probationary period to cover 150 days. In the job application form that was furnished her to be filled up for the purpose, she indicated in the portion for civil status therein that she was single although she had contracted marriage a few months earlier, that is, on May 26, 1991.
It now appears that private respondent had made the same representation in the two successive reliever agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about the company's policy of not accepting married women for employment.
In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&T's policy regarding married women at the time, and that all along she had not deliberately hidden her true civil status. Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed from the company effective January 29, 1992, 6 which she readily contested by initiating a complaint for illegal dismissal, coupled with a claim for non-payment of cost of living allowances (COLA), before the Regional Arbitration Branch of the National Labor Relations Commission in Baguio City.
The Supreme Court had occasion to discuss this issue extensively with the following pronouncements:
“Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but, through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of labor, especially on the matter of equal employment opportunities and standards. In the Philippine setting, women have traditionally been considered as falling within the vulnerable groups or types of workers who must be safeguarded with preventive and remedial social legislation against discriminatory and exploitative practices in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article II on the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary thereto, Section 3 of Article XIII (the progenitor whereof dates back to both the 1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to promote full employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of Article XIII 10 mandates that the State shall protect working women through provisions for opportunities that would enable them to reach their full potential.
Corrective labor and social laws on gender inequality have emerged with more frequency in the years since the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our country's commitment as a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Principal among these laws are Republic Act No. 6727 which explicitly prohibits discrimination against women with respect to terms and conditions of employment, promotion, and training opportunities; Republic Act No. 6955 which bans the "mail-order-bride" practice for a fee and the export of female labor to countries that cannot guarantee protection to the rights of women workers; Republic Act No. 7192 also known as the "Women in Development and Nation Building Act," which affords women equal opportunities with men to act and to enter into contracts, and for appointment, admission, training, graduation, and commissioning in all military or similar schools of the Armed Forces of the Philippines and the Philippine National Police; Republic Act No. 7322 increasing the maternity benefits granted to women in the private sector; Republic Act No. 7877 which outlaws and punishes sexual harassment in the workplace and in the education and training environment; and Republic Act No. 8042, or the "Migrant Workers and Overseas Filipinos Act of 1995," which prescribes as a matter of policy, inter alia, the deployment of migrant workers, with emphasis on women, only in countries where their rights are secure. Likewise, it would not be amiss to point out that in the Family Code, women's rights in the field of civil law have been greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138 thereof. Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of women to be provided with facilities and standards which the Secretary of Labor may establish to ensure their health and safety. For purposes of labor and social legislation, a woman working in a nightclub, cocktail lounge, massage clinic, bar or other similar establishments shall be considered as an employee under Article 138. Article 135, on the other hand, recognizes a woman's right against discrimination with respect to terms and conditions of employment on account simply of sex. Finally, and this brings us to the issue at hand, Article 136 explicitly prohibits discrimination merely by reason of the marriage of a female employee.
x x x x x x x x x
In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company were dissolved principally because of the company's policy that married women are not qualified for employment in PT & T, and not merely because of her supposed acts of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware that the company is not accepting married women employee (sic), as it was verbally instructed to you." 21 Again, in the termination notice sent to her by the same branch supervisor, private respondent was made to understand that her severance from the service was not only by reason of her concealment of her married status but, over and on top of that, was her violation of the company's policy against marriage ("and even told you that married women employees are not applicable [sic] or accepted in our company.") Parenthetically, this seems to be the curious reason why it was made to appear in the initiatory pleadings that petitioner was represented in this case only by its said supervisor and not by its highest ranking officers who would otherwise be solidarily liable with the corporation.
Verily, private respondent's act of concealing the true nature of her status from PT & T could not be properly characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to retain a permanent job in a stable company. In other words, she was practically forced by that very same illegal company policy into misrepresenting her civil status for fear of being disqualified from work. While loss of confidence is a just cause for termination of employment, it should not be simulated. 24 It must rest on an actual breach of duty committed by the employee and not on the employer's caprices. Furthermore, it should never be used as a subterfuge for causes which are improper, illegal, or unjustified.
x x x x x x x x x
Petitioner would have the Court believe that although private respondent defied its policy against its female employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits as unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial matter to which it supposedly has no objection. In other words, PT & T says it gives its blessings to its female employees contracting marriage, despite the maternity leaves and other benefits it would consequently respond for and which obviously it would have wanted to avoid. If that employee confesses such fact of marriage, there will be no sanction; but if such employee conceals the same instead of proceeding to the confessional, she will be dismissed. This line of reasoning does not impress us as reflecting its true management policy or that we are being regaled with responsible advocacy.
x x x x x x x x x
Finally, petitioner's collateral insistence on the admission of private respondent that she supposedly misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat insincere and self-serving. Concededly, private respondent admitted in the course of the proceedings that she failed to remit some of her collections, but that is an altogether different story. The fact is that she was dismissed solely because of her concealment of her marital status, and not on the basis of that supposed defalcation of company funds. That the labor arbiter would thus consider petitioner's submissions on this supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a perceptive conclusion born of experience in labor cases. For, there was no showing that private respondent deliberately misappropriated the amount or whether her failure to remit the same was through negligence and, if so, whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent execute a promissory note to refund the same, which she did, and the matter was deemed settled as a peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was served her walking papers on January 29, 1992, she was about to complete the probationary period of 150 days as she was contracted as a probationary employee on September 2, 1991. That her dismissal would be effected just when her probationary period was winding down clearly raises the plausible conclusion that it was done in order to prevent her from earning security of tenure. 27 On the other hand, her earlier stints with the company as reliever were undoubtedly those of a regular employee, even if the same were for fixed periods, as she performed activities which were essential or necessary in the usual trade and business of PT & T. The primary standard of determining regular employment is the reasonable connection between the activity performed by the employee in relation to the business or trade of the employer.
As an employee who had therefore gained regular status, and as she had been dismissed without just cause, she is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of allowances and other benefits or their monetary equivalent. However, as she had undeniably committed an act of dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition of petitioner, the three-month suspension imposed by respondent NLRC must be upheld to obviate the impression or inference that such act should be condoned. It would be unfair to the employer if she were to return to its fold without any sanction whatsoever for her act which was not totally justified. Thus, her entitlement to back wages, which shall be computed from the time her compensation was withheld up to the time of her actual reinstatement, shall be reduced by deducting therefrom the amount corresponding to her three months suspension.
The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner PT & T. The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage. — It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage.
x x x x x x x x x
Further, it is not relevant that the rule is not directed against all women but just against married women. And, where the employer discriminates against married women, but not against married men, the variable is sex and the discrimination is unlawful. Upon the other hand, a requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the particular requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in one case, a no-marriage rule applicable to both male and female flight attendants, was regarded as unlawful since the restriction was not related to the job performance of the flight attendants.
Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable right. Hence, while it is true that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient, the same should not be contrary to law, morals, good customs, public order, or public policy. Carried to its logical consequences, it may even be said that petitioner's policy against legitimate marital bonds would encourage illicit or common-law relations and subvert the sacrament of marriage.
x x x the danger of just such a policy against marriage followed by petitioner PT & T is that it strikes at the very essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation. That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but imperatively required.”
CONCLUSION
Women may have greater access to legal remedy because of the prohibition and definition of discrimination that the laws like MCW provide. Human rights defenders may find additional legal bases in the law to demand accountability and end impunity for violations or denial of rights that many women continue to experience. Achieving the goals of the MCW is a monumental tasks amidst a male-oriented culture in the Philippines. The Courts and legal practitiones should remain vigilant that the magna carta and treaties for protection of women against sexual discrimination in the workplace is implemented in accordance with the visions and spirit of the laws.
By Atty. Janette Mae J. Dillomes
LEGISLATION OF THE MAGNA CARTA FOR WOMEN
Congress has recently enacted Republic Act No. 9710 known as “The Magna Carta of Women” (MCW). The new law affirms that women are holders of and claimants to human rights. It clearly places on government shoulders the duty to ensure that the human rights of women are upheld and promoted. The three branches of government at all levels and government-owned and -controlled corporations assume these obligations under the MCW. Womens rights advocates keep abreast and take advantage of positive advances in legal-standard setting in the international arena to support their advocacy and other strategies.
Under the UN Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), governments that have ratified the treaty like the Philippines have the obligation to eliminate discrimination against women and to take steps so that women, regardless of their status, condition or situation, have the opportunity to exercise and enjoy their rights. Consistent with the Cedaw, the MCW requires that government consider the specific risks and particular contexts, especially of women in marginalized sectors or those in situations of conflict, when it adopts women-specific or general programs and measures. The MCW in many respects is a model for adopting the Cedaw norms on equality and non-discrimination in a country’s legislation.
LATEST SUPREME COURT DECISION ON THE RECENT ISSUE
Recent jurisprudence upholding the rights of women against sexual discrimination in the workplace have been promulgated by the Supreme Court. A recent Decision is in the case of PATRICIA HALAGUEÑA and other flight attendants of PHILIPPINE AIRLINES vs.
PHILIPPINE AIRLINES INCORPORATED (G.R. No. 172013, October 2, 2009).
Petitioners were employed as female flight attendants of respondent Philippine Airlines (PAL) on different dates prior to November 22, 1996. They are members of the Flight Attendants and Stewards Association of the Philippines (FASAP), a labor organization certified as the sole and exclusive certified as the sole and exclusive bargaining representative of the flight attendants, flight stewards and pursers of respondent. On July 11, 2001, respondent and FASAP entered into a Collective Bargaining Agreement incorporating the terms and conditions of their agreement for the years 2000 to 2005, hereinafter referred to as PAL-FASAP CBA. Section 144, Part A of the PAL-FASAP CBA, provides that for the Cabin Attendants hired before 22 November 1996, compulsory retirement shall be fifty-five (55) for females and sixty (60) for males.
Petitioners and several female cabin crews manifested that the aforementioned CBA provision on compulsory retirement is discriminatory, and demanded for an equal treatment with their male counterparts. The thrust of the Petition is that Sec. 144 of the subject CBA is allegedly discriminatory as it discriminates against female flight attendants, in violation of the Constitution, the Labor Code, and the CEDAW. The case seeks a declaration of the nullity of the questioned provision of the CBA.
However, the Supreme Court declared that the question as to whether said Section 114, Part A of the PAL-FASAP CBA is discriminatory or not is a question of fact. This would require the presentation and reception of evidence by the parties in order for the trial court to ascertain the facts of the case and whether said provision violates the Constitution, statutes and treaties. Since a full-blown trial is necessary, the case was remanded to the RTC for the proper determination of the merits of the petition for declaratory relief is just and proper.
In the meantime, the issue of discrimination was left hanging. The Supreme Court is yet to make a ruling on this matter, should the decision of the RTC be raised up to the Highest Tribunal of the Land to form part of jurisprudence.
AN OLD YET LANDMARK JURISPRUDENCE ON THE ISSUE
A landmark case on discrimination against women in the work field is that of PT & T vs. NLRC, G.R. No. 118978 May 23, 1997. Seeking relief through the extraordinary writ of certiorari, Philippine Telegraph and Telephone Company (hereafter, PT & T) invokes the alleged concealment of civil status and defalcation of company funds as grounds to terminate the services of an employee. That employee, Grace de Guzman, contrarily argues that what really motivated PT & T to terminate her services was her having contracted marriage during her employment, which is prohibited by petitioner in its company policies. She thus claims that she was discriminated against in gross violation of law, such a proscription by an employer being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a "Supernumerary Project Worker," for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on maternity leave. Under the Reliever Agreement which she signed with petitioner company, her employment was to be immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July 1, 1991, and from July 19, 1991 to August 8, 1991, private respondent's services as reliever were again engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went on leave during both periods. After August 8, 1991, and pursuant to their Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary employee, the probationary period to cover 150 days. In the job application form that was furnished her to be filled up for the purpose, she indicated in the portion for civil status therein that she was single although she had contracted marriage a few months earlier, that is, on May 26, 1991.
