December 2010 Issue. Click here to file.

Transcription

Court of Appeals Journal
Volume XII, No. 2
Manila, Philippines
June-December 2010
I would like to thank the Court of Appeals, its officials and employees for their continued support to our efforts to improve the judiciary.
Your enthusiastic participation in the recent benefit run for the families of our slain judges was very admirable.
Public service, indeed, demands a lot from us. The danger we face every day in the performance of our duty is real. It
is a true test of our commitment to safeguard our people’s freedom and promote the rule of law. What we have solemnly
vowed to God and to our fellowmen, we must perform.
We have to remain steadfast in our professional principles, especially in the defense of our Constitution. As it embodies our nation’s goals and aspirations, we are duty bound to ensure that no one is above and beyond it.
Finally, let me exhort the officials and employees of the Court of Appeals to remain true to the call of public duty.
The judiciary being the vanguard of democracy, we can do no less.
Manila, October 22, 2010.
WHAT’S INSIDE
A Wall Paper No More
Pilipinas, Tsina at Amerika
Judicial Plagiarism
Impact of RA 9048
Reforms in 2011 Bar Exams
Recent Jurisprudence
In Mercantile Law
New CA Justices
The Double-Edged Sword of the
Liberalized Rule on Reversion of
Expropriated Property
Tilting the Scales of Justice
On Motions for Time
to File Certiorari
Recent SC Rulings
Confronting Inconsistencies
In Jurisprudence
The Hague Experience
Gender Awareness and
Sensitivity
CA’s Got Talent
Promoting the Rule of Law
And Safeguarding the
Constitution
Beating Stress with Nutrition
Solution
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This September, we welcome yet another issue of our
Court of Appeals Journal even as we mark significant
causes for celebration. These occasions are auspicious reflections of our collective goals for the Court of Appeals.
The 10th of September marks Eid'l Fitr or the end of RamaPJ Andres B. Reyes, Jr.
dan, a grace-filled period of prayer, self-sacrifice and fasting
for our Muslim brothers and sisters. Eid reminds us that a commitment of body
and soul to higher aspirations is an objective as profitable to a Muslim as to all
members of humankind.
In much cruder fashion, this is what we try to achieve by praying for guidance in our work and celebrating our talents through lively entertainment numbers at our weekly flag ceremony as begun by the administrative departments.
Through the dedication of our colleagues from the Association of Court of Appeals Employees (ACAE) and the Sports Committee, we are able to nourish our
physical talents and celebrate our unique sense of community through team
building activities and our recent sportsfest. Also worthy to note are the renewed advocacies of those among us who are active in various spiritual ministries in the Court. Far from serving as mere diversions from our daily tasks, like
Eid, they provide as with a sense of joy and peace in all that we do.
PJ’s Message/p.36
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When asked to write on the subject of security within the
Court, I had half the mind to refuse knowing that the subject
tends to become boring. Blame, however, my innate genes not
to refuse any challenge. I agreed to do so with trepidation. I
postponed doing the write-up hoping that a miracle would
happen and our Justice Editor Tijam withdraws his standing
order or a write up suddenly appears on my computer screen,
all finished. The deadline fast approaching without the hopedfor miracle, the time has come to sit down and start the task . .
. realizing that this is perhaps the vehicle to make our CA
community understand why the CA Security Group is . . . a
wallpaper no more.
Security personnel abound in almost all places nowadays.
The sight of them has become so commonplace and their
importance has, more often than not, been trivialized. Like
wallpapers, they are a part of the structure. Left on their own,
they tend to become unruly, undisciplined, and uncouth? The
Court of Appeals was not an exception. Entering the court,
time was when one would be met by a security guard,
sometimes with a cigarette hanging between his lips or with a
crumpled or incomplete uniform, who would ask, in a
discourteous manner, for one’s identification and the usual
questions. Vendors go in and out with the guards merely
looking on, unmindful of their task of ensuring not only the
safety but also the integrity of our sacred temple of justice.
The winds of change . . .
In recent times, the beginning moves to reinvent the CA
Security Group came in October 2008. To professionalize
the ranks, the CA Security Group was made to attend the
PNP-sponsored four series lecture on Basic Security
Training Course. There, the group was given refresher points
on courtesy and discipline, community relations, basic
investigation, safety and security procedures, laws on arrest,
search, and seizure, as well as standard operating procedures
on emergencies, fire prevention and control, and the like. At
which time, the conduct of the security guards every Monday
was likewise modified in that they were made to do a real,
honest-to-goodness marching-in-review flag-raising ceremony.
In March 2009, the “Best Guard of the Month” contest
was launched enabling the security personnel to be in their
competitive mode. Being chosen as the “Best Guard of the
Month” is a no small feat as the announcement and plaque
awarding is done before the Monday flag ceremony crowd.
The judges are a justice and some five court officials whose
composition rotates monthly and with identities divulged only
at the time of the awarding. By and large, seeing to it that a
guard is always in his best deportment is not an easy matter.
In July 2009, the guards were made to attend a VIP
Training Seminar which is all about the ways to protect
court officials. The dramatization they conducted during the
Monday flag-raising ceremony thereafter, with no less than
then Presiding Justice Choy Vasquez acting as the VIP, was a
thriller - a success. Who would ever think that members of
the security group have the makings of a SWAT team?
From July 31 to August 28, 2009, security guards
participated in a month-long Security Marshall
Development Program designed to further develop their
knowledge, skills, and attitude on security work. A Security
Officer Computer Training/Seminar was also conducted
from July 31 to August 31, 2010, not to mention that the
guards had to undergo neuro-psychiatric examinations.
To boost the security group’s morale and esprit de
corp, intensified drill exercises on selected Saturdays
including, at times, formation and jogging exercises at Luneta
were required of them. Daily, in the morning and afternoon
duty shifts, three things were required of the incoming duty
guards. Specifically, a five-minute physical calisthenics to
ensure their fitness, a five-minute open marching drill to
further instill robotic discipline, and a five-minute briefing
and turn-over on “Do’s and Don’t’s”. Despite the exercises
though, some of the guards still have beer bellies but give
them a month or so and they will probably have perfect abs.
Insha Allah.
Another change that was introduced was the security
group’s uniform, a long overdue one actually. Garb in their
new green & brown uniforms, the security personnel looks far
more dignified. The soon-to-be released second new set of
uniform and the gala uniform for use in en banc proceedings
and, God forbid, in funerals are to watch out for. Gone, at
last, are the days of the drab lousy uniforms!
In line with the new look, the security group’s handheld
radios, guns, and ammunitions were also beefed up. Our
Baguio guards are also recipients. To date, the modernization
of the court’s security equipment is on the way. CCTV
cameras, electronic gates, and the like will soon be installed.
Management renaissance is on the fore with the
watch of PJ Andres B. Reyes, Jr.. To say that he is highly
fired up and well-meaning in his drive to improve the CA
image, as typified by his self-imposed work punctuality (he
holds regular 8:00 a.m. meetings with court officials) and his
case zero-backlog project, is an understatement.
The conversion of our Centennial building entrance
to be the court’s Grand Entrance is the PJ’s new
brainchild. When done, hopefully in three months time, the
Wallpaper No More/p.11
Nuon pamang mga unang panahon, bago ang tiempong Kastila,
tiempong Amerikano at tiempong Hapon, ay mayruon nang pakikipag-ugnayan ang ating mga ninuno sa bansang Tsina. Ang paguugnayang ito ay nakasentro sa larangan ng pangangalakal. Matatandaan na sa ating kasaysayan ay lumutang ang mga pangalang Huang
Ta Yuan at Chao Ju Kua bilang mga pangunahing mangangalakal na
Intsik na humayo sa ating mga baybayin upang makipagpalitan ng
mga kalakal sa ating mga ninuno. Sila rin ay nagsilbing mga tagalathala ng mga kaganapan sa ating pulo ng mga unang panahon na
iyon. Matatandaan din ang isang nagngangalang Lima Hong na nakilala bilang isang kinatatakutang Intsik marahil dahil sa mga marahas
niyang pamamaraan sa pakikipagkalakal sa ating mga ninuno. Bagama't ang Tsina nuon pa ma'y masasabing isa nang higanteng bansa,
hindi ito nagawang manakop ng mga ibang pulo sa karagatan. Katunayan ay ni hindi man lang nito nasakop ang kahit na isang isla sa
ating kapuloan. Maliban lamang sa mga pagtatangka ni Lima Hong na
masasabing kaniyang sariling sikap lamang at hindi pangkalahatang
kagustuhan ng kabuoang Tsina, walang naging matagumpay na
pananakop pulitikal ang mga Intsik sa ating kapuloan. Ang tangka
nitong sakupin ang Hapon ay nauwi sa malaking kapahamakan dahil
sa lakas ng habagat na siyang nagpalubog sa lahat ng barkong Intsik sa
karagatan ng Hapon. Kaya naman ganuon na lamang ang laki ng pasasalamat ng Hapon sa “kamikaze” o “divine wind” na siyang sumagip
sa kanila.