It now appears that private respondent had made the same representation in the two successive reliever agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about the company's policy of not accepting married women for employment.
In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&T's policy regarding married women at the time, and that all along she had not deliberately hidden her true civil status. Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed from the company effective January 29, 1992, 6 which she readily contested by initiating a complaint for illegal dismissal, coupled with a claim for non-payment of cost of living allowances (COLA), before the Regional Arbitration Branch of the National Labor Relations Commission in Baguio City.
The Supreme Court had occasion to discuss this issue extensively with the following pronouncements:
“Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but, through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of labor, especially on the matter of equal employment opportunities and standards. In the Philippine setting, women have traditionally been considered as falling within the vulnerable groups or types of workers who must be safeguarded with preventive and remedial social legislation against discriminatory and exploitative practices in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article II on the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary thereto, Section 3 of Article XIII (the progenitor whereof dates back to both the 1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to promote full employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of Article XIII 10 mandates that the State shall protect working women through provisions for opportunities that would enable them to reach their full potential.
Corrective labor and social laws on gender inequality have emerged with more frequency in the years since the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our country's commitment as a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Principal among these laws are Republic Act No. 6727 which explicitly prohibits discrimination against women with respect to terms and conditions of employment, promotion, and training opportunities; Republic Act No. 6955 which bans the "mail-order-bride" practice for a fee and the export of female labor to countries that cannot guarantee protection to the rights of women workers; Republic Act No. 7192 also known as the "Women in Development and Nation Building Act," which affords women equal opportunities with men to act and to enter into contracts, and for appointment, admission, training, graduation, and commissioning in all military or similar schools of the Armed Forces of the Philippines and the Philippine National Police; Republic Act No. 7322 increasing the maternity benefits granted to women in the private sector; Republic Act No. 7877 which outlaws and punishes sexual harassment in the workplace and in the education and training environment; and Republic Act No. 8042, or the "Migrant Workers and Overseas Filipinos Act of 1995," which prescribes as a matter of policy, inter alia, the deployment of migrant workers, with emphasis on women, only in countries where their rights are secure. Likewise, it would not be amiss to point out that in the Family Code, women's rights in the field of civil law have been greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138 thereof. Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of women to be provided with facilities and standards which the Secretary of Labor may establish to ensure their health and safety. For purposes of labor and social legislation, a woman working in a nightclub, cocktail lounge, massage clinic, bar or other similar establishments shall be considered as an employee under Article 138. Article 135, on the other hand, recognizes a woman's right against discrimination with respect to terms and conditions of employment on account simply of sex. Finally, and this brings us to the issue at hand, Article 136 explicitly prohibits discrimination merely by reason of the marriage of a female employee.
x x x x x x x x x
In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company were dissolved principally because of the company's policy that married women are not qualified for employment in PT & T, and not merely because of her supposed acts of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware that the company is not accepting married women employee (sic), as it was verbally instructed to you." 21 Again, in the termination notice sent to her by the same branch supervisor, private respondent was made to understand that her severance from the service was not only by reason of her concealment of her married status but, over and on top of that, was her violation of the company's policy against marriage ("and even told you that married women employees are not applicable [sic] or accepted in our company.") Parenthetically, this seems to be the curious reason why it was made to appear in the initiatory pleadings that petitioner was represented in this case only by its said supervisor and not by its highest ranking officers who would otherwise be solidarily liable with the corporation.
Verily, private respondent's act of concealing the true nature of her status from PT & T could not be properly characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to retain a permanent job in a stable company. In other words, she was practically forced by that very same illegal company policy into misrepresenting her civil status for fear of being disqualified from work. While loss of confidence is a just cause for termination of employment, it should not be simulated. 24 It must rest on an actual breach of duty committed by the employee and not on the employer's caprices. Furthermore, it should never be used as a subterfuge for causes which are improper, illegal, or unjustified.
x x x x x x x x x
Petitioner would have the Court believe that although private respondent defied its policy against its female employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits as unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial matter to which it supposedly has no objection. In other words, PT & T says it gives its blessings to its female employees contracting marriage, despite the maternity leaves and other benefits it would consequently respond for and which obviously it would have wanted to avoid. If that employee confesses such fact of marriage, there will be no sanction; but if such employee conceals the same instead of proceeding to the confessional, she will be dismissed. This line of reasoning does not impress us as reflecting its true management policy or that we are being regaled with responsible advocacy.
x x x x x x x x x
Finally, petitioner's collateral insistence on the admission of private respondent that she supposedly misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat insincere and self-serving. Concededly, private respondent admitted in the course of the proceedings that she failed to remit some of her collections, but that is an altogether different story. The fact is that she was dismissed solely because of her concealment of her marital status, and not on the basis of that supposed defalcation of company funds. That the labor arbiter would thus consider petitioner's submissions on this supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a perceptive conclusion born of experience in labor cases. For, there was no showing that private respondent deliberately misappropriated the amount or whether her failure to remit the same was through negligence and, if so, whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent execute a promissory note to refund the same, which she did, and the matter was deemed settled as a peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was served her walking papers on January 29, 1992, she was about to complete the probationary period of 150 days as she was contracted as a probationary employee on September 2, 1991. That her dismissal would be effected just when her probationary period was winding down clearly raises the plausible conclusion that it was done in order to prevent her from earning security of tenure. 27 On the other hand, her earlier stints with the company as reliever were undoubtedly those of a regular employee, even if the same were for fixed periods, as she performed activities which were essential or necessary in the usual trade and business of PT & T. The primary standard of determining regular employment is the reasonable connection between the activity performed by the employee in relation to the business or trade of the employer.
As an employee who had therefore gained regular status, and as she had been dismissed without just cause, she is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages, inclusive of allowances and other benefits or their monetary equivalent. However, as she had undeniably committed an act of dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition of petitioner, the three-month suspension imposed by respondent NLRC must be upheld to obviate the impression or inference that such act should be condoned. It would be unfair to the employer if she were to return to its fold without any sanction whatsoever for her act which was not totally justified. Thus, her entitlement to back wages, which shall be computed from the time her compensation was withheld up to the time of her actual reinstatement, shall be reduced by deducting therefrom the amount corresponding to her three months suspension.
The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner PT & T. The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage. — It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage.
x x x x x x x x x
Further, it is not relevant that the rule is not directed against all women but just against married women. And, where the employer discriminates against married women, but not against married men, the variable is sex and the discrimination is unlawful. Upon the other hand, a requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the particular requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in one case, a no-marriage rule applicable to both male and female flight attendants, was regarded as unlawful since the restriction was not related to the job performance of the flight attendants.
Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable right. Hence, while it is true that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient, the same should not be contrary to law, morals, good customs, public order, or public policy. Carried to its logical consequences, it may even be said that petitioner's policy against legitimate marital bonds would encourage illicit or common-law relations and subvert the sacrament of marriage.
x x x the danger of just such a policy against marriage followed by petitioner PT & T is that it strikes at the very essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation. That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but imperatively required.”
CONCLUSION
Women may have greater access to legal remedy because of the prohibition and definition of discrimination that the laws like MCW provide. Human rights defenders may find additional legal bases in the law to demand accountability and end impunity for violations or denial of rights that many women continue to experience. Achieving the goals of the MCW is a monumental tasks amidst a male-oriented culture in the Philippines. The Courts and legal practitiones should remain vigilant that the magna carta and treaties for protection of women against sexual discrimination in the workplace is implemented in accordance with the visions and spirit of the laws.
By Atty. Janette Mae J. Dillomes
Competent Evidence of Identity, Cedulas,
A notarial document is by law entitled to full faith and credit upon its face and, for this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties, lest, the confidence of the public in the integrity of the document will be undermined.
A.M. No. 02-8-13-SC or the 2004 Rules on Notarial Practice (the “Rules”) took effect on August 1, 2004. It was enacted (a) to promote, serve, and protect public interest; (b) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public.
Among other matters, the Rules require parties to instruments to present competent evidence of their identity to the notary public.
On February 19, 2008, the Supreme Court amended Rule II Sec. 12 (a) of the Rules and enumerated the acceptable competent evidence of identity:
“(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulation Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification; x x x”
While the Rules require the presentation of competent evidence of identity, it does not mention community tax certificates or cedulas or residence certificates which, prior to the effectivity of the Rules, were the only documents that parties to instruments were required to present to notaries public.
Are parties to instruments required to present competent evidence of their identity to the notary in all instances?
In Cable Star Inc. v. Cable BOSS, the Supreme Court denied petitioner’s motion for extension to file petition for review “for submitting an affidavit of service of the motion that fails to comply with the 2004 Rules on Notarial Practice re: competent evidence of affiant’s identity.”
In footnote 16 of Sigma v. Inter-Alia., the Court explained that it denied the petitioner’s motion for extension of time to file petition for review, likewise for submitting an affidavit of service that does not comply with the requirement on competent evidence of identity.
And in de la Cruz v. Dimaano, the Court stated without qualification that “Rule II, Sec. 12 of the 2004 Rules on Notarial Practice now requires a party to the instrument to present competent evidence of identity”.
The foregoing pronouncements of the Court show that non-compliance with the Rules affect the notarial act itself, i.e. the document notarized is invalidated or will not be considered a public document.
These also imply that parties to instruments are required to present competent evidence of their identity every time they desire to avail of the services of notaries public. However, it is submitted that this should not be the case, since the notary is required to record in his notarial register the competent evidence of identity only if the signatory is not personally known to him. This implies that no competent evidence of identity is required if the signatory is personally known to the notary. This view is consistent with an article in the Supreme Court’s website which states that “under the Rules, Notaries Public are prohibited from notarizing documents or instruments of signatories who are not personally known to them or who otherwise fail to present competent evidence of their respective identities”.
Are parties to instruments no longer required to present their community tax certificates to the notary?
In Lee v. Atty. Tambago, the Supreme Court said:
“A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.”
Again, the Supreme Court emphasized that non-compliance with the Notarial Law invalidates the document supposedly notarized.
While in Williams v. Icao, the Supreme Court said:
“x x x The document does not bear the residence certificate number of Lucia Briones, one of the signatories. In notarizing it without recording Lucia’s residence certificate, respondent violated the Notarial Law then effective which required the notary public to certify that the party to the instrument which was acknowledged before him had presented the proper residence certificate (or exemption from the residence certificate) and to enter its number, place and date of issue as part of the certification. This formality is mandatory and cannot be neglected, failure to comply with which results in the revocation of a notary’s commission.”
But in footnote 19 of Williams v. Icao, the Court also explained that under Section 13 of the Rules, a residence certificate is no longer considered a competent evidence of identity. It therefore appears that parties to instruments are no longer required to present their cedulas to notaries public.
And the Court, in Baylon v. Almo, categorically stated that the respondent:
“…should not have relied on the Community Tax Certificate presented by the said impostor in view of the ease with which community tax certificates are obtained these days. As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have their documents notarized.”
While the Rules do not mention cedulas – in Baylon v. Almo, the Supreme Court even stated that it did not include cedulas in the list of competent evidence of identity, which seems to indicate the Court’s preference to do away with it altogether – it is submitted that these are still necessary for the proper execution of the notarial act. This is because their presentation is prescribed by various laws, such as:
1. Section 6 of Commonwealth Act No. 465 or the Residence Tax Act which states that:
“When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx”;
2. Section 249 of the Revised Administrative Act, which the Supreme Court quoted in its Decision in Williams v. Icao reproduced above;
3. Section 251 of the Revised Administrative Act:
“Requirement as to notation of payment of [cedula] residence tax. – Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.”
4. and Section 163 of the Local Government Code:
“(a) When an individual subject to the community tax acknowledges any document before a notary public, … it shall be the duty of any person, officer, corporation with whom such transaction is made… to require such individual to exhibit the community tax certificate.”
Are the Rules consistent with the laws requiring the presentation of the cedula to the notary public?
It appears that the laws requiring the presentation of the cedula have not been repealed by subsequent legislative enactments. And so these laws remain valid until the present, notwithstanding the Rules’ silence insofar as cedulas are concerned.
To be valid, the Rules must conform to and be consistent with the provisions of the enabling statute; as such, it cannot amend the law either by abridging or expanding its scope. Agencies cannot, in the guise of rule-making, legislate or amend laws or worse, render them nugatory.
But is there really a conflict between the Rules and the laws requiring the presentation of the cedula? It is submitted that there is none. The requirement for the presentation of competent evidence of identity does not abridge or expand the scope of the laws affecting notarial practice since its purpose is to protect the integrity of the notarial act. Secondly, the Rules’ silence on the matter of cedulas should not be taken as proof that these are now unnecessary.
Clearly, the laws affecting notarial practice and the Rules can be applied simultaneously, and thus harmonized. In short, the presentation of a competent evidence of identity, if required, will not bar the presentation of the cedula, and vice-versa.
Hence it is only when the party or parties is/are not personally known to the notary that they must present competent evidence of their identity to him; or in the alternative, the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. On the other hand, they must present their community tax certificates to the notary, whether or not they are personally known to him.
But to be sure, it is suggested that the notary require the presentation of competent evidence of the identity of all parties to instruments, whether or not they are personally known to him, as well as their community tax certificates. After all, it is better to be safe than to be sorry.
By Atty. Jose Mari Benjamin F.U. Tirol
A.M. No. 02-8-13-SC or the 2004 Rules on Notarial Practice (the “Rules”) took effect on August 1, 2004. It was enacted (a) to promote, serve, and protect public interest; (b) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public.
Among other matters, the Rules require parties to instruments to present competent evidence of their identity to the notary public.
On February 19, 2008, the Supreme Court amended Rule II Sec. 12 (a) of the Rules and enumerated the acceptable competent evidence of identity:
“(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulation Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification; x x x”
While the Rules require the presentation of competent evidence of identity, it does not mention community tax certificates or cedulas or residence certificates which, prior to the effectivity of the Rules, were the only documents that parties to instruments were required to present to notaries public.
Are parties to instruments required to present competent evidence of their identity to the notary in all instances?
In Cable Star Inc. v. Cable BOSS, the Supreme Court denied petitioner’s motion for extension to file petition for review “for submitting an affidavit of service of the motion that fails to comply with the 2004 Rules on Notarial Practice re: competent evidence of affiant’s identity.”
In footnote 16 of Sigma v. Inter-Alia., the Court explained that it denied the petitioner’s motion for extension of time to file petition for review, likewise for submitting an affidavit of service that does not comply with the requirement on competent evidence of identity.
And in de la Cruz v. Dimaano, the Court stated without qualification that “Rule II, Sec. 12 of the 2004 Rules on Notarial Practice now requires a party to the instrument to present competent evidence of identity”.
The foregoing pronouncements of the Court show that non-compliance with the Rules affect the notarial act itself, i.e. the document notarized is invalidated or will not be considered a public document.
These also imply that parties to instruments are required to present competent evidence of their identity every time they desire to avail of the services of notaries public. However, it is submitted that this should not be the case, since the notary is required to record in his notarial register the competent evidence of identity only if the signatory is not personally known to him. This implies that no competent evidence of identity is required if the signatory is personally known to the notary. This view is consistent with an article in the Supreme Court’s website which states that “under the Rules, Notaries Public are prohibited from notarizing documents or instruments of signatories who are not personally known to them or who otherwise fail to present competent evidence of their respective identities”.
Are parties to instruments no longer required to present their community tax certificates to the notary?
In Lee v. Atty. Tambago, the Supreme Court said:
“A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.”
Again, the Supreme Court emphasized that non-compliance with the Notarial Law invalidates the document supposedly notarized.
While in Williams v. Icao, the Supreme Court said:
“x x x The document does not bear the residence certificate number of Lucia Briones, one of the signatories. In notarizing it without recording Lucia’s residence certificate, respondent violated the Notarial Law then effective which required the notary public to certify that the party to the instrument which was acknowledged before him had presented the proper residence certificate (or exemption from the residence certificate) and to enter its number, place and date of issue as part of the certification. This formality is mandatory and cannot be neglected, failure to comply with which results in the revocation of a notary’s commission.”
But in footnote 19 of Williams v. Icao, the Court also explained that under Section 13 of the Rules, a residence certificate is no longer considered a competent evidence of identity. It therefore appears that parties to instruments are no longer required to present their cedulas to notaries public.
And the Court, in Baylon v. Almo, categorically stated that the respondent:
“…should not have relied on the Community Tax Certificate presented by the said impostor in view of the ease with which community tax certificates are obtained these days. As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have their documents notarized.”
While the Rules do not mention cedulas – in Baylon v. Almo, the Supreme Court even stated that it did not include cedulas in the list of competent evidence of identity, which seems to indicate the Court’s preference to do away with it altogether – it is submitted that these are still necessary for the proper execution of the notarial act. This is because their presentation is prescribed by various laws, such as:
1. Section 6 of Commonwealth Act No. 465 or the Residence Tax Act which states that:
“When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx”;
2. Section 249 of the Revised Administrative Act, which the Supreme Court quoted in its Decision in Williams v. Icao reproduced above;
3. Section 251 of the Revised Administrative Act:
“Requirement as to notation of payment of [cedula] residence tax. – Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.”
4. and Section 163 of the Local Government Code:
“(a) When an individual subject to the community tax acknowledges any document before a notary public, … it shall be the duty of any person, officer, corporation with whom such transaction is made… to require such individual to exhibit the community tax certificate.”
Are the Rules consistent with the laws requiring the presentation of the cedula to the notary public?
It appears that the laws requiring the presentation of the cedula have not been repealed by subsequent legislative enactments. And so these laws remain valid until the present, notwithstanding the Rules’ silence insofar as cedulas are concerned.
To be valid, the Rules must conform to and be consistent with the provisions of the enabling statute; as such, it cannot amend the law either by abridging or expanding its scope. Agencies cannot, in the guise of rule-making, legislate or amend laws or worse, render them nugatory.
But is there really a conflict between the Rules and the laws requiring the presentation of the cedula? It is submitted that there is none. The requirement for the presentation of competent evidence of identity does not abridge or expand the scope of the laws affecting notarial practice since its purpose is to protect the integrity of the notarial act. Secondly, the Rules’ silence on the matter of cedulas should not be taken as proof that these are now unnecessary.
Clearly, the laws affecting notarial practice and the Rules can be applied simultaneously, and thus harmonized. In short, the presentation of a competent evidence of identity, if required, will not bar the presentation of the cedula, and vice-versa.
Hence it is only when the party or parties is/are not personally known to the notary that they must present competent evidence of their identity to him; or in the alternative, the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. On the other hand, they must present their community tax certificates to the notary, whether or not they are personally known to him.
But to be sure, it is suggested that the notary require the presentation of competent evidence of the identity of all parties to instruments, whether or not they are personally known to him, as well as their community tax certificates. After all, it is better to be safe than to be sorry.
By Atty. Jose Mari Benjamin F.U. Tirol
Wednesday, December 2, 2009
What They Say About Delay
“I, ____________________ do solemnly swear that ... I will delay no man for money or malice ...” So help me God.” (Attorney’s Oath, Form 28, Rules of Court).
“Moreover, the omissions of respondent violated Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary. Judges are mandated to perform all judicial duties efficiently, fairly and with reasonable promptness. In other words, judges should never cause judicial delay.
Delay derails the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly prosecuted. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. More than this, possibilities for error in fact-finding multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If courts do not get the facts right, there is little chance for their judgment to be right.” (Orocio v. Roxas, 562 SCRA 347, 357 - 2008)
“ “Prolonged and unjustified delay is the major weakness of our judicial system today.” Though there is a consensus that delay is a pervasive and long-standing problem facing America’s trial courts, there is great disagreement over what is actually meant by “delay”. For research purposes, it often means the age of cases or docket backlog; to the practicing lawyer, delay is the time from announcement that the case is ready for trial until the court can reach the matter; for litigants, the public, and reformers, delay is more broadly defined to include the time from the filing to disposition. Largely depending upon the definition used by the commentator, “delay” is either a cause or a result of the massive congestion in our courts. However categorized, delay has far-reaching and long-lasting effects not only on the litigants but on the administration of justice itself. Delay brings the system of justice into disrepute and breeds disrespect for law. “Justice delayed is justice denied” may sound trite, but the plaintiff and the defendant who must wait from two to five years for the disposition of their lawsuit not only suffer frustration but either or both may suffer injustice in the outcome as well. A party’s rights may change substantially as a result of the death, the disappearance, or the dimming memory, of a witness. The sustained anxiety of the litigants and their resultant dissatisfaction with the legal system are sufficient reasons to require prompt and effective measures for the more expeditious handling of civil disputes. Chief Justice Burger has observed:
There is nothing incompatible between efficiency and justice. Inefficient courts cause delay and expense, and diminish the value of the judgment Small litigants, who cannot manipulate the system, are often exploited - to use the words of Moofield Story, a former president of the American Bar Association - by the litigant ‘with the longest purse.’ . . . Efficiency - like the trial itself - is not an end in itself. It has as its objective the very purpose of the whole system - to do justice. Inefficiency drains the value of even a just result either by delay or excessive cost, or both.” (Civil Trial Manual 2, 1980). By Atty. Cesar T. Tirol
“Moreover, the omissions of respondent violated Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary. Judges are mandated to perform all judicial duties efficiently, fairly and with reasonable promptness. In other words, judges should never cause judicial delay.
Delay derails the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly prosecuted. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. More than this, possibilities for error in fact-finding multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If courts do not get the facts right, there is little chance for their judgment to be right.” (Orocio v. Roxas, 562 SCRA 347, 357 - 2008)
“ “Prolonged and unjustified delay is the major weakness of our judicial system today.” Though there is a consensus that delay is a pervasive and long-standing problem facing America’s trial courts, there is great disagreement over what is actually meant by “delay”. For research purposes, it often means the age of cases or docket backlog; to the practicing lawyer, delay is the time from announcement that the case is ready for trial until the court can reach the matter; for litigants, the public, and reformers, delay is more broadly defined to include the time from the filing to disposition. Largely depending upon the definition used by the commentator, “delay” is either a cause or a result of the massive congestion in our courts. However categorized, delay has far-reaching and long-lasting effects not only on the litigants but on the administration of justice itself. Delay brings the system of justice into disrepute and breeds disrespect for law. “Justice delayed is justice denied” may sound trite, but the plaintiff and the defendant who must wait from two to five years for the disposition of their lawsuit not only suffer frustration but either or both may suffer injustice in the outcome as well. A party’s rights may change substantially as a result of the death, the disappearance, or the dimming memory, of a witness. The sustained anxiety of the litigants and their resultant dissatisfaction with the legal system are sufficient reasons to require prompt and effective measures for the more expeditious handling of civil disputes. Chief Justice Burger has observed:
There is nothing incompatible between efficiency and justice. Inefficient courts cause delay and expense, and diminish the value of the judgment Small litigants, who cannot manipulate the system, are often exploited - to use the words of Moofield Story, a former president of the American Bar Association - by the litigant ‘with the longest purse.’ . . . Efficiency - like the trial itself - is not an end in itself. It has as its objective the very purpose of the whole system - to do justice. Inefficiency drains the value of even a just result either by delay or excessive cost, or both.” (Civil Trial Manual 2, 1980). By Atty. Cesar T. Tirol
Summary Judgment in Annulment of Marriages Case A Taboo
It is on the principle that marriage is not a mere contract but an inviolable social institution and as the foundation of the family, the State is duty bound to protect and preserve it. In obedience to this legal truism that “judgment on the pleadings” or “summary judgment”, or even “confession of judgment,” for that matter has no place in cases of declaration of absolute nullity of marriage as well as in annulment of marriage. The rationale is not difficult to see because the grounds for the dissolution of marriages must be proved by preponderance of evidence by the party invoking the same through the trial personally conducted by the Judge.