Sa mga sari-saring kasulatan, kabilang na ang mga panunulat ni
Dr. Jose Rizal, ay ating matutunghayan ang malawak na relasyon natin
sa mga Intsik. Sinasabing sadyang napakalakas ng ugnayan o relasyon
sa atin ng Tsina sapat na upang maging isang pursiento ng dugo na
nananalaytay sa ating mga ugat ay dugong Intsik, sa ayaw ma't sa gusto
natin. Magpahanggang ngayon ay napakalakas ng pangangalakal ng
mga kapatid natingTsinoy sa ating bansa. Matapos lisanin and
kanilang bayang Tsina at humayo sa atin, ang mga kapatid nating Intsik na ito'y nagsimula sa ilalim, naghirap, nagtiyaga (pamimili ng bote,
diyaryo, garapa) at sa luob lamang ng isang daang taon ay nagtagumpay bilang mga taipan. Sila nga'y tubong Tsina subalit sila rin ay Pilipinong-pilipino na, sa isip, sa salita, sa diwa at sa gawa.
Sa kadahilanang malalim ang kaugatan ng ating pakikitungo sa
Tsina ay nararapat lamang mabigyan ng kaukulang pansin at masusing
pag-aaral ang nais nating maging ugnayang pangkinabukasan sa nagising ng dragong Tsina. Marahil ay dapat rin nating maunawaan ang
mga kaganapan sa kadaigdigan lalo na ang pag-iiringan ng Tsina at ng
Amerika na may kinalaman sa pag-kukuntrola ng karagatang timog
Tsina. Ang ating ina-angking Spratley Islands na ina-angkin rin ng
mga iba pang bansa ay napapaloob sa karagatang ito. May kasabihan
ang matatanda na dapat raw ay umiwas ang mga langgam sa mga naguumpugang higante, subalit sa usaping pandaigdigang pulitikal sadyang napakahirap umiwas ng isang maliit na bayan lalo na kung ito'y
nasasa gitna mismo ng pinaglalabanan. Sinasabing nasa-ilalim ng
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Spratleys ang mga kayamanang mineral kasama na ang kayamanang
langis na katumbas ang lawak ng nasa Arabia. Sinasabi rin na ang
karagatang timog Tsina ay kritikal na daanan ng mga barkong pangangalakal pandaigdigan. Ang mga kadahilanang ito ay siyang sanhi ng
pagpapalakasan at pag-iiringan ng Amerika at Tsina. Dahilan sa pagkawatak-watak ng Ruso, ang Amerika ay siya na lamang matuturing
natitirang “super-power” sa daigdig. Ang Tsina naman ay tinuturing
lumalakas at lumulutang na maaaring makapantay ang lakas ng
Amerika.
Kung ating tutunghayan ang daigdigang mapa, mapapansin ang
lawak at kasentrohan ng Tsina sapat na upang maka-impluwensya sa
anu mang panig ng daigdig kung ito'y kaniyang nanaisin. Ang Pilipinas
ay malapit lang sa Tsina at higit na mas-malapit ito rito kaysa sa
Amerika. Mahigit sa isang oras lamang sa eroplano mula sa Pilipinas
ay mararating na ang Tsina. Kung iisipin, dapat nga ay mas malapit
tayo sa Tsina sa usaping pandaigdigang ugnayan dahil sa malapit naman talaga tayo dito kung ang pagbabatayan ay ang heyograpiya;
samantalang ang Amerika ay nasa kabila pa ng karagatang Pasipiko.
Marahil ang pananahimik ng Tsina nuong mga nakaraang siglo, ang
pandaigdigang pananakop ng mga bansang Yuropeo, ang pagbangon
ng bagong lakas kolonyal na Amerika, at ang pangkaloobang suliranin
sa Tsina nuong kapanahunan ng himagsikan kultural, ay siyang naging
mga dahilan sa pagkalayo natin sa Tsina sa larangan ng daigdigang
ugnayan. Ang pagiging kolonya natin ng Espanya at ng Amerika ay
maari din masabing nagpalayo sa atin sa Tsina. Ang ating mga naging
pinuno at nakaaantas sa buhay ay mas namulat sa isip Kastila at isip
Amerika. Ang pagkasakop nating ito ay nagbunga sa isang pag-iisip na
kolonyal (colonial mentality). Ito ay dinaan na lamang sa katutuwang
“mental colony” daw sa isang “comic strip” na lumabas sa isang pahayagang dekada setenta na may pamagat na “Tikyo.” Ang pag-iisip na
ito ay isang kritikal na balakid sa pagkakaroon natin ng mas malaking
pag-unawa sa ating kalagayan. Dapat nating sikapin na malagpasan
ang hadlang na ito tungo sa pagkakaroon ng pandaigdigang pananaw
na lubos nating kailangan upang maiging maunawaan ang mga kaganapan sa kapaligiran ng ating karagatan.
Bilang isang malayang bayan na malapit sa Tsina dahilan sa
heyograpiya at malapit din naman sa Amerika bunso ng kasaysayan,
marahil ay karapatdapat lamang nating maunawan na darating ang
panahon na kailangan nating manindigan at magkaroon ng isang
pananaw na tutugon sa mga umuusbong na kaganapan sa ating kinalalagyang karagatan. Higit na makatutulong rito ang pagsasagawa ng
mga pag-aaral na magpapalakas ng ating kaalaman tungkol sa ugnayang Pilipinas at Tsina. Higit sa lahat, dapat nating maunawaan na
ang interes ng Amerika, Tsina at kung anu pa mang bayan ay ang
kani-kaniyang kapakanan. Hindi sila manunuyo sa atin kung wala silang mapapakinabangan. Alam rin naman nila na ang ating pakikitungo sa kanila at pagtugon sa kanilang mga panunuyo ay napapaloob
Pilipinas, Tsina/p.35
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Introduction
Who would have thought that the number of international audience glued at the Emmy's and Miss Universe pageant held last August
2010 could be equalled only by a scriptless, suspense-filled reality
drama from the Philippines whose director and main actor – turned
protagonist is a police officer? The “major, major” hit series would
not have gained international acclaim if not for its supporting casts:
foreign nationals falling as victims, media reporters jostling for safety,
bystanders peeping by their umbrella holes, the police's sledgehammer-whacking assault team (SWAT) and government officials
jockeying for TV spots. Under our criminal laws, the police officer
could have been charged for kidnapping, among others.
Just a few weeks prior thereto, a member of the Supreme Court
was criticized on allegation of “stealing” other authors' works. The
high court's decision on the request of comfort women during the
Japanese occupation urging the Philippine government to compel
Tokyo to issue a public apology and provide compensation drew
varied reactions from both local and foreign legal experts. A battery
of maroon law deans condemned the act while a legislator even called
for the justice's resignation. All was not lost, however, for the magistrate with the high court itself referring the matter to its ethics committee for appropriate investigation.
Moreover, a business mogul was also harshly slated for using
“borrowed” clips of speeches by well-known individuals in addressing a
group of graduating students. While the tycoon's discourse was, undoubtedly, inspirational, the same elicited the question of whether the
contents thereof were the speaker's original ideas as no attribution
was made as regards the possible sources. The speech became a notorious topic for digital techies in many social networking sites.
“Kidnapping” Another's Work
While others may disagree, I would like to believe that all the
three different instances cited above somehow demonstrate the concept of “kidnapping” in various forms: the first, a physical act; the
second, a written form; and the last, a verbal one. The second and
third examples are more mental or intellectual rather than physical.
Instead of depriving another's liberty, they strip the original authors
the due credit for their creative product or scholarship.
In this regard, R.A. 8293 or the “Intellectual Property Code of the
Philippines” and other intellectual property laws and treaties, conventions or agreements in which the country is a signatory protects copyrighted works and thus, entitles original authors the right to seek
compensation and damages for possible infringement. When applied
to writings, plagiarism is committed when a person appropriates the
work of the original author as one’s own without proper attribution.
Debates, however, continue as to whether plagiarism covers writings
of judges and justices, thus, the term “judicial plagiarism”.
* Citations omitted due to lack of space.
But what exactly is plagiarism? How is it committed? Does
the term apply to judicial writings? Are judges and justices free to
copy from law articles, journals, books, treatises and other works
without citing their sources? Does plagiarism conflict with the
duty of judges and justices to settle actual controversies by way
of judicial decisions as provided in Article VIII, Sections 1 and 14
of the 1987 Philippine Constitution? Can judges or justices be
sanctioned on the pretext of plagiarism? Will it erode the public's
trust and confidence in the judiciary? With this article, the author
does not represent herself as an expert in judicial opinion writing but
only fervently hopes to educate the readers on the topic of “judicial
plagiarism” and other matters germane thereto.
The Concept of Plagiarism
Like any other word foreign to the ear, we first dissect the etymology and meaning of plagiarism. The term “plagiarism” comes from the
Latin word “plagiarius,” meaning a kidnapper. The first known use
of the term dates back to the first century A.D. when the poet Martial
reportedly employed the term to criticize a fellow poet who used Martial’s poetry as if it were his own.*
In their paper Plagiarism and Legal Scholarship in the Age of Information
Sharing: The Need for Intellectual Honesty, authors C.M. Bast and L. B.
Samuels found out that “while there is a general agreement as to what
is meant by plagiarism, there is no standard definition of the term” but
“most share the concept that plagiarists misappropriate another’s
words as their own without acknowledging the contribution or
source.”*
In their study, Bast and Samuels limited the definition of plagiarism to that of the Legal Writing Institute (LWI), an organization of
professors who teach legal writing at law schools, author Judge Richard
A. Posner, student commentator Laurie Sterns and the Harvard University probably because of the lack of standard definition of the term.
According to them, the LWI defines plagiarism as “[t]aking the
literary property of another, passing it off as one’s own without proper attribution,
and reaping from its use any benefit from an academic institution.” They stressed
that the definition includes both unintentional and intentional plagiarism; however, because it is restricted to “literary property,” it does not
encompass the use of another’s spoken words or ideas.*
In contrast, Judge Posner defines plagiarism as “non-consensual
fraudulent copying” wherein “the plagiarist [misrepresents] himself as the
original author, thereby conferring upon himself an undeserved benefit.”* Bast and Samuels believe that “Posner’s definition is much more
restrictive in that “fraudulent” conduct requires intent to deceive or at
least recklessness by the plagiarist and would not include inadvertent or
innocent instances of copying.”* In short, plagiarism, in Posner’s case,
is limited “to the use of passages from an author without the author’s
consent.”*
On one hand, plagiarism, according to Stearns, is committed by
“intentionally taking the literary property of another without attribution and
passing it off as one’s own, having failed to add anything of value to the copied
material and having reaped from its use an unearned benefit.”* “Seemingly,
this definition would permit reuse without attribution if the new
writer made some kind of change that adds value.”* As commented,
however, by Bast and Samuels, the problem with this definition is
who decides what change adds value and why does it obviate the
need for attribution.
The two authors also cite the definition of plagiarism by Harvard University “as passing off a source’s information, ideas, or words as your
own by omitting to acknowledge that source – an act of lying, cheating, and stealing.”* Accordingly, this “[d]efinition is much more basic and encompassing, as it omits any requirement of receiving a benefit. Further, it
covers “words,” “information,” and “ideas” that might not be included under the narrower “literary property” concept used by LWI
and Stearns.”*
Additionally, author J.S. Dursht defines plagiarism as “the intentional appropriation of the creative product or scholarship of another without
attribution.”*
Finally, Black refers to the term as “the act of appropriating the literary compositions of another, or parts of passages of his writings, or the ideas or
language of the same, and passing them off as the product of one’s own mind.”*
He, however, clarifies that if the material is protected by copyright,
such act may constitute an offense of copyright infringement.* Otherwise stated, where the literary composition or writing appropriated
as one’s own is copyrighted, the act committed is infringement of
copyright but if it is not copyrighted, the act is simply plagiarism.
Black also explains that “[t]o be liable for plagiarism, it is not necessary to exactly duplicate another’s literary work, it being sufficient if
unfair use of such work is made by lifting of substantial portion
thereof, but even an exact counterpart of another’s work does not
constitute plagiarism if such counterpart was arrived at independently.”*
Plagiarism vs. Copyright Infringement
Plagiarism and copyright infringement are two closely-related
terms in that the difference between them lies in whether the material
appropriated enjoys the mantle of protection conferred upon registration of copyright. As stated by Bast and Samuels, “[p]lagiarism
and copyright infringement are not coextensive, though the same
copying can potentially give rise to both claims. As previously discussed, plagiarism extends to the use of another’s words without
attribution, and even can extend to the use of another’s information
and ideas. While plagiarism is certainly an ethics violation, it
may or may not give rise to a criminal or civil action under the
copyright law. Copyright infringement is a legal wrong based
on the theory that an author has a property interest in the authored text. The copyright statute provides the author a legal remedy
against one who has infringed his rights. However, copyright protection does not extend to facts or ideas, nor, as more fully explained
below, does it protect a document in the public domain.”*
Moreover, in an article titled “Plagiarism and copyright”, a columnist distinguished plagiarism from copyright violation as follows:
First, copyright lasts only until 50* [now, 70] years
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after the author’s death; plagiarism has no such time limits.
Second, copyright violation is primarily a legal offense; plagiarism is primarily a moral offense. Third, as the Intellectual
Property Association of the Philippines [IPAP] puts it, “the
fundamental principle of copyright law is that a copyright
protects the expression of an idea rather than the idea itself.”
Plagiarism refers not only to the expression of an idea, but to
the idea itself.*
Additionally, copyright is governed by R.A. 8293, Section 4(a) of
which enumerates “copyright and related rights” as part of the term
“intellectual property rights”. The said law, however, does not define
what “copyright” is. The World Intellectual Property Organization,
however, proposed the definition of the term by making explicit the
following elements: (a) Copyright has to do with the rights of intellectual creators, particularly those usually, though not exclusively, connected with mass communication; and (b) It is that system of legal
protection an author enjoys of the form of expression of ideas.* Instead, R.A. 8293 defines “copyright” by way of enumeration categorized mainly as literary and artistic works and derivative works.* This
type of definition only illustrates how broad the term is and how difficult it is to legislate a definitive, exclusive or even standard meaning of
the term.
Doctrines and Principles in Case Decisions
Obviously, judges and justices resort to the written form of informing litigants as to how a case or matter presented before them are
resolved or decided upon. This is not only for evidentiary purposes.
More importantly, it allows litigants, lawyers and the public the opportunity to thoroughly review and scrutinize decisions if they are in accordance with law. The public has to be aware and be informed of the
contents of these judicial decisions because, when they attain finality,
they are integrated into our legal system and become part of the law of
the land. Therefore, as regards any right, obligation or controversy
similarly situated with a decided case, judges and justices are mandated
to resolve them based on precedent following the doctrine of stare
decisis et quieta non movere, a Latin phrase meaning “stand by the
decisions and disturb not what is settled.”*
Section 1, Article VIII of our Constitution provides that it shall be
the duty of the judiciary “to settle actual controversies, involving rights which are
legally demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack of jurisdiction on the part of any
branch or instrumentality of the Government.” On one hand, section 14 of the
same Article prescribes how members of the judiciary should write
their decisions, thus: “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and law on which it is based.” Thus,
judicial decisions should be in writing.
The duty of settling actual controversies involves the task of interpreting the Constitutional provision or law applicable thereto. As correctly observed by a newspaper columnist, our Constitution itself, supposedly the supreme law of the land, is not even original.* The same
can be said of our statutes. The irony of it, he says, is that no proper
attribution was made as regards the source of the copied provisions
and yet we do not call our Senators and Representatives “plagiarists”.
Judicial Plagiarism/p.6
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When a judge or justice writes a decision and, in order to elucidate or
emphasize some points, copies passages or texts from other decisions
or writings, should the magistrate be branded as a “plagiarist”?