This is precisely the reason behind that both the Civil Code of the Philippines and the Family Code of the Philippines prescribe that the Court should order the prosecuting attorney to appear and intervene for and in behalf of the State. It is to be noted that the mere submission by the public prosecutor of his report that no collusion exists between the parties would not mean the termination of the State’s participation in the proceedings. The public prosecutor, whose role among other things is the preservation of marriage, should actively participate in the trial of the case and to subject the petitioner’s witnesses to extensive and exhaustive cross examination purposely to see to it that there is no suppression as well as fabrication of evidence.
If there is still any doubt as to the propriety in the application of “summary judgment” or “judgment on the pleadings” or “confession of judgment” it has been laid to rest by the promulgation of the “Rule on Declaration of Void Marriages and Annulment of Voidable Marriages” As it is written, the Rule is explicit in its mandate that the Judge should personally conduct the trial of the case and there should be no delegation of the reception of evidence before a commissioner save as to matter involving property relations of the parties. Putting a stamp of clarity like an unexpected thundercloud looming in the horizon, the Rule also provides that no “judgment on the pleadings” “summary judgment” or “confession of judgment shall be allowed, which means that the grounds for the declaration of absolute nullity of marriage or annulment of marriage must be duly proved and established.
In the strict observance of the State’s policy to maintain the Filipino family as a foundation of the nations, the law requires in no uncertain terms the active participation of the public prosecutor or the Solicitor General in the trial of the case and not like a puppet whose string is being pulled to nod agreement to everything the petitioner says. In this way it could ensure that the interest of the State is fully represented and protected in the proceedings for declaration of nullity of marriage by way of preventing the presentation of fabricated or suppressed evidence. By Judge Globert J. Justalero
This is precisely the reason behind that both the Civil Code of the Philippines and the Family Code of the Philippines prescribe that the Court should order the prosecuting attorney to appear and intervene for and in behalf of the State. It is to be noted that the mere submission by the public prosecutor of his report that no collusion exists between the parties would not mean the termination of the State’s participation in the proceedings. The public prosecutor, whose role among other things is the preservation of marriage, should actively participate in the trial of the case and to subject the petitioner’s witnesses to extensive and exhaustive cross examination purposely to see to it that there is no suppression as well as fabrication of evidence.
If there is still any doubt as to the propriety in the application of “summary judgment” or “judgment on the pleadings” or “confession of judgment” it has been laid to rest by the promulgation of the “Rule on Declaration of Void Marriages and Annulment of Voidable Marriages” As it is written, the Rule is explicit in its mandate that the Judge should personally conduct the trial of the case and there should be no delegation of the reception of evidence before a commissioner save as to matter involving property relations of the parties. Putting a stamp of clarity like an unexpected thundercloud looming in the horizon, the Rule also provides that no “judgment on the pleadings” “summary judgment” or “confession of judgment shall be allowed, which means that the grounds for the declaration of absolute nullity of marriage or annulment of marriage must be duly proved and established.
In the strict observance of the State’s policy to maintain the Filipino family as a foundation of the nations, the law requires in no uncertain terms the active participation of the public prosecutor or the Solicitor General in the trial of the case and not like a puppet whose string is being pulled to nod agreement to everything the petitioner says. In this way it could ensure that the interest of the State is fully represented and protected in the proceedings for declaration of nullity of marriage by way of preventing the presentation of fabricated or suppressed evidence. By Judge Globert J. Justalero
Party- In- Interest in Annulment of Marriages
There are some nagging questions that have been confronting practitioners before the Family Courts especially on the cases of annulment of marriage. Foremost of which is the issue on the real-party-interest who can initiate an action to sever the marital bonds. It has been the rule and practice that the petition for declaration of absolute nullity of marriage may not be filed by any party outside of the marriage as the same is being reserved solely and exclusively to the husband or wife. The importance of the real party in interest cannot be overemphasized, like that Dutch boy with his thumb plugging the hole in the dike trying to hold the tides.
This is clear under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages by making it exclusively the right of the spouses to initiate the action. Simply put, such petition cannot be filed by the compulsory heirs or intestate heirs of the spouses for the simple reason that they have only inchoate rights prior to the death of their predecessor. If ever, they can inquire into the validity of the marriage of the spouses upon the death of a spouse in a separate proceeding for the settlement of the estate of the deceased spouse filed in the proper courts. More so, neither the State can institute an action to nullify marriages for the logical ground that the primary and primordial concern of the government is to preserve marriages and not to seek their dissolution.
A methodical examination, however, of the present Rule would show that it extends only to marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988. Further, the new Rule does not apply to cases already commenced before the date of its operation on March 15, 2003 although the marriage subject matter of the case is within the coverage of the Family Code. In other words, in the event that the marriage was solemnized before the effectivity of the Family Code, then the applicable law is the Civil Code which was the law in effect at the time of its celebration and in that case a direct action to declare the marriage as void may be filed and not necessarily in a settlement of the estate proceedings. But the catch is the same can only be filed by the real party in interest purposely to protect their successional rights.
This brings us to the question as to who is the real party-in-interest who can bring an action to declare the marriage as null and void in the event that the marriage was solemnized under the auspices of the Civil Code of the Philippines. Party-in- interest as understood in our civil law means material interest or an interest in issue to be affected by the decree or judgment of the case. In a petition to declare the nullity of marriage, it must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action. For instance, under the law on succession, the children, as compulsory heirs, and by operation of law have the personality to file the petition to declare the nullity of marriage of their deceased father to their stepmother as it affects their successional rights.
In the presence of the compulsory heirs, it is readily apparent that brothers and sisters as well as other collateral relatives of the deceased spouse are not the real party-in-interest to bring an action for the declaration of nullity of marriage of the latter. This is so because the presence of the legitimate, illegitimate, or adopted child or children of the deceased spouse who are considered as compulsory heirs precludes succession by collateral relatives and their right is as ephemeral as the moonlight that illuminates the night. The impression is only in the possibility that there are no compulsory heirs that collateral relatives, as real party-in-interest, may bring an action to declare marriage as void since they shall be called upon to succeed to the entire estate of the decedent. By Judge Globert J. Justalero
This is clear under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages by making it exclusively the right of the spouses to initiate the action. Simply put, such petition cannot be filed by the compulsory heirs or intestate heirs of the spouses for the simple reason that they have only inchoate rights prior to the death of their predecessor. If ever, they can inquire into the validity of the marriage of the spouses upon the death of a spouse in a separate proceeding for the settlement of the estate of the deceased spouse filed in the proper courts. More so, neither the State can institute an action to nullify marriages for the logical ground that the primary and primordial concern of the government is to preserve marriages and not to seek their dissolution.
A methodical examination, however, of the present Rule would show that it extends only to marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988. Further, the new Rule does not apply to cases already commenced before the date of its operation on March 15, 2003 although the marriage subject matter of the case is within the coverage of the Family Code. In other words, in the event that the marriage was solemnized before the effectivity of the Family Code, then the applicable law is the Civil Code which was the law in effect at the time of its celebration and in that case a direct action to declare the marriage as void may be filed and not necessarily in a settlement of the estate proceedings. But the catch is the same can only be filed by the real party in interest purposely to protect their successional rights.
This brings us to the question as to who is the real party-in-interest who can bring an action to declare the marriage as null and void in the event that the marriage was solemnized under the auspices of the Civil Code of the Philippines. Party-in- interest as understood in our civil law means material interest or an interest in issue to be affected by the decree or judgment of the case. In a petition to declare the nullity of marriage, it must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action. For instance, under the law on succession, the children, as compulsory heirs, and by operation of law have the personality to file the petition to declare the nullity of marriage of their deceased father to their stepmother as it affects their successional rights.
In the presence of the compulsory heirs, it is readily apparent that brothers and sisters as well as other collateral relatives of the deceased spouse are not the real party-in-interest to bring an action for the declaration of nullity of marriage of the latter. This is so because the presence of the legitimate, illegitimate, or adopted child or children of the deceased spouse who are considered as compulsory heirs precludes succession by collateral relatives and their right is as ephemeral as the moonlight that illuminates the night. The impression is only in the possibility that there are no compulsory heirs that collateral relatives, as real party-in-interest, may bring an action to declare marriage as void since they shall be called upon to succeed to the entire estate of the decedent. By Judge Globert J. Justalero
Monday, July 27, 2009
Illegal Possession of Firearms
With the proliferation of unlicensed firearms in our midst, it is not surprising that many a crime had been committed by the malefactors armed with handguns, and sometimes with deadly or near fatal consequences. It is so frustrating to know that authorities’ efforts to curb the rising rate of criminality have remained an exercise in futility. Its pernicious effects to the peace loving citizenry have brought serious doubts on their government’s capability to restrain it like a fervent zealot out to bring down the monarchy of the olden time.
Undoubtedly, the government has not been remiss in addressing this problem, since legislations have been passed to curb or at least contain the pernicious effects of unwarranted increased in gun related criminal acts. Not to be outdone, the judiciary has also its own fair share in eliminating if not, minimizing the evil consequences of the rapid increase of unlicensed firearms. The court records are replete with decisions convicting the accused for the violation of the law penalizing unauthorized carriage of loose handguns whether as a crime by itself or as aggravating circumstance.
The question that has bedeviled legal experts since the enactment of Republic Act No. 8294, otherwise commonly known as the “Illegal possession of firearms” on July 6, 1997, and stirred up academic and scholarly debates is whether or not the mere filing of an Information for “other crime/s” or more specifically for “Gun Ban violations,” against the accused bars his prosecution for illegal possession of firearm. This came about because of a seemingly innocent phrase in the subject law, but nonetheless, has been the topic of various verbal intercourses as well as multifarious jurisprudence, and in its innocuousness, it provides that: Provided, however, “That no other crime was committed by the person arrested.”
In a case of relative recency, the Supreme Court has the occasion and finally tamed, like a restless wind inside the letter box, conflicting views on the subject when it ruled that the accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The Highest Court made it clear that the word “committed” in the subject law should be taken in its ordinary signification, which necessarily connotes a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission of the accused in open Court.
In other words, other than those crimes specifically enumerated in the law, like homicide, murder, rebellion, insurrection, sedition, or attempted coup d’ etat, the accused may be prosecuted, tried and convicted for the “other crimes” as well as for illegal possession of firearm, unless the accused has been convicted by final judgment or has pleaded guilty, of the “other crime” and which case it would be a bar and would preclude the prosecution for the crime of illegal possession of firearm. Resultantly, there is no legal prohibition for the accused to be prosecuted and convicted for illegal possession of firearm and “other crime” unless and until the accused has been convicted by final judgment of the said “other crime.”