The situation of the magistrate in the case involving comfort
women during the Second World War presents a novel issue relative to
this. While everyone is guaranteed the freedom to express an opinion
on a particular matter, that situation is different since it is already
pending before the Supreme Court. The sub judice rule restrains any
individual, more so an incumbent member of the judiciary, to discuss
the matter in public. “Sub judice“ is a Latin phrase which means
that when a legal matter or controversy has come under the jurisdiction of a court, nobody, including the press and other media should
interfere by publication or public clamor with the court's proper handling of the proceeding.* While jurisprudence is replete with cases
involving copyright infringement, it is different when it comes to
plagiarism. Usually, when an author’s copyrighted work is copied
without his consent, such author is provided ample remedy under
our Civil Code, R.A. 8293 and other related laws. The remedies available to an author range from the issuance of a restraining order, claim
for damages, delivery of certain documents or materials for impoundment or destruction, as well as imprisonment and fine.*
Under R.A. 8293, however, not all copying of copyrighted materials are prohibited. An example of which is the “fair use” doctrine.
In his book, Fr. Aquino defines “fair use” as “a privilege in others
than the owner of the copyright to use the copyrighted material in a
reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright.”* He adds that “[i]t is then
no[t] correct to say that the only legitimate use of a copyrighted work
is authorized use, for fair use is not per se authorized use (in the
sense that authority has been conceded by the copying owner), but is
nevertheless lawful use.”* Citing a case, Aquino explains that the
doctrine of fair use is meant to balance the monopolies enjoyed by
the copyright owner with interests of the public and of society.*
Plagiarism in Judicial Writings?
In the case of judges and justices, judicial decisions are written
precisely to settle actual controversies. These writings are not made
for literary or artistic purposes. They are supposed to serve as guidelines for future decisions not only for the consumption and benefit of
the members of the judiciary but of litigants and their lawyers as well.
Indeed, judicial writings are in a class of their own and should not be
compared to literary or artistic writings. This should not, however, be
cited to justify abuse on the part of judges and justices in copying an
entire material or even portions thereof without making the proper
attribution.
On this point, the issue of judicial plagiarism arises. “Judicial
plagiarism” is the copying of words or ideas first written down by
another judge, advocate, legal writer or commentator without giving
credit to the originator of that work.* It arises when judges author
opinions that employ materials from copyrighted sources such as law
journals or books, but neglect to give credit to the author. In opinion
writing – a form of writing in which use and citation to authority is
customary – the offense of plagiarism lies simply in neglecting to
identify the source.*
As opined by J. J. George, “[j]udicial writings are not considered
original literary works; they are written to satisfy the adjudicative process required of judicial officers in resolving particular cases. They are
not written for public consumption, in the traditional sense, as are
other writings.”* In his handbook, George wrote:
Are judges free to copy from law review articles, briefs,
legal periodicals, treatises or other literary works without
giving attribution to the original author? If one answers this
question [in] the affirmative[,] the conclusion to be drawn
here is that the judge treats the copied works as his own.
While the judge may inadvertently do this, still it gives the
appearance that he is intentionally claiming the copied work
as his own. If one answers this question in the negative[,] the
conclusion to be drawn is that the judge must give attribution to the original author. Because the purpose of the
judge's writing is to dispose of the case rather than produce
an original literary work, the subtleties of literary writing are
not scrupulously observed.
If it is assumed that a judge can commit plagiarism in a
judicial writing, at what point does the writing judge overstep what is acceptable copying and commit plagiarism? If it
is assumed that it is not possible for a judge to commit plagiarism[,] he has no legal obligation to recognize the creator
of the copied work.*
Indeed, “[t]here is no need for judicial writing to be original. A
judge’s job is to decide cases beyond on the most compelling arguments in light of statutes and case precedent, and to explain the rationale underlying the decision in a clearly written opinion. The opinions
usually follow precedent or, if they do not, explain departures in light
of precedent, orienting their decision-making and writing towards past
work. The judge is not expected to produce original scholarship.”*
Clearly, “the judicial borrowing of another’s writing without identifying the source of the writing, a customary practice, is currently a gray
area in legal scholarship. Perhaps there is room for judicial reeducation on this practice. Otherwise, judges risk being accused of
judicial plagiarism.”*
Responsibility of Magistrates
Judges and justices are presumed to be fair, independent and
competent in the performance of their regular functions, writing decisions included. They are covered by a rule of conduct, particularly
A.M. No. 03-05-01-SC.* Judges and justices must be cautious of using
copyrighted sources, including case headnotes, which are not binding
authority and should not be cited.* Although there is doubt as to its
illegality, the neglect or recklessness of judges and justices in copying
these sources may erode public confidence in the judiciary. Section 8,
Canon 1 of the New Code of Judicial Conduct for the Philippine Judiciary
holds that “[j]udges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary,
which is fundamental to the maintenance of judicial independence.”
Whether a source is copyrighted or not, whenever the same is copied
to form part of a judicial decision, a judge or justice is ethically bound
to make the proper attribution due the original author. Section 1,
Judicial Plagiarism/p.26
The procedure for change of name is governed by Rule 103 of
the Rules of Court while that for cancellation or correction of entries
in the civil registry, by Rule 108 of the same Rules.
To answer the clamor of many to make the proceeding for correction of mere clerical or typographical errors in the entries in the
civil register, simple and less expensive, our law-making body enacted
Republic Act 9048 entitled as an Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and / or Change of First Name or
Nickname in the Civil Register Without Need of a Judicial Order. It
took effect on April 22, 2001.
The most salient feature of the said law is embodied in Section 1
thereof which states, viz,
“Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname -No entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first
name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules and regulations.”
According to Republic Act 9048, the first name may be changed
and clerical or typographical errors in the entries in the civil register
may be corrected by mere administrative proceeding. The petitioner
need not file a petition in court for the purpose unless the petition is
denied by the concerned local civil registrar.
Section 7 thereof provides, thus –
“Duties and powers of the Civil Registrar General – The
civil registrar general shall, within ten (10) working days from
receipt of the decision granting a petition, exercise the power
to impugn such decision by way of an objection based on the
following grounds:
The error is not clerical or typographical;
The correction of an entry or entries in the civil register
is substantial or controversial as it affects the civil status of a
person; or
The basis used in changing the first name or nickname
of a person does not fall under Section 4
xxx
The petitioner may seek reconsideration with the civil
registrar general or file the appropriate petition with the
proper court.
If the civil registrar fails to exercise his power to impugn
the decision of the city or municipal civil registrar or of the
consul general within the period prescribed herein, such decision shall become final and executory.
Where the petition is denied by the city or municipal civil
7
registrar or the consul general, the petitioner may either
appeal the decision of the civil registrar general or file the
appropriate petition with the proper court. (underscoring
supplied)
When this piece of legislation was still new, many posed this
question: May the petitioner still opt to file a petition in court rather
than avail of the administrative remedy provided thereunder? After
all, the petition may be turned down by the administrative officer
and petitioner will go to court anyway in case of such eventuality.
Stated differently, are the remedies under the Rules of Court and
Republic Act 9048 alternative that it is up to the petitioner to
choose which will be availed of by him / her.
This issue was finally laid to rest when cases calling for the
application of Republic Act 9048 were elevated to the Supreme
Court.
In the case of Silverio v. Republic (G.R No. 174689, October 22,
2007), the petitioner instituted before a regional trial court a petition for change of his first name as reflected in his record of birth,
from Rommel to Mely, after undergoing sex change. In addition, he
also prayed for the change of his sex as recorded in the civil register
from male to female.
The application for change of first name as well as for change
of sex was granted by the trial court. An appeal therefrom was
taken by the Office of the Solicitor General to the Court of Appeals where the case was disposed of in favor of the State. Silverio
challenged the reversal of the RTC's decision by the Court of Appeals with the Supreme Court. The High Court affirmed the judgment of the Court of Appeals.
In rejecting the petitioner's prayer for change of first name, the
Supreme Court, inter alia, instructively held that with the primary
jurisdiction being now lodged with the city or municipal civil registrar over petition for change of first name under Republic Act
9048, what the petitioner should have done is to file first the appropriate application with the corresponding city or municipal registry,
and not file a petition immediately and directly with a court of justice.
The same rule applies to Rule 108 on cancellation or correction of entries in the civil registry.
Before the effectivity of Republic Act 9048, mere harmless,
innocuous or clerical errors in the entries in the civil register such as
misspelling or those which are visible to the eye or obvious to understanding may be changed or corrected under Rule 108 of the
Rules of Court which entails a summary proceeding. Under the
then prevailing jurisprudence, material or substantial corrections or
those that affect one's civil status, citizenship or nationality of a
party cannot be corrected by summary action under Rule 108. And
if they are filed as petition under Rule 108, the requirement is that
RA 9048/p.35
8
Introduction
The practice of law is a noble profession --- a most treasured
aphorism, indeed. So noble that admission to the profession is given
high importance and celebrated with such extraordinary attention.
Lawyers, after all, pride themselves of having dedicated years to the
study of law and ultimately, of having survived the bar examinations.
Underlying this enviable sense of pride is a lawyer’s consciousness
that he has the requisite competence and skill to take on the demands
of the profession. Such competence and skill are hoped to be developed through formal legal education and are sought to be measured
through the bar examinations.
Education and examination, therefore, are equal conduits to a
fruitful law profession. Be that as it may, much emphasis is placed on
the latter as it is the proverbial final barrier which every bar candidate
is required to overcome.
To say, however, that the bar examinations is the concluding
measure of a candidate’s worth to be admitted to the practice of law is
far from accurate. I proceed with the supposition that the bar examination does not purport to be an all-encompassing test as, for obvious
reasons, it could not possibly measure a candidate’s skill in oral communication, investigation, negotiation, consultation with clients, legal
research and advocacy, among others.
As it is, the bar examinations can only approximate skills as identifying legal issues, applying laws to given facts and writing in a comprehensive and logical manner – skills which are nonetheless essential to
successful lawyering. Imperfect as it may be, the bar examinations
remain to be a complimentary tool in assessing a candidate’s ability to
later on perform the duties and responsibilities of a lawyer.
Bar Examinations in the Philippines
The Philippine bar examinations is the only licensure exam that is
not supervised by the Professional Regulation Commission as the administration thereof rests exclusively in the Supreme Court pursuant to
the latter’s Constitutional authority to promulgate rules concerning
pleading, practice, and procedure in all courts, the admission to the
practice of law and the Integrated Bar.*
The Philippine bar examinations is believed to be one of the most
difficult in the world considering the low national bar passing rate* of
20%-30%, the now fixed passing average of 75% with no grade lower
than 50% in any subject, the three-failure rule* and the five-strike rule.*
The Committee of Bar Examiners, the members of which are
appointed by the Supreme Court, is tasked to formulate and execute
policy directives and procedures, formulate questions for the bar exams, grade bar examination papers and release the results of the exams
thereafter.
A tedious process thus ensues from the appointment of the Committee of Bar Examiners up to the time when the official list of suc* Citations omitted due to lack of space.
cessful bar examinees is released.
First, the members of the Committee of Bar Examiners are
carefully chosen by the Supreme Court on the basis of skill, professional competence, academic record and time availability. The
Chairman, by tradition, is a Supreme Court Justice. The relationship
between and among the members and the Chairman of the Committee of Bar Examiners is at once intimate and confidential.
Once the bar examiners had been selected and qualified, the
next crucial step is the preparation of bar exam questions. The
choice of the questions that will appear at the bar examinations
involves a process in itself. The bar examiners individually formulate a set of questions which they shall then submit to the Chairman
for evaluation and approval. While the bar examiners initially prepare the questions, the Chairman has the final authority to concur,
reject or even substitute the proposed questions.
Because of the policy of strict confidentiality and for security
purposes, the bar examiners themselves are kept from knowing
which questions shall actually appear at the bar examinations. Thus,
the questions appearing at the bar exams is not only reflective of the
quality of the bar examiners, but likewise, the competency and industry of the Chairman.
Third, after every examination for each bar subject, the questions are given to the UP Law Center and to the law school deans,
professors, lecturers and reviewers for their suggested answers.
From a variety of equally plausible answers, the best answer is then
chosen to serve as the guide in the correction of the exam papers.
Fourth, the bar examiners proceed with the laborious task of
manually checking the exam papers. In the checking process, the
bar examiners are guided by certain milestones and are limited by
strict deadlines. To keep track of their progress, the bar examiners
are further required to submit weekly reports to the Chairman. As
in every step involved in the totality of the bar examinations, the
checking of the exam papers is held in confidence and imbued with
anonymity to prevent leakage and preferential correction.
Fifth, the grades are submitted to the Chairman for evaluation.
Although the passing percentage is said to be “fixed” at 75%, the
Supreme Court, in several bar examinations, had lowered the passing percentage in the exercise of its supervisory and regulatory function over the conduct of the bar exams.
Lastly, after due deliberation, the Office of the Bar Confidant
of the Supreme Court releases the official list of successful bar examinees.
The traditional essay-type bar exams
The bar examination covers the following bar subjects: Political
and Public International Law, Labor and Social Legislation, Civil
Law, Taxation, Mercantile Law, Criminal Law, Remedial Law and
Legal Ethics and Practical Exercises. The traditional format for the
bar exams is essay-type questions wherein bar candidates are given a
set of questions for each bar subject. The candidates are then expected to analyze the facts and apply the correct law in resolving the
issue or problem presented. Bar candidates are given four (4) hours
for the morning bar subjects and three (3) hours for the afternoon
bar subjects to take the exam. This essay-type exam has become the
traditional presentation of questions in the bar.
Traditionally, also, only one bar examiner is tasked to formulate
questions and grade the exam papers for every bar subject. Until
recently, the Supreme Court adopted a resolution* designating two
(2) examiners per bar subject. Each bar subject was divided into two
(2) parts: Part I and Part II, and each bar examiner was assigned a
specific scope from which to formulate his/her questions. The examination booklet is divided into two (2) parts, marked as Part I and
Part II, where the answers are to be written corresponding to Part I
and Part II of the questionnaire, respectively. The two (2) examiners
shall review and correct his/her respective part of the examination.
Notwithstanding the two-examiner per bar subject change in
the bar examinations, the type of questions remain to be in its traditional essay-type form.
Criticisms to the Essay-type Bar Exam
Though the bar examination continue to be largely essay-type,
with a modest sprinkling of enumeration and objective-type questions, this does not mean that the legal community and members of
the academe are content with its current format.
Much of the discontent with the essay-type of questions spring
from the difficulty, if not the impossibility, of covering all of the topics for each bar subject and to condense the same in ten (10), maybe
even less, number of questions. To cover most of the topics, bar
examiners are often constrained to ask questions dotted with subquestions or to increase the number of questions and minimize the
points corresponding to each. On the other hand, bar candidates are
forced to review the long list of topics covered and then guess which
ones would appear in the exams. In these 10 or so questions, the
candidates are expected to impress the examiner with their strategy,
critical thinking and memory.
Answering essay-type questions is also time-exhaustive because
the candidates are not only expected to provide the correct answers,
but equally so, to present them in a logical and organized manner.
Reviewing and correcting the bar exam papers is similarly timeexhaustive as each bar examiner is given the herculean task of correcting some 5,000-6,000 booklets in a span of five (5) to six (6)
months.
Over and above the logistics concern is the manner by which
essay-type questions are reviewed and corrected. As earlier explained, the exam papers are manually corrected, thus the candidates’
answers are subject to the examiners’ appreciation. While every examiner has immaculately prepared a set of questions and answers,
idiosyncratic views in assessing the quality of the answers may come
into play. In other words, an examiner’s subjective interpretation,
rather than objective review, plays a significant role in the correction
of the exam papers.
Compounding this innate subjectivity is the inevitable exposure
9
of an examiner to the rigors of manual correction. An examiner may
have varying levels of attentiveness and interest to the exam paper
he/she is correcting. An examiner’s mood may thus affect, adversely
or favorably, the appreciation of a candidate’s answer. In essence, the
bar examinations carrying essay-type questions are plagued with human
inconsistencies.
The above observations are but a few of the criticisms hurled
against the essay-type of bar exams. Considering that the legal community is not prepared to abolish the bar exams altogether, reforms
thereto are continuously being introduced.
Recently, Justice Roberto A. Abad spearheaded the proposed reforms in the bar examinations to be applied for the 2011 and succeeding bar examinations. Of particular interest is the proposed multiplechoice type of questions for the bar exam, a significant departure from
the traditional essay-type of questions.
Proposed Changes
Multiple Choice Questions
Multiple-choice questions are not new in the bar examinations as
several States have adopted this test for admission to the bar. In the
Philippines, however, the 2011 bar examinations will be the first to
include a significant number of multiple-choice questions.
Multiple-choice questions have several advantages. Given its format, a multiple-choice type of exam increases the scope of topics for
each bar subject. The exam may cover a broader base for each bar
subject as the number of multiple-choice questions may simply be increased to include more topics.
Despite the increase in the number of questions, a multiple-choice
exam is still easier to correct compared to essay-type questions. Instead of correcting the exam papers manually, a scanning machine will
be used thereby reducing the subjectivity and tediousness of correcting
essay-type questions.