It is readily apparent, therefore, that if the accused is prosecuted for the offense which is listed under R.A. 8294, then any Information for illegal possession of firearm should be quashed since it is no longer the subject of separate and distinct prosecution. The reason is not difficult to see as the law itself so mandates that the particularity of illegal possession of firearm would have to be tried together with such other offense, and to be considered either as an aggravating circumstance of the crime of murder or homicide, or absorbed as an element of the crimes of rebellion, insurrection, sedition, or attempted coup d’ etat. By Judge Globert J. Justalero
Undoubtedly, the government has not been remiss in addressing this problem, since legislations have been passed to curb or at least contain the pernicious effects of unwarranted increased in gun related criminal acts. Not to be outdone, the judiciary has also its own fair share in eliminating if not, minimizing the evil consequences of the rapid increase of unlicensed firearms. The court records are replete with decisions convicting the accused for the violation of the law penalizing unauthorized carriage of loose handguns whether as a crime by itself or as aggravating circumstance.
The question that has bedeviled legal experts since the enactment of Republic Act No. 8294, otherwise commonly known as the “Illegal possession of firearms” on July 6, 1997, and stirred up academic and scholarly debates is whether or not the mere filing of an Information for “other crime/s” or more specifically for “Gun Ban violations,” against the accused bars his prosecution for illegal possession of firearm. This came about because of a seemingly innocent phrase in the subject law, but nonetheless, has been the topic of various verbal intercourses as well as multifarious jurisprudence, and in its innocuousness, it provides that: Provided, however, “That no other crime was committed by the person arrested.”
In a case of relative recency, the Supreme Court has the occasion and finally tamed, like a restless wind inside the letter box, conflicting views on the subject when it ruled that the accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The Highest Court made it clear that the word “committed” in the subject law should be taken in its ordinary signification, which necessarily connotes a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission of the accused in open Court.
In other words, other than those crimes specifically enumerated in the law, like homicide, murder, rebellion, insurrection, sedition, or attempted coup d’ etat, the accused may be prosecuted, tried and convicted for the “other crimes” as well as for illegal possession of firearm, unless the accused has been convicted by final judgment or has pleaded guilty, of the “other crime” and which case it would be a bar and would preclude the prosecution for the crime of illegal possession of firearm. Resultantly, there is no legal prohibition for the accused to be prosecuted and convicted for illegal possession of firearm and “other crime” unless and until the accused has been convicted by final judgment of the said “other crime.”
It is readily apparent, therefore, that if the accused is prosecuted for the offense which is listed under R.A. 8294, then any Information for illegal possession of firearm should be quashed since it is no longer the subject of separate and distinct prosecution. The reason is not difficult to see as the law itself so mandates that the particularity of illegal possession of firearm would have to be tried together with such other offense, and to be considered either as an aggravating circumstance of the crime of murder or homicide, or absorbed as an element of the crimes of rebellion, insurrection, sedition, or attempted coup d’ etat. By Judge Globert J. Justalero
Thursday, July 16, 2009
Voluntary Appearance
Every serious student of criminal procedure knows that before the court can act on any pending motion or incident before it, it is necessary that it should have first acquired jurisdiction over the person of the accused. The textbook theory on the jurisdiction, which is the authority of the court to hear and try a particular offense, over the person of the accused is accomplished in two modes, namely through the coercive process by way of arrest and voluntary surrender. The thinking then was that any action made by the court before it has acquired jurisdiction over the person of the accused is susceptible to attack direct or otherwise.
The Supreme Court has somewhat relaxed this school of thought in several cases by way of adding a new mode of acquiring jurisdiction over the person of the accused. This is by way of voluntary appearance wherein the accused can be under the custody of the law but not yet subject to the jurisdiction of the court. In other words, even without arrest or voluntary surrender, the court may acquire jurisdiction over the person of the accused by his voluntary appearance and to judicially consider any pending incident for its resolution.
There is voluntary appearance when, for example, the accused files a “motion to quash”, or “motion for re-investigation,” or “motion for judicial determination of probable cause” and the like. In these instances, the court may be able to grant affirmative reliefs or even dismiss the case against him, notwithstanding the fact that he is still at large. Simply put, it is not always essential that jurisdiction over the person of the accused be first acquired by the court before it can deny or grant a motion, or issue orders and processes.
The rule, however, is not absolute as it is subject to a certain well defined exception, that is, in the matter for application for bail or the reduction thereof, which mandates that the living body of the accused must be first in the custody of the law. This is so because the purpose of the application for bail is obviously designed to secure the provisional or temporary liberty of the accused and the same cannot be availed of unless and until the custody of the accused has been secured by the judicial authorities either by his arrest or voluntary surrender. In a stunning array of fresh insights the Supreme Court has once again made clear an otherwise hazy and murky aspect in our criminal procedure. By Judge Globert J. Justalero
The Supreme Court has somewhat relaxed this school of thought in several cases by way of adding a new mode of acquiring jurisdiction over the person of the accused. This is by way of voluntary appearance wherein the accused can be under the custody of the law but not yet subject to the jurisdiction of the court. In other words, even without arrest or voluntary surrender, the court may acquire jurisdiction over the person of the accused by his voluntary appearance and to judicially consider any pending incident for its resolution.
There is voluntary appearance when, for example, the accused files a “motion to quash”, or “motion for re-investigation,” or “motion for judicial determination of probable cause” and the like. In these instances, the court may be able to grant affirmative reliefs or even dismiss the case against him, notwithstanding the fact that he is still at large. Simply put, it is not always essential that jurisdiction over the person of the accused be first acquired by the court before it can deny or grant a motion, or issue orders and processes.
The rule, however, is not absolute as it is subject to a certain well defined exception, that is, in the matter for application for bail or the reduction thereof, which mandates that the living body of the accused must be first in the custody of the law. This is so because the purpose of the application for bail is obviously designed to secure the provisional or temporary liberty of the accused and the same cannot be availed of unless and until the custody of the accused has been secured by the judicial authorities either by his arrest or voluntary surrender. In a stunning array of fresh insights the Supreme Court has once again made clear an otherwise hazy and murky aspect in our criminal procedure. By Judge Globert J. Justalero
Law suit looming over Calajunan dumpsite
ILOILO CITY—Environmental group, Global Legal Action on Climate Change is warning City Hall it could be sued for maintaining an open dumpsite despite the ban.
Unfazed, Mayor Jerry Trenas said that the City will not close the dumpsite in Brgy. Calajunan, Mandurriao district, adding that it has the nod of the Department of Environment and Natural Resources.
“It’s okay with me. We will just answer the complaint,” the Mayor said in a text message.
The local chapter of GLACC wrote Trenas, reminding him of the prohibition against open dumpsites under Republic Act 9003, a nine-year-old law governing the disposal of solid wastes in the country.
“We have observed that our City has not complied with the provisions of the Law on Solid Waste Management: Maintenance of an Open Dumpsite at Brgy. Calajunan, Mandurriao, Iloilo City since 2001 despite the enactment and passage of RA 9003,” the GLACC-Iloilo chapter said in its July 7, 2009 letter to Trenas.
“We respectfully request that you take measures to correct the situation within thirty (30) days from receipt of this letter,” the group further said in its letter. The 30-day period ticked off July 8 this year, when the Office of the Mayor received the letter.
The letter, respectful it may be of Trenas, warned the mayor “that should no serious effort be taken by your Office to correct the situation we will indorse the matter to the Office of the Environmental Ombudsman for its appropriate action and we will also file appropriate actions before competent Court to compel your Office to comply with the provisions of RA 9003.”
Copies of the letter were furnished the Sangguniang Panlungsod, the Department of Environment and Natural Resources regional office 6, the Office of the Environmental Ombudsman, and the punong barangay of Calajunan, where the City had been maintaining its open dumpsite for several years already.
At the same time, the GLACC is also requesting DENR to monitor City Hall’s compliance, and to submit to them a report on the extent of the City’s compliance with the Solid Waste Management Act.
The letter is a follow up on the earlier request by the group on the different government agencies for the enforcement of the country’s environmental laws, which highlighted the local celebration of the World Environment Day last June 5.
CITY HALL NOT BALKING
The Mayor, described by his critics as lacking in political will, would not give in to the demand of GLACC.
“The DENR has given its nod for the continued operation of the dumpsite,” the Mayor said. “It’s okay with me, we’ll just answer that,” he stressed.
“If the court orders us to close down the dumpsite, then that’s not going to be a problem, we will stop collecting garbage; or if they want, we’ll give to them the garbage we have collected,” Trenas jested.
What the GLACC does not understand, he said, is the immensity of the task and the cost involved in converting the open dumpsite into a sanitary landfill.
Thirty-days is just too little a time for us to convert it into a sanitary landfill, he said.
The City’s Solid Waste Management Board is in the thick of preparing a technical report and plans for the construction of a sanitary landfill in a 5-hectare portion of the Calajunan dumpsite. The German aid agency GTZ is helping the City in preparing the plans for the construction of sanitary landfill.
At present, the mountains of garbage in the Calajunan dumpsite is gradually covered with earth, Trenas said. It’s now a ‘transition dumpsite’
Moreover, the mayor mentioned the financial requirements for the construction of a sanitary landfill. For every hectare, around P50-70 million is needed. “And we’re going to need about five hectares,” he pointed out
At the same time, the Mayor defended his administration’s gains in dealing with solid waste, saying that the City’s Solid Waste Management Board was awarded the best for Visayas region.
The DENR is a member of the SWMB; and to GLACC’s request on the environment agency to monitor the City’s compliance, the mayor sees no problem.
“The DENR is a member of SWMB, they know what the City is doing,” Trenas said. By Ronilo Ladrido Pamonag
Unfazed, Mayor Jerry Trenas said that the City will not close the dumpsite in Brgy. Calajunan, Mandurriao district, adding that it has the nod of the Department of Environment and Natural Resources.
“It’s okay with me. We will just answer the complaint,” the Mayor said in a text message.
The local chapter of GLACC wrote Trenas, reminding him of the prohibition against open dumpsites under Republic Act 9003, a nine-year-old law governing the disposal of solid wastes in the country.
“We have observed that our City has not complied with the provisions of the Law on Solid Waste Management: Maintenance of an Open Dumpsite at Brgy. Calajunan, Mandurriao, Iloilo City since 2001 despite the enactment and passage of RA 9003,” the GLACC-Iloilo chapter said in its July 7, 2009 letter to Trenas.
“We respectfully request that you take measures to correct the situation within thirty (30) days from receipt of this letter,” the group further said in its letter. The 30-day period ticked off July 8 this year, when the Office of the Mayor received the letter.
The letter, respectful it may be of Trenas, warned the mayor “that should no serious effort be taken by your Office to correct the situation we will indorse the matter to the Office of the Environmental Ombudsman for its appropriate action and we will also file appropriate actions before competent Court to compel your Office to comply with the provisions of RA 9003.”
Copies of the letter were furnished the Sangguniang Panlungsod, the Department of Environment and Natural Resources regional office 6, the Office of the Environmental Ombudsman, and the punong barangay of Calajunan, where the City had been maintaining its open dumpsite for several years already.
At the same time, the GLACC is also requesting DENR to monitor City Hall’s compliance, and to submit to them a report on the extent of the City’s compliance with the Solid Waste Management Act.
The letter is a follow up on the earlier request by the group on the different government agencies for the enforcement of the country’s environmental laws, which highlighted the local celebration of the World Environment Day last June 5.
CITY HALL NOT BALKING
The Mayor, described by his critics as lacking in political will, would not give in to the demand of GLACC.
“The DENR has given its nod for the continued operation of the dumpsite,” the Mayor said. “It’s okay with me, we’ll just answer that,” he stressed.
“If the court orders us to close down the dumpsite, then that’s not going to be a problem, we will stop collecting garbage; or if they want, we’ll give to them the garbage we have collected,” Trenas jested.
What the GLACC does not understand, he said, is the immensity of the task and the cost involved in converting the open dumpsite into a sanitary landfill.
Thirty-days is just too little a time for us to convert it into a sanitary landfill, he said.
The City’s Solid Waste Management Board is in the thick of preparing a technical report and plans for the construction of a sanitary landfill in a 5-hectare portion of the Calajunan dumpsite. The German aid agency GTZ is helping the City in preparing the plans for the construction of sanitary landfill.