However, more important than the above observations is the feasibility of using multiple-choice questions to measure an examinee’s
knowledge of the law and his ability to recall the same, his understanding of the law and his analysis of legal problems.*
According to Justice Abad, a multiple-choice question can measure three (3) competencies: (1) knowledge and recall, (2) understanding and (3) analysis and solution.
To be sure, a multiple-choice question, given its straightforward
presentation, can measure an examinee’s knowledge of the law and
his/her memory. A multiple-choice question can elicit from the examinee his/her knowledge on a very specific law or legal principle by simply asking “what”-type of questions.
To measure understanding, on the other hand, the presentation of
a multiple-choice question should be more creative and less straightforward to allow the examinee to relate a simple set of facts to the applicable law or legal principle.
To measure a higher level of critical thinking, multiple-choice
questions may also be used but this time, the question is actually a
problem requiring analysis and a proposed solution. In this sense, a
multiple-choice question is a mini-essay type question only that the
examinee is made to choose the correct answer rather than articulate
Reforms in 2011 Bar Exams/p.10
10
his/her own.
Multiple-choice questions versus Essay-type questions
Admittedly, a well-structured multiple-choice question can
measure not only an examinee’s knowledge of the law but his/her
analytical thinking. However, to be able to measure a candidate’s
knowledge and analysis, it is imperative that the examiner knows,
foremost, how to prepare an effective multiple-choice question.
With the proposed change, the examiner’s responsibility to formulate multiple- choice questions with the objective of measuring
knowledge of the law and analytical skills becomes more pronounced. The multiple-choice questions must have technical quality
to be effective.
Preparing the multiple-choice questions is perhaps the easier
part. If an examiner had successfully prepared his/her questions, the
focus now shifts to the examinee and how he/she will answer the
question.
Unlike an essay-type question, multiple-choice questions would
necessarily limit the answer to three (3) or four (4) options with only
one (1) correct choice. As a necessary consequence of such limited
choice of answers, an examinee’s strategy and approach to the problem is likewise limited. A multiple-choice question leaves no room
for creativity in the formulation and presentation of the answer as
the examinee is merely tasked to select a choice which appears to be
the most appropriate resolution for the problem.
Also, a multiple-choice question does not provide for alternatives as there is, in every case, only one correct answer. This might
be very appealing for the examiners as there can be no difficulty in
correcting and no allowance for prejudice, but may be constraining
for the examinees as there can be no “ifs” and “buts” in their answers. The examinees are not given the chance to qualify their answers which, if allowed, may yield an equally plausible solution to the
problem thus presented.
Likewise, a multiple-choice question cannot measure an examinee’s communication skills. In contrast, essay-type questions give an
examinee wide latitude to make a balanced analysis of a problem and
to translate the same into a well-composed answer.
Thus, a multiple-choice question, by its nature, can only measure
an examinee’s knowledge of the law but cannot predict an examinee’s
effectiveness as a future lawyer. Rarely will a lawyer encounter a multiple-choice problem in practice as job-related skills such as effective
arguing and writing are considered more paramount.
Realizing that a multiple-choice type of bar examination is not
an all-encompassing measure of a candidate’s fitness to be admitted
to law practice, the proposed reform for the 2011 bar examinations
did not do away with the essay-type questions.
In addition to the multiple-choice questions, the bar examination will continue to give essay-type questions to the examinees to
measure the latter’s lawyering skills with emphasis on the ability to
synthesize relevant facts and to construct arguments. However,
unlike the traditional essay type questions, an examinee’s answer will
not be given credit for a technically right or wrong answer but for
the quality of the examinee’s legal advocacy.*
Considering that a multiple-choice question and an essay-type
of question measures different aspects (i.e., knowledge of the law and
lawyering skills) equally necessary for effective lawyering, the question
now shifts as to how the reformed bar examinations shall be prepared
and how the legal community should adjust in preparation for the
eventual implementation of the proposed changes.
Coping with the changes
One significant aspect in the preparation of the reformed bar examinations is the percentage to be allotted to the multiple-choice questions vis-á-vis the essay-type questions. Announcements had circulated
that sixty percent (60%) of the bar examination shall be allotted to
multiple choice questions, while the remaining forty percent (40%) to
essay-type questions.
The introduction of multiple-choice questions in the bar examinations is at its very early beginnings and to stress, had never been implemented in Philippine bar examinations. To allot more than fifty percent (50%) of the bar examinations to multiple-choice type of questions at its introductory stage is very risky as the effectivity thereof
remains uncertain.
Instead of appropriating considerable weight to multiple-choice
questions this early, the number thereof should be increased gradually
to allow objective evaluation. In this manner, assessment and evaluation on whether the multiple-choice questions are indeed effective in
Philippine bar examination may be made after each bar examinations.
Similarly, a gradual increase will allow a close approximation of how
the reformed bar examinations is received by the legal community,
especially by the ones having the most interest and involvement, i.e.,
law schools and law students.
Considering also that the reformed bar examinations is a mix of
multiple-choice and essay-type questions, the weight given to multiplechoice questions versus essay-type of questions should be seriously
considered. The ability to organize thoughts and to translate the same
using effective and grammatically-correct English is arguably more
important than memorization skills and guessing games in multiplechoice questions. Thus, the percentage allotted to multiple-choice
questions and essay-type of questions should be apportioned accordingly, with the latter bearing more weight.
More importantly, professors and students of law, who have the
most interest in the bar examinations, should first be convinced and
that a multiple-choice question is a better alternative to a purely essaytype bar examination.
To convince the teachers and the students, they should first be
made to understand how a good multiple choice question is prepared
and how to answer the same. If there should be any resistance to the
proposed change, the resistance may come partly from lack of information and understanding. Given the individual style and preference of
examiners, law school teachers, reviewers and students, it is necessary
that they first believe that the proposed change will bring about improvements, rather than add confusion, to the current format of the
bar examinations.
Specific Coverage
The less controversial change in the bar examinations is the outReforms in 2011 Bar Exams/p.11
11
Reforms in 2011 Bar Exams...from p. 10
Wallpaper No More...from p. 2
line-type presentation for the coverage for the bar examinations. At
present, the coverage is presented by merely enumerating the laws
included in the bar subject. In the proposed change, the topics and
sub-topics for every bar subject shall be spelled out thus eliminating
general descriptions. It is projected that through an outline-type
presentation of the bar exam coverage, “alien” or “out-of-this-world”
questions would no longer find their way into the exams.
While the coverage of the bar exams may become more detailed
when specifically outlined, the appearances of “strange questions” in
the bar exams cannot be totally eradicated. As earlier noted, the formulation, preparation and approval of the final set of bar questions is
a process on its own. So long as the bar questions are manually prepared, it will always be subject to the peculiarities of the bar examiners and the individual style and preference of the Chairman.
It is hoped, however, that the committee tasked to prepare a
proposed coverage for the 2011 bar examinations will pinpoint basic
law principles which are actually taught in law schools and which are
of use to would-be law practitioners, bearing in mind that the proposed coverage is not only an obscure list but must also serve as a
strong recommendation to the Committee of Bar Examiners to pattern their questions to the topics covered.
Conclusion
With the proposed changes to be implemented, the bar examinations in 2011 will be an experimental bar exams. As in all changes,
reforms in the bar examinations will be perceived with doubt and will
be received in uncertainty. Much of the doubt is spawned by lack of
consultation with law school deans, professors, reviewers, lecturers
and students, who were caught unguarded by the proposed changes.
The proposed changes, to stress, are still at its experimental
stage and if successful, will probably be included on an operational
basis. To cope with the proposed changes, several adjustments must
necessarily be accomplished in a short span of time. Adjustments in
a law school’s curricula should be made, giving more emphasis to
analysis (for the multiple-choice questions) and legal writing (for the
essay-type questions). The teachers’ approach in the presentation of
a subject and in the preparation of classroom examinations will also
change as the school environment will mimic what the examinees
face in actual bar examinations. Law students will also change the
way they answer questions, not only in the manner but also in strategy and speed.
Nonetheless, changes in the bar examinations are welcome because it is a part of the continuing effort towards a more accurate
measure of competency and skill of a future lawyer. Confusing
changes that only disturb rather than promote efficient bar examinations should be revisited, while changes which are well-received
should thereafter be institutionalized. But before changes are institutionalized, it should first undergo a process of experimentation,
evaluation and, eventually, acceptance.
same will feature a friendly lane for visitors, “in” and “out”
lanes for the employees, a lounge for employee visitors in the
space fronting the cashier’s, and steel doors to avoid
“moonlighting” by outsiders. The ATM and/or room-to-room
delivery of salaries will also be implemented not only for
security reasons but also for the comfort of the employees
who need no longer endure the long queue just to get their
pay. On second thought, why spoil the surprise by
enumerating the changes that are soon to come? Let’s just say
that there are many things to look forward to.
The (continuing) winds of change . . .
Back in September 15, 2008, the opening of the CA One
Stop-Processing Center brought untold positive changes in
the court. Basic public frontline functions were
consolidated and streamlined. Consequently, unnecessary
vehicle movement inside the court premises, the entry of “alien
visitors”, and violations of the no-loitering and the no-ID rules
were minimized. In a word, entry to the court’s premises
was no longer lenient. After all, 9/11 or the Luneta incident
happens only once and they must be prevented. Pro-active and
not reactive measures needed.
To facilitate easy ingress to and egress from the court, the
security group took upon itself, with PNP assistance, the
manning of traffic along U.N. and Ma. Oroso Streets, as well as
the enforcement of a “no-triple-lane-parking” policy along
Arkansas Street.
In August 2010, two bomb threat calls were received by
the court. Thankfully, the threats remained as such, hoaxes.
Nonetheless, the same saw the holding of the Bomb Threat &
Disaster Management seminar on August 19, 2010.* A fulltime PNP bomb technician was also added to the four
policemen already detailed to guard the ramparts of Ma. Orosa.
In a job that involves itself in restricting the liberty of the
people through gate control, bomb check, and bag or body
search, the duties of the security group is not an easy or
exciting task. Criticisms, therefore, did not come as a surprise.
The grumble, the eye-rolling, and the haughty laughs of some
employees, however, did not deter the members of the security
group, mindful as they are of their mandate, that is, security
work must not be trivialized. Simply stated, for the physical
security of our CA community and for the dignity-uplift of our
court premises, with the indispensable support of all, a more
professionalized security group is an imperative.
Members of the security group must therefore continue to
toil and serve with vigor, if not show patriotism to an avowed
duty. Looking at them, now smarter, snappy, and sporting
Spartan discipline, one can never be prouder. Indeed, the CA
security group have come a long way . . . a wallpaper no
more.
* P/C Inspector Selverio Dollesen, Chief, Special Project Section, Philippine Bomb Data Center; Guest Speaker for the August 19, 2010 Seminar.
- Additional information on Bomb Threat and Disaster Management is available at the Office of the Assistant Clerk of Court.
12
Mercantile Law is one of the most perplexing branches of law
that is difficult to understand because of its ramifications and all
encompassing area of coverage. Keeping ourselves abreast of the
updates and developments in this subject area is a must, especially
for Us who are in the judiciary. Monitoring this development plays a
vital and enormous role in our task of dispensing justice. Here are
some pertinent recent rulings of the Supreme Court on commercial
law:
Truth in Lending:
Financial charges are amply disclosed if stated in the promissory note. They need not be indicated in a separate disclosure document. Nonetheless, the courts have the authority to reduce penalty
charges when these are unreasonable and iniquitous. Considering
that the bank had already received over P2.7 million in interest and
that it seeks to impose the penalty charge of 3% per month or 36%
per annum on the total amount due – principal plus interest, with
interest not paid when due added to and becoming part of the principal and also bearing interest at the same rate, the Court finds as
and valid the the ruling of the Regional Trial Court in its original
decision reducing the penalty to 12% per annum. (Bank of the Philippine Islands vs. SPS. Norman and Angelina Yu and Tuanson Builders Corp.,
G.R. No. 184122, January 20, 2010)
Violation of the Director, Officer, Stockholder or Related Interest (DOSRI) Rules (DOSRI Rules) in case a bank officer
secures a loan using the name of another person/nominee/dummy:
There can be a charge for DOSRI violation in such a situation
wherein the accused bank officer did not secure a loan in his own
name, but was alleged to have used the name of another person in
order to indirectly secure a loan from the bank. The prohibition
under the DOSRI regulation is broad enough to cover various
modes of borrowing. It covers loans by a bank director or officer
which are made either: (1) directly; (2) indirectly; (3) for himself; (4)
or as the representative or agent of others. It applies even if the
director or officer is a mere guarantor, indorser or surety for someone else's loan or is in any manner an obligor for money borrowed
from the bank or loaned by it. The broad interpretation of the prohibition under the DOSRI rule is justified by the fact that it even
expressly covers loans to third parties where the third parties are
aware of the transaction (such as principals represented by the
DOSRI), and where the DOSRI's interest does not appear to be
beneficial even burdensome (such as in cases when the DOSRI acts
as a mere guarantor or surety). If the law finds it necessary to protect the bank and the banking system in such situations, it will surely
be illogical for it to exclude a case like this where the DOSRI acted
for his own benefit, using the name of an unsuspecting person. A
contrary interpretation will effectively allow a DOSRI to use dum-
mies to circumvent the requirements of the law. (Soriano vs. People of the
Philippines,G. R. No. 162336, February 1, 2010)
(Act 3135 as amended) Two-bidder rule in foreclosure sale no
longer applies:
Supreme Court Circular 7-2002 dated January 22, 2002 no longer
prescribes the requirement of at least two bidders for a valid auction
sale. The use of the word “bids” (in plural form) does not make it a
mandatory requirement to have more than one bidder for an auction
sale to be valid. A.M. No. 99-10-05-0, as amended, no longer prescribes the requirement of at least two bidders for a valid auction sale.
(Certeza et al., vs. Philippine Savings Bank, G. R. No. 190078, March 5,
2010)
Trademark:
Tradename, unlike trademark, need not be registered. Tradename
is acquired through use. Thus, the owner can sue for infringement of
tradename, despite non-registration thereof, if the same is being used
by another without the owner's consent. (Coffee Partners vs. San Francisco Coffee and Roastery, G. R. No. 169504, March 03, 2010)
Carriage of Goods by Sea Act (COGSA): liability of carrier.
It is to be noted that the Civil Code does not limit the liability of
the common carrier to a fixed amount per package. In all matters not
regulated by the Civil Code, the rights and obligations of common
carriers are governed by the Code of Commerce and special laws.
Thus, the COGSA supplements the Civil Code by establishing a provision limiting the carrier’s liability in the absence of a shipper’s declaration of a higher value in the bill of lading.
In the present case, the shipper did not declare a higher valuation
of the goods to be shipped.
In light of the foregoing, petitioner’s liability should be limited to
$500 per steel drum. In this case, as there was only one drum lost,
private respondent is entitled to receive only $500 as damages for the
loss. In addition to said amount, as aptly held by the trial court, an
interest rate of 6% per annum should also be imposed, plus 25% of the
total sum as attorney’s fees. (Unsworth Transportation International
(Phils.), Inc. vs. Court of Appeals and Pioneer Insurance and Surety Corporation, G.R. No. 166250, July 26, 2010)
Corporation sole: conversion into corporation aggregate.
A corporation may change its character as a corporation sole into
a corporation aggregate by mere amendment of its articles of incorporation without first going through the process of dissolution.
True, the Corporation Code provides no specific mechanism for
amending the articles of incorporation of a corporation sole. However, Section 109 of the Corporation Code allows the application to
religious corporations of the general provisions governing non-stock
corporations.
For non-stock corporations, the power to amend its articles of
incorporation lies in its members. The code requires two-thirds of
their votes for the approval of such an amendment. So how will this
requirement apply to a corporation sole that has technically but one
member (the head of the religious organization) who holds in his
hands its broad corporate powers over the properties, rights, and
interests of his religious organization?
Although a non-stock corporation has a personality that is distinct from those of its members who established it, its articles of
incorporation cannot be amended solely through the action of its
board of trustees. The amendment needs the concurrence of at least
two-thirds of its membership. If such approval mechanism is made
to operate in a corporation sole, its one member in whom all the
powers of the corporation technically belongs, needs to get the concurrence of two-thirds of its membership. The one member, here
the General Superintendent, is but a trustee, according to Section
110 of the Corporation Code, of its membership.
There is no point to dissolving the corporation sole of one
member to enable the corporation aggregate to emerge from it.
Whether it is a non-stock corporation or a corporation sole, the
corporate being remains distinct from its members, whatever be
their number. The increase in the number of its corporate membership does not change the complexion of its corporate responsibility
to third parties. The one member, with the concurrence of twothirds of the membership of the organization for whom he acts as
trustee, can self-will the amendment. He can, with membership
concurrence, increase the technical number of the members of the
corporation from “sole” or one to the greater number authorized by
its amended articles. (Iglesia Evangelica Metodista En Las Islas Filipinas
(IEMELIF), Inc., et al. vs. Bishop Nathanael Lazaro, et al., G.R. No.