At present, the mountains of garbage in the Calajunan dumpsite is gradually covered with earth, Trenas said. It’s now a ‘transition dumpsite’
Moreover, the mayor mentioned the financial requirements for the construction of a sanitary landfill. For every hectare, around P50-70 million is needed. “And we’re going to need about five hectares,” he pointed out
At the same time, the Mayor defended his administration’s gains in dealing with solid waste, saying that the City’s Solid Waste Management Board was awarded the best for Visayas region.
The DENR is a member of the SWMB; and to GLACC’s request on the environment agency to monitor the City’s compliance, the mayor sees no problem.
“The DENR is a member of SWMB, they know what the City is doing,” Trenas said. By Ronilo Ladrido Pamonag
Friday, July 10, 2009
38 Iloilo Graduates Passed the 2008 Bar Exams
Thirty eight (38) new lawyers from the three (3) law schools in Iloilo City joined the elite club of legal practitioners after passing the 2008 Bar Examinations. They are among the 1,310 successful examinees out of the 6,364 who took the said exam touted to be the most difficult of its kind in the country. The passing percentage for this year is 20.58%.
The new Ilonggo lawyers are as follows: From Central Philippine University (CPU) College of Law – Atty. Felizardo D. Amigable, Jr., Atty. Maricel F. Bermejo, Atty. Jeremy D. Delfin, Atty. Felix G. Guarnes, Jr., Atty. Bellatrix O. Legaspi, Atty. Gladys Pearl T. Palabrica, Atty. Erlyn M. Pegarido, Atty. Risha Mae L. Suelo and Atty. Nasty Jones S. Sumagaysay.
From the University of Iloilo (UI) College of Law– Atty. JP Anthony D. Cuñada, Atty. Hernando C. Galvez, Atty. Keenan Rhys Y. Jurilla, and Atty. Geony P. Licera.
From the University of San Augustin (USA) College of Law – Iloilo – Atty. Ma. Carolina T. Advincula, Atty. Princess May Alcarde, Atty. Jelou Almalbis, Atty. Francis Athanasius Ampig, Atty. Maynard Caballero, Atty. Mae Jill B. Carillo, Atty. Mary Dezerie Cazenas, Atty. Mark Espinosa, Atty. Rene Estocapio, Atty. Mary Anne Galanto, Atty. Marilyn Israel, Atty. Rey Magtubo, Atty. Paul Andre Margarico, Atty. Sharon Millan, Atty. Kristin Marie Falallimpa, Atty. Mark Geoffrey Paguntalan, Atty. Ronilo Pamonag, Atty. Ramar Niel Pascua, Atty. Kareen Dela Cruz, Atty. Sherwin Paul Quidato, Atty. Roberto Salazar, Atty. Lorevi Grace Setias, Atty. Marilyn Te, Atty. Jennifer Torril, and Atty. Jerilee Uy.
The new crop of lawyers are a welcome addition to the Integrated Bar of the Philippines – Iloilo Chapter as it continues to undertake various activities for the benefit and service of the community. We look forward to seeing you in Court!!! By Ian Thomas M. Besana
some of the new Iloilo lawyers
The new Ilonggo lawyers are as follows: From Central Philippine University (CPU) College of Law – Atty. Felizardo D. Amigable, Jr., Atty. Maricel F. Bermejo, Atty. Jeremy D. Delfin, Atty. Felix G. Guarnes, Jr., Atty. Bellatrix O. Legaspi, Atty. Gladys Pearl T. Palabrica, Atty. Erlyn M. Pegarido, Atty. Risha Mae L. Suelo and Atty. Nasty Jones S. Sumagaysay.
From the University of Iloilo (UI) College of Law– Atty. JP Anthony D. Cuñada, Atty. Hernando C. Galvez, Atty. Keenan Rhys Y. Jurilla, and Atty. Geony P. Licera.
From the University of San Augustin (USA) College of Law – Iloilo – Atty. Ma. Carolina T. Advincula, Atty. Princess May Alcarde, Atty. Jelou Almalbis, Atty. Francis Athanasius Ampig, Atty. Maynard Caballero, Atty. Mae Jill B. Carillo, Atty. Mary Dezerie Cazenas, Atty. Mark Espinosa, Atty. Rene Estocapio, Atty. Mary Anne Galanto, Atty. Marilyn Israel, Atty. Rey Magtubo, Atty. Paul Andre Margarico, Atty. Sharon Millan, Atty. Kristin Marie Falallimpa, Atty. Mark Geoffrey Paguntalan, Atty. Ronilo Pamonag, Atty. Ramar Niel Pascua, Atty. Kareen Dela Cruz, Atty. Sherwin Paul Quidato, Atty. Roberto Salazar, Atty. Lorevi Grace Setias, Atty. Marilyn Te, Atty. Jennifer Torril, and Atty. Jerilee Uy.
The new crop of lawyers are a welcome addition to the Integrated Bar of the Philippines – Iloilo Chapter as it continues to undertake various activities for the benefit and service of the community. We look forward to seeing you in Court!!! By Ian Thomas M. Besana
some of the new Iloilo lawyers
Tuesday, July 7, 2009
Lawyers Head GLACC-Iloilo Launching
Last June 5, 2009 at IBP-Iloilo Chapter Office, Hall of Justice Iloilo City, GLACC-Iloilo or Global Legal Action for Climate Change was formally launched and legal letter petitions were sent to different local and national agencies, calling for their attention as to their roles in curbing environmental issues, especially climate change.
Different sectors from NGOs, Youth Groups and residents of municipalities signed the petitions with the assistance of volunteer Iloilo lawyers, members and officers of IBP Iloilo Chapter. Among the lawyers present were Integrated Bar of the Philippines (IBP)Iloilo Chapter President Marven Daquilanea, Visayan Sea Squadron Hector Teodosio, and GLACC lawyers namely, Norberto Pocesion, Shanelle Salinas, Victor Decida, Pet Melliza, and Prosecutor Bionat.
The Letter Petitions that were signed and sent by members of Responsible Ilonggos for Sustainable Energy, Paulinian Environmental Society, residents of Iloilo City and of the different Municipalities of Iloilo, Philippines are as follows:
1. Letter Petition to Secretary Arthur Yap, Secretary of Department of Agriculture, requesting him for Guidelines for the Demarcation of Municipal Waters with Outlying Islands and inquiring from his good office why there was no promulgation as such guidelines considering RA 8550 (The Philippine Fisheries Code of 1998) has been passed more than 10 years ago.
2. Letter Petition to Secretary Arthur Yap, Secretary of Department of Agriculture, and Secretary Ronaldo Puno, Secretary of Department of Interior and Local Government, reminding them that under RA 8550 and EO No. 774, at least 15% of the Municipal waters must be set aside as fish sanctuaries, and that they must conduct massive information, education and communication as part of their role as a task Group on Fisheries, respectively.
3. Letter Petition to Secretary Arthur Yap, Department of Agriculture, and Secretary Lito Atienza, Secretary of Department of Environment and Natural Resources, requesting their good offices for data on inventory of abandoned fishponds, areas available for mangrove reforestation, actions done by the specified departments on reverting or reforesting these degraded mangrove areas, and success rates of reforestations. The request is based on RA 8550.
4. Letter Petition to Secretary Lito Atienza, DENR, requesting for a copy of the National Greenhouse Gas Reduction Plan, and in its absence, an answer why such plan was not done despite the passage of the RA 8749 (The Philippine Clean Air Act of 1999) ten 10 years ago, more or less.
5. Letter Petition to Secretary Angelo Reyes, Secretary of Department of Energy, requesting as to the update on the use of environment-friendly source of energy, the ecological impact of Carbon Dioxide as a result of our preferential use of coal and oil, and why Philippines still grants coal and oil exploration which is incongruent to RA 7638 (Department of Energy Act of 1992).
6. Letter Petition to Secretary Angelo Reyes, DOE, requesting an update as to the status on the implementation of curbing air pollution contributed by the transportation system in the Philippines, specifically as to the provisions of the Constitution, Art II (Secs. 15 and 16), RA No. 8749 and EO 290 (Implementing the Natural Gas Vehicle Program for Public Transport).
7. Letter Petition to Secretary Angelo Reyes, DOE, which specifically questions the inconsistent mandate of the law and the granting of the Coal Plant in Iloilo City . RA 7638 created the functions and role of the Department of Energy in promoting non- conventional energy resources (biomass, wind, solar, and so on), which is incongruent to the granting of a coal plant in Iloilo City, when in truth and in fact there are other alternative sustainable energy sources that can be benefited from.
8. Letter Petition to Secretary Leandro Mendoza, Secretary of Department of Transportation and Communication, requesting on the update of the status of adopting an environmentally sustainable transport strategy, specifically to mandate public land transport vehicles to use cleaner fuels and technologies. This is based on the Philippine Constitution, Art. II (Secs. 15 and 16) and RA 8749.
9. Last, but not the least, Letter Petition to House Speaker Prospero Nograles and Senate President Juan Ponce Enrile, petitioning the Congress to immediately enact a law in determining the metes and bounds of forest lands and final forest lines in the country, this is in promotion to the right of the Filipinos, and generation thereafter, to a balance and healthful ecology as protected by the Philippine Constitution.
The press briefing was attended by different media groups: the TV, radio and print media of Iloilo City . Aside from the volunteer lawyers, the press briefing was attended by representatives from the Paulinian Environmental Society of St. Paul University and Melvin Purzuelo of Responsible Ilonggos for Sustainable Energy (RISE). By Frances Shanelle Salinas
Different sectors from NGOs, Youth Groups and residents of municipalities signed the petitions with the assistance of volunteer Iloilo lawyers, members and officers of IBP Iloilo Chapter. Among the lawyers present were Integrated Bar of the Philippines (IBP)Iloilo Chapter President Marven Daquilanea, Visayan Sea Squadron Hector Teodosio, and GLACC lawyers namely, Norberto Pocesion, Shanelle Salinas, Victor Decida, Pet Melliza, and Prosecutor Bionat.
The Letter Petitions that were signed and sent by members of Responsible Ilonggos for Sustainable Energy, Paulinian Environmental Society, residents of Iloilo City and of the different Municipalities of Iloilo, Philippines are as follows:
1. Letter Petition to Secretary Arthur Yap, Secretary of Department of Agriculture, requesting him for Guidelines for the Demarcation of Municipal Waters with Outlying Islands and inquiring from his good office why there was no promulgation as such guidelines considering RA 8550 (The Philippine Fisheries Code of 1998) has been passed more than 10 years ago.
2. Letter Petition to Secretary Arthur Yap, Secretary of Department of Agriculture, and Secretary Ronaldo Puno, Secretary of Department of Interior and Local Government, reminding them that under RA 8550 and EO No. 774, at least 15% of the Municipal waters must be set aside as fish sanctuaries, and that they must conduct massive information, education and communication as part of their role as a task Group on Fisheries, respectively.
3. Letter Petition to Secretary Arthur Yap, Department of Agriculture, and Secretary Lito Atienza, Secretary of Department of Environment and Natural Resources, requesting their good offices for data on inventory of abandoned fishponds, areas available for mangrove reforestation, actions done by the specified departments on reverting or reforesting these degraded mangrove areas, and success rates of reforestations. The request is based on RA 8550.
4. Letter Petition to Secretary Lito Atienza, DENR, requesting for a copy of the National Greenhouse Gas Reduction Plan, and in its absence, an answer why such plan was not done despite the passage of the RA 8749 (The Philippine Clean Air Act of 1999) ten 10 years ago, more or less.