184088, July 6, 2010)
Crossed check: liability of bank for lack of indorsement.
Respondent bank was negligent in permitting the deposit and
encashment of the crossed checks without the proper indorsement.
An indorsement is necessary for the proper negotiation of checks
specially if the payee named therein or holder thereof is not the one
depositing or encashing it. Knowing fully well that the subject
checks were crossed, that the payee was not the holder and that the
checks contained no indorsement, respondent bank should have
taken reasonable steps in order to determine the validity of the representations made by Chua. Respondent bank was amiss in its duty
as an agent of the payee. Prudence dictates that respondent bank
should not have merely relied on the assurances given by Chua.
Negligence was committed by respondent bank in accepting
for deposit the crossed checks without indorsement and in not verifying the authenticity of the negotiation of the checks. The law imposes a duty of extraordinary diligence on the collecting bank to
scrutinize checks deposited with it, for the purpose of determining
their genuineness and regularity. As a business affected with public
interest and because of the nature of its functions, the banks are
under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of the relationship. The fact that this arrangement had been practiced for three
years without Mr. Go/Hope Pharmacy raising any objection does
13
not detract from the duty of the bank to exercise extraordinary diligence. Thus, the Decision of the RTC, as affirmed by the CA, holding
respondent bank liable for moral damages is sufficient to remind it of
its responsibility to exercise extraordinary diligence in the course of its
business which is imbued with public interest. (Vicente Go vs. Metropolitan Bank and Trust Co., G.R. No. 168842, August 11, 2010)
Manager's check made payable to cash:
Where a manager's check, made payable to “cash” and appearing
regular on its face, was presented to another bank that immediately
honors it – no fault may be attributed to such bank in relying upon
the integrity of the check, even payment thereon was later ordered
stopped by the drawer bank on the ground that the one who encashed the check was actually not the intended payee. (Security Bank
and Trust Co. vs. Rizal Commercial Banking Corp., 577 SCRA 407)
Death of stockholder does not ipso facto make his heirs stockholder of the corporation:
Upon the death of a shareholder, the heirs do not automatically
become stockholders of the corporation and acquire the rights and
privileges of the deceased as shareholder of the corporation. The
stocks must be distributed first to the heirs in estate proceedings, and
the transfer of the stocks be recorded in the books of the corporation. During such interim period, the heir stand as the equitable owners of the stocks. Even if the heir presents sufficient evidence to establish that he is the son of the deceased stockholder, he would still
not be allowed to inspect respondent's books, receive dividends or
vote the shares, absent any showing in its transfer book that the
shares owned by the deceased stockholder were transferred to him.
(Puno vs. Puno Enterprises, G.R. No. 177066, Sept. 11, 2009)
Foreclosure:
Subsequent attaching creditor of a personal property subject of
chattel mortgage is not entitled to a ten day notice prior to the sale.
He is only entitled to equity of redemption, that is, the right to redeem the property before the holding of the sale. (RCBC vs. Royal
Cargo Corp., G.R. No. 179756, October 2, 2009)
Another significant development in Mercantile Law is the enactment of Republic Act No. 10142, otherwise known as "Financial
Rehabilitation and Insolvency Act (FRIA) of 2010", which lapsed
into law on July 18, 2010. The FRIA expressly repealed the Insolvency Law (Act No. 1956) as amended, and impliedly repealed, to the
extent that they are inconsistent with the provisions of the Act, all
other laws, orders, rules and regulations.
This breakthrough in legislation makes available three modes of
rehabilitation: court-supervised rehabilitation, pre-negotiated rehabilitation, and out of court or informal restructuring agreements or rehabilitation plans. The FRIA is significant because it covers the rehabilitation of sole proprietorships, partnerships and corporations, provides the legal basis for our procedural rules on corporate rehabilitation (the latest of which is A.M. No. 00-8-10-SC, promulgated by the
Supreme Court en banc on December 2, 2009, and took effect on
January 16, 2009), and consolidates the laws on insolvency and rehabilitation.
14
Hers, Justice Myra V. Garcia-Fernandez, is a
life that reflects the continuous pursuit of excellence.
It was her school teachers who first saw in
her the promise of prominence and distinction.
The young Myra graduated as Salutatorian in elementary and
Valedictorian in high school.
These accomplishments
proved to be not mere streaks of luck, for in later years, on a
much bigger ground, she again graduated with honors. The
University of Santo Tomas bore witness as she received her diplomas for her degrees in Bachelor of Arts, Philosophy and Bachelor of Laws, both as a cum laude. This was not to be the zenith
of her academic success. In 1987, she hurdled yet another
feat, i.e. passing the Bar on the first examination.
True to the promise of her academic achievements, she
rose to become a prominent bank lawyer, legal assistant, professor, Judge and Associate Justice of the Court of Appeals.
Her positive stint in the Supreme Court paved the way to her
promotion as Judge of the Metropolitan Trial Court, Branch
10, Manila in 2000. Despite her youth, she became the
Executive Judge, with thirty (30) other branches to supervise.
It was during this time when she also served as Acting Presiding Judge of two (2) more branches of MeTC Manila. Her
extra-ordinary performance caught the attention of the Judicial
Excellence Awards. In 2003, she was hailed as the Best Pre-Trial
Judge for MeTC, and in 2004, an Outstanding MeTC Judge.
She also took home the Special Award for Best Decision in a
Civil Case that same year. Many more organizations followed
suit.
Only four (4) years have passed and she received another
well-deserved promotion as Judge of the Regional Trial Court,
Branch 18, Manila. Despite being the Acting Judge of two (2)
other branches and a member of eight (8) Supreme Court
committees, she was able to maintain a low caseload in her
branch. A Judge of lesser mettle would have succumbed to the
demands of work. But our awardee is different. A prolific
decision writer and efficient Judge she is, but an industrious and active office administrator she is even more.
Above everything else though, what sets Justice Myra
apart from the others is her searing devotion to judicial reforms. She had worked hard for the refinement of the rules
on pre-trial and summary procedure. As member of the Committee on Judicial Reforms, she drafted the forms of orders,
decisions, notices, processes and writs which are being issued
by first level courts in civil and criminal cases. She was also a
member of the Technical Working group which drafted the
Rules of Procedure for Small Claims Court. She has been a
resource person for various topics, travelling around the country to educate not only her fellow judges but also the public.
She kept herself up to the task by attending training and seminars and taking up courses here and abroad.
Her most recent achievement is her promotion as Associ-
ate Justice of the Court of Appeals.
As it is in every successful woman, behind her is a very
supportive and loving family. She is married to Atty.
Teodorico P. Fernandez, a practicing lawyer and a civil leader.
They are blessed with four (4) beautiful children namely
Patricia, Katherine, Melissa and Thea.
Indeed, the list of her achievements and awards is virtually
endless. They sum up her more than two (2) decades of devoted and excellent public service. She maybe a woman of
diminutive physique but certainly her contributions to the Judiciary is nothing but grand and impressive.
Justice Myra Fernandez deserves the accolade and gratitude of the
Judiciary and the Filipino people!
* * *
Prior to his promotion to the Court of Appeals in 2010, Justice Eduardo B. Peralta, Jr.
was the Executive Judge of the Regional Trial
Court, Manila. In the course of his almost eight
year’s stint from 2002 as the Presiding Judge of Branch 17,
RTC, Manila, he was chosen as the Outstanding Judge of
RTC Manila on June 19, 2008 during the 437th Anniversary of
Araw ng Maynila. Justice Peralta, Jr. has been a consistent
nominee during the Annual Search for Judicial Excellence
from 1998, 2001, 2003 to 2008 and finalist in 2009. Before
his appointment to the Court of the Second Level, and despite his young age of 32, he was appointed in 1995 as the
Presiding Judge of the Metropolitan Trial Court, Branch 13,
Manila where he also served as the First and Second ViceExecutive Judge.
As a fresh graduate of the San Beda College of Law in
1988, Justice Peralta, Jr.’s government service commenced in
1989 as the Confidential Attorney and Court Attorney of Justice Jose A. R. Melo in the Court of Appeals and the Supreme Court from 1989 to 1995.
In addition to his fidelity to judgeship, Justice Peralta, Jr.
was the First Graduate in the masteral degree program of the
San Beda Graduate School of Law in 2005 with cum laude for
his legal treatise on Perspectives of Evidence. He also authored other law books, and pursued doctorate degree