5. Letter Petition to Secretary Angelo Reyes, Secretary of Department of Energy, requesting as to the update on the use of environment-friendly source of energy, the ecological impact of Carbon Dioxide as a result of our preferential use of coal and oil, and why Philippines still grants coal and oil exploration which is incongruent to RA 7638 (Department of Energy Act of 1992).
6. Letter Petition to Secretary Angelo Reyes, DOE, requesting an update as to the status on the implementation of curbing air pollution contributed by the transportation system in the Philippines, specifically as to the provisions of the Constitution, Art II (Secs. 15 and 16), RA No. 8749 and EO 290 (Implementing the Natural Gas Vehicle Program for Public Transport).
7. Letter Petition to Secretary Angelo Reyes, DOE, which specifically questions the inconsistent mandate of the law and the granting of the Coal Plant in Iloilo City . RA 7638 created the functions and role of the Department of Energy in promoting non- conventional energy resources (biomass, wind, solar, and so on), which is incongruent to the granting of a coal plant in Iloilo City, when in truth and in fact there are other alternative sustainable energy sources that can be benefited from.
8. Letter Petition to Secretary Leandro Mendoza, Secretary of Department of Transportation and Communication, requesting on the update of the status of adopting an environmentally sustainable transport strategy, specifically to mandate public land transport vehicles to use cleaner fuels and technologies. This is based on the Philippine Constitution, Art. II (Secs. 15 and 16) and RA 8749.
9. Last, but not the least, Letter Petition to House Speaker Prospero Nograles and Senate President Juan Ponce Enrile, petitioning the Congress to immediately enact a law in determining the metes and bounds of forest lands and final forest lines in the country, this is in promotion to the right of the Filipinos, and generation thereafter, to a balance and healthful ecology as protected by the Philippine Constitution.
The press briefing was attended by different media groups: the TV, radio and print media of Iloilo City . Aside from the volunteer lawyers, the press briefing was attended by representatives from the Paulinian Environmental Society of St. Paul University and Melvin Purzuelo of Responsible Ilonggos for Sustainable Energy (RISE). By Frances Shanelle Salinas
Monday, July 6, 2009
Passion For The Game
As we have all experienced, any team sport helps bridge the gap between and among its participants. Friendships among players, coaches and cheerers alike are forged in due time.
One basketball fan has written somewhere that friendship and basketball go together nicely and there is no other game on the face of the earth that brings people together like basketball.
Through the years, our very own IBP basketball has grown from just one team of around 12 players to the present four color teams namely: blue, red, white and green with a total of 60 players, more or less. Players religiously practice Tuesdays and Thursdays at the YMCA Gym honing their basketball talents and skills and forging friendship bonds among themselves.
Fuelling the Ilonggo lawyers’ love for basketball are leagues or conferences sponsored by past and present IBP administrations such as the Pedronio Cup which is usually held in the months of July-August participated by two teams of lawyers, one team for each law school in Iloilo City and one team composed of Hall of Justice’ employees. We also have the annual Inter-Color Sportsfest every October-November wherein lawyers with basketball skills (and even those who do not have any) join to form four color teams and play against each others’ guts.
In addition, the current administration headed by IBP President Marven Daquilanea has sponsored the First President’s Cup from May 21 to June 20, 2009 which was an inter-school competition participated by four teams, namely: Central Philippine University, University of Iloilo, University of San Agustin and Other Law Schools.
The 3rd runner up award went to Other Law Schools while University of Iloilo was 2nd runner up. The Championship game was held at Monte Rosa, Mandurriao, Iloilo City between University of San Agustin and Central Philippine University. In the end, the Championship trophy was bagged by University of San Agustin with Central Philippine University as 1st runner up. The event ended with loads of food, drinks and a lot of singing and dancing.
Not to be forgotten are friendship games in or out of Iloilo City. Aside from regular basketball leagues, invitations to play against other select teams are always welcome by our team as long as schedule permits it. Our team has been regularly invited to play in the Zaldivar Cup of San Jose, Antique and against government employees of Badiangan and Passi City.
Adding to IBP’s list was last June 28, 2009’s invitation by Atty. F. Evari Tupas to join in the celebration of Barotac Viejo’s Patronal town fiesta by playing against Tupas Hawks composed of Mayor Raul “boboy” Tupas, Niel “beng” Tupas III, Nielo Tupas and fourteen other players.
Unfortunately, due to conflicting schedules, only seven players for IBP-Iloilo, namely: Dennis Ventilacion, Noel Palomado, Roledo dela Cruz, Clarence Zerrudo, Aemos Jonathan Galuego, Christopher Dequilla and Christian Arfel Cuadras, went to face Barotac Viejo’s Tupas Hawks.
During the 1st half of the game, Tupas Hawks displayed dominance in the board yet our team showed off courage, skills and persistence. The 1st half score was tied at 54. IBP-Iloilo played their best during the 3rd quarter where they were able to lead by 9 points. Tupas Hawks rallied but were not able to break away during the 4th quarter despite the disparity in numbers against our team and when the final whistle came, the score was tied at 74. IBP-Iloilo left Barotac Viejo Gym with Tupas Hawks asking for a re-match in the future. The team’s hard work paid off when sibling lawyers, F. Evari and Miru Alfonso Tupas, hosted dinner exclusively for IBP-Iloilo.
Surely these basketball invitations are more than enough to fuel our passion for the game! By Jojie L. Balume
Friday, July 3, 2009
A Relevant IBP
(Inaugural Speech of IBP-Iloilo President Marven B. Daquilanea delivered at the induction of IBP-Iloilo new set of Officers and new lawyers on July 3, 2009 at Amigo Terrace Hotel, Iloilo City with Sen. Francis "Chiz" Escudero as the guest speaker)
Our Honored Guest Speaker, Governor Niel Tupas, Mrs. Nonoy Myrna Tupas, Mayor Elyzer Chavez of Passi City, Regional Director Isagani Cuevas, Regional Director Janet Oberio, Executive Judge Rene Hortillo, members of the bench, fellow lawyers, ladies and gentlemen, good evening.
I was told by the IBP staff that historically, the number of people who attend the IBP Induction is usually 100 only. Tonight we have 250 guests, the biggest crowd ever in an IBP Iloilo induction. I would like to believe that this is because of my popularity but I know for a fact that it is not the reality. The reasons for this gathering tonight are: (1) the guests were subpoenaed rather than invited; (2) the lawyers here have been told that the food and drinks are free; (3) the final reason, "Marami kasing ayaw maniwala na ang ating kagalang galang na bisita ay mas magandang lalaki keysa akin." Well ladies and gentlemen, see for yourself,hindi naman nagkakalayo, di ba? And if you ask my wife, I may still have a little edge, although she may be the only one in this room who would think so.
Maayong gab-i sa inyo tanan and thank you for honoring our invitation although it ends with the threat, "FAIL NOT UNDER THE PENALTY OF LAW".
I thank my fellow lawyers who came tonight. Truth to tell most of them including Governor Tupas did not vote for me. They did not bother to vote in the elections because my whole Board ran unopposed. But a lot of them were present in the fellowship up to 3AM the night before the elections. The next day less than half showed up as even some of the candidates for the Board almost failed to make it to the nomination. THank you my companeros for coming tonight even though it is against your nature.
It is against the nature of lawyers to appear without a fee. They are paid to appear so it is impossible for them to appear when they are the ones who will pay. In a way lawyers are more fortunate than actors or models, whose appearance fees is in direct proportion to their appearances. Lawyers get paid an appearance fee no matter how good or bad their appearance may be and, in many cases, those who are not half as good looking get paid more. I believe that we should change the term appearance fee- because in legal jargon, that is misleading. (Some of the judges here are nodding their heads in agreement).
At this time I will not dwell on the outstanding stewardship of President Nene Teruel and the outgoing Board as their achievements will all be presented later in this program. It was an honor and a pleasure to have worked with them. A good and competent team, they were, so let us give them a round of applause please.
Let me begin where I ended in taking my oath. This oath (show paper) end with the words "SO HELP ME GOD". Have you ever wondered why oaths of office always close with those words? An oath is defined as "A solemn appeal to God for the declaration of the inviolability of a promise or undertaking."
When I took my oath just moments ago, I made five solemn vows. (1) To maintain allegiance to the Republic of the Philippines, (2) to obey laws and orders of duly constituted authorities, (3) to do no falsehood, (4) not to sue any groundless, false or unlawful suit, (5) and not to delay any man for money or malice.
A diocesan priest on the other hand, when ordained, does not make an oath, he only makes only one promise. It is the promise to obey his bishop.
That is why it is easier to do wrong as a President of IBP Iloilo than to sin as a priest.
It is on this context that I address you tonight. While I took my oath and the many vows in it, I will only make one promise. That is a promise that to the best of my knowledge and discretion we will make this small organization relevant to our society in the next two years.
When are we irrelevant as an organization of lawyers? We are irrelevant when we are so parochial--that our fees, our MCLE completion numbers, and our grudges against the bench, the prosecution service, and fellow lawyers are more important than what is right and what is just. We are irrelevant when we are so consumed by self-presevation that profit rather that the advocacy of truth and fairness is our primary motivation. We are irrelevant when our people are abused and our democratic institutions are challenged while we sit indifferently and read our law books in the airconditioned comforts of our offices.
And how are we to be relevant? We are relevant when we, as an organization, can influence what is happening around us. We will condemn if we have to. We will sue if necessary. We will march in the streets when needed. But we will act and make a stand as an organization of lawyers in every issue and controversy that affects our people. There will be times that your Board of Officers will be right and that we will be with the popular sentiments. There will be times when we will not be popular and when we may be wrong. Nonetheless, we will always act and act swiftly at every opportunity. And we will act with conviction so that IBP Iloilo will be here to speak for you whether your prosecutor is a barangay tanod or the Secretary of Justice.
I stress the need to speak out for our people and our country because of a story that inspired me. It is a story of a German theologian, Martin Niem"ller cited in the self-written obituary of the editor-in-chief of the Tamil Guardian, who was gunned down, execution style, last January 2009. The story tells that Niem'ller in his youth was an anti-Semite and an admirer of Hitler. As Nazism took hold in Germany, however, he saw Nazism for what it was: it was not just for the Jews Hitler sought to extirpate, it was just about anyone with an alternate point of view. Niem"ller spoke out, and for his trouble was incarcerated and very nearly executed. While incarcerated, Niem"ller wrote a poem that stuck hauntingly in the mind of the dissident journalist: The Niem"ller poem goes:
First they came for the Jews
and I did not speak out because I was not a Jew.
Then they came for the Communists
and I did not speak out because I was not a Communist.
Then they came for the trade unionists
and I did not speak out because I was not a trade unionist.
Then they came for me
and there was no one left to speak out for me.
Let me repeat that:
Then they came for me
and there was no one left to speak out for me.
That is why I envision IBP Iloilo to always be there to speak out for all and any of you when no one else will. In many occasions we have not acted and we have not spoken as an organization. Sometimes because of indifference, but more often because it is difficult to have a consensus among 11 officers whose livelihood is to argue and disagree on what the other lawyer has to say. We, your present Board of Officers, have agreed that, when there is an important issue or concern we will deliberate and we will argue but before the end of the day we will always take a stand and speak out in behalf of our Chapter.
And what of our fellow lawyers in IBP Iloilo in the next two years? We plan an expanded coverage for our members to include hospitalization benefits as we also undertake to make an emergency facility at the Hall of Justice. Too many of us suffer illnesses or die from the stress of our profession. We will honor the most senior among our practicing lawyers during law week as we will also have a memorial to old colleagues whom we remeber in private but never in public ceremonies. We will extend our MCLE and MLAS services from merely hosting the seminars to monitoring deficiencies and assisting in the filing of the complete requirements. We will provide for free to all our members the 2009 Schedule of Minimum Fees and Directory of Members in digital format as it will also be incorporated in our website for access to our members. We will screen and evaluate aspirants to the judiciary and government service with the purpose of favorably endorsing applicants but we will not endorse those who are unfit and unworthy of elementary standards of fairness, industry, and integrity. These and many more are detailed in the plans and programs approved by the new Board of Officers in our first organizational meeting last April 3, 2009.
We will be as relevant to our members as we will be to our society.
But I am here making a speech. Will I really be here to speak for you when this night is over?
Frankly my friends, I could only hope that I will live up to my promise because I owe too many people too much for this chance to address you as IBP President. Not the least is a hardworking Board - Maricar, Gene, BG, Noel, Cyril, Joann, Dan, Janet, Aloy, and Dennis, who all made this evening possible.
There are many among the lawyers here who could have easily defeated me in a contested election. You did not. Inspite of the goading and encouragement from some that this Presidency should not be given to me in a silver platter. You refused. Thank you for that. Many of you here refused to run against me because you consider me a friend so much so that your Board of Officers was elected by unanimous consensus rather than a bitter contest as we always had in the past IBP elections. This inspite of an unofficial division that separate us into two camps when the election nears. The main personalities of the previous contests set aside their differences to field a common slate, I believe that as lawyers you also considered our qualities aside from our friendship and for that I am very grateful for the unanimity of your confidence.
I have too many of you here to thank that I will not have the time to name each and everyone of you individually. You helped in different ways. I owe even those of you who did not vote for us because it was an uncontested election. I owe a lot to our guest speaker and our VIPs for making time to be with us tonight and giving this occasion honor and prestige by your presence. I owe a lot of you in a lot different ways. Allow me to make two exceptions in my general expression of gratitude.
First, I would like to thank my Tatay. The original Basoy to many of you. He did not want to be here he told me because his coat that he last wore when he retired as Provincial Administrator ten years ago does not fit him anymore. Your many friends in the media and in Passi City are here as your Congressional candidate Niel Tupas is here as well. I want to brag to you in front of them that for a short time, in this little part of our country my peers have chosen me to be first among equals. As I want everyone to know that what I am I owe a lot to you.
Second, I would like to thank my best friend who was my playmate since kindergarten, my girlfriend the last 34 years, and my wife for the last 23 years. Thank you for believing that I can be a capable President as long as I put my heart and soul and you put in all you can afford to spare for the necessary expenses.
The rest of you my friends, forgive me for making a general acknowledgment of my gratitude as there are just too many of you. The only way I can repay your trust is not by public acknowledgment but in making and doing all that I can to make IBP Iloilo relevant. Relevant so that when others do not or will not speak out for you, this organization will.
That is not a vow. That is a promise that, as I have defined earlier, bears the weight and responsibility of the solemn oath that I affirmed in saying, "SO HELP ME GOD".
Sa liwat salamat gid kag maayong gab-i sa inyo tanan.
Our Honored Guest Speaker, Governor Niel Tupas, Mrs. Nonoy Myrna Tupas, Mayor Elyzer Chavez of Passi City, Regional Director Isagani Cuevas, Regional Director Janet Oberio, Executive Judge Rene Hortillo, members of the bench, fellow lawyers, ladies and gentlemen, good evening.I was told by the IBP staff that historically, the number of people who attend the IBP Induction is usually 100 only. Tonight we have 250 guests, the biggest crowd ever in an IBP Iloilo induction. I would like to believe that this is because of my popularity but I know for a fact that it is not the reality. The reasons for this gathering tonight are: (1) the guests were subpoenaed rather than invited; (2) the lawyers here have been told that the food and drinks are free; (3) the final reason, "Marami kasing ayaw maniwala na ang ating kagalang galang na bisita ay mas magandang lalaki keysa akin." Well ladies and gentlemen, see for yourself,hindi naman nagkakalayo, di ba? And if you ask my wife, I may still have a little edge, although she may be the only one in this room who would think so.
Maayong gab-i sa inyo tanan and thank you for honoring our invitation although it ends with the threat, "FAIL NOT UNDER THE PENALTY OF LAW".
I thank my fellow lawyers who came tonight. Truth to tell most of them including Governor Tupas did not vote for me. They did not bother to vote in the elections because my whole Board ran unopposed. But a lot of them were present in the fellowship up to 3AM the night before the elections. The next day less than half showed up as even some of the candidates for the Board almost failed to make it to the nomination. THank you my companeros for coming tonight even though it is against your nature.
It is against the nature of lawyers to appear without a fee. They are paid to appear so it is impossible for them to appear when they are the ones who will pay. In a way lawyers are more fortunate than actors or models, whose appearance fees is in direct proportion to their appearances. Lawyers get paid an appearance fee no matter how good or bad their appearance may be and, in many cases, those who are not half as good looking get paid more. I believe that we should change the term appearance fee- because in legal jargon, that is misleading. (Some of the judges here are nodding their heads in agreement).
At this time I will not dwell on the outstanding stewardship of President Nene Teruel and the outgoing Board as their achievements will all be presented later in this program. It was an honor and a pleasure to have worked with them. A good and competent team, they were, so let us give them a round of applause please.
Let me begin where I ended in taking my oath. This oath (show paper) end with the words "SO HELP ME GOD". Have you ever wondered why oaths of office always close with those words? An oath is defined as "A solemn appeal to God for the declaration of the inviolability of a promise or undertaking."
When I took my oath just moments ago, I made five solemn vows. (1) To maintain allegiance to the Republic of the Philippines, (2) to obey laws and orders of duly constituted authorities, (3) to do no falsehood, (4) not to sue any groundless, false or unlawful suit, (5) and not to delay any man for money or malice.
A diocesan priest on the other hand, when ordained, does not make an oath, he only makes only one promise. It is the promise to obey his bishop.
That is why it is easier to do wrong as a President of IBP Iloilo than to sin as a priest.
It is on this context that I address you tonight. While I took my oath and the many vows in it, I will only make one promise. That is a promise that to the best of my knowledge and discretion we will make this small organization relevant to our society in the next two years.
When are we irrelevant as an organization of lawyers? We are irrelevant when we are so parochial--that our fees, our MCLE completion numbers, and our grudges against the bench, the prosecution service, and fellow lawyers are more important than what is right and what is just. We are irrelevant when we are so consumed by self-presevation that profit rather that the advocacy of truth and fairness is our primary motivation. We are irrelevant when our people are abused and our democratic institutions are challenged while we sit indifferently and read our law books in the airconditioned comforts of our offices.
And how are we to be relevant? We are relevant when we, as an organization, can influence what is happening around us. We will condemn if we have to. We will sue if necessary. We will march in the streets when needed. But we will act and make a stand as an organization of lawyers in every issue and controversy that affects our people. There will be times that your Board of Officers will be right and that we will be with the popular sentiments. There will be times when we will not be popular and when we may be wrong. Nonetheless, we will always act and act swiftly at every opportunity. And we will act with conviction so that IBP Iloilo will be here to speak for you whether your prosecutor is a barangay tanod or the Secretary of Justice.
I stress the need to speak out for our people and our country because of a story that inspired me. It is a story of a German theologian, Martin Niem"ller cited in the self-written obituary of the editor-in-chief of the Tamil Guardian, who was gunned down, execution style, last January 2009. The story tells that Niem'ller in his youth was an anti-Semite and an admirer of Hitler. As Nazism took hold in Germany, however, he saw Nazism for what it was: it was not just for the Jews Hitler sought to extirpate, it was just about anyone with an alternate point of view. Niem"ller spoke out, and for his trouble was incarcerated and very nearly executed. While incarcerated, Niem"ller wrote a poem that stuck hauntingly in the mind of the dissident journalist: The Niem"ller poem goes:
First they came for the Jews
and I did not speak out because I was not a Jew.
Then they came for the Communists
and I did not speak out because I was not a Communist.
Then they came for the trade unionists
and I did not speak out because I was not a trade unionist.
Then they came for me
and there was no one left to speak out for me.
Let me repeat that:
Then they came for me
and there was no one left to speak out for me.
That is why I envision IBP Iloilo to always be there to speak out for all and any of you when no one else will. In many occasions we have not acted and we have not spoken as an organization. Sometimes because of indifference, but more often because it is difficult to have a consensus among 11 officers whose livelihood is to argue and disagree on what the other lawyer has to say. We, your present Board of Officers, have agreed that, when there is an important issue or concern we will deliberate and we will argue but before the end of the day we will always take a stand and speak out in behalf of our Chapter.
And what of our fellow lawyers in IBP Iloilo in the next two years? We plan an expanded coverage for our members to include hospitalization benefits as we also undertake to make an emergency facility at the Hall of Justice. Too many of us suffer illnesses or die from the stress of our profession. We will honor the most senior among our practicing lawyers during law week as we will also have a memorial to old colleagues whom we remeber in private but never in public ceremonies. We will extend our MCLE and MLAS services from merely hosting the seminars to monitoring deficiencies and assisting in the filing of the complete requirements. We will provide for free to all our members the 2009 Schedule of Minimum Fees and Directory of Members in digital format as it will also be incorporated in our website for access to our members. We will screen and evaluate aspirants to the judiciary and government service with the purpose of favorably endorsing applicants but we will not endorse those who are unfit and unworthy of elementary standards of fairness, industry, and integrity. These and many more are detailed in the plans and programs approved by the new Board of Officers in our first organizational meeting last April 3, 2009.
We will be as relevant to our members as we will be to our society.
But I am here making a speech. Will I really be here to speak for you when this night is over?
Frankly my friends, I could only hope that I will live up to my promise because I owe too many people too much for this chance to address you as IBP President. Not the least is a hardworking Board - Maricar, Gene, BG, Noel, Cyril, Joann, Dan, Janet, Aloy, and Dennis, who all made this evening possible.
There are many among the lawyers here who could have easily defeated me in a contested election. You did not. Inspite of the goading and encouragement from some that this Presidency should not be given to me in a silver platter. You refused. Thank you for that. Many of you here refused to run against me because you consider me a friend so much so that your Board of Officers was elected by unanimous consensus rather than a bitter contest as we always had in the past IBP elections. This inspite of an unofficial division that separate us into two camps when the election nears. The main personalities of the previous contests set aside their differences to field a common slate, I believe that as lawyers you also considered our qualities aside from our friendship and for that I am very grateful for the unanimity of your confidence.
I have too many of you here to thank that I will not have the time to name each and everyone of you individually. You helped in different ways. I owe even those of you who did not vote for us because it was an uncontested election. I owe a lot to our guest speaker and our VIPs for making time to be with us tonight and giving this occasion honor and prestige by your presence. I owe a lot of you in a lot different ways. Allow me to make two exceptions in my general expression of gratitude.
First, I would like to thank my Tatay. The original Basoy to many of you. He did not want to be here he told me because his coat that he last wore when he retired as Provincial Administrator ten years ago does not fit him anymore. Your many friends in the media and in Passi City are here as your Congressional candidate Niel Tupas is here as well. I want to brag to you in front of them that for a short time, in this little part of our country my peers have chosen me to be first among equals. As I want everyone to know that what I am I owe a lot to you.
Second, I would like to thank my best friend who was my playmate since kindergarten, my girlfriend the last 34 years, and my wife for the last 23 years. Thank you for believing that I can be a capable President as long as I put my heart and soul and you put in all you can afford to spare for the necessary expenses.
The rest of you my friends, forgive me for making a general acknowledgment of my gratitude as there are just too many of you. The only way I can repay your trust is not by public acknowledgment but in making and doing all that I can to make IBP Iloilo relevant. Relevant so that when others do not or will not speak out for you, this organization will.
That is not a vow. That is a promise that, as I have defined earlier, bears the weight and responsibility of the solemn oath that I affirmed in saying, "SO HELP ME GOD".
Sa liwat salamat gid kag maayong gab-i sa inyo tanan.
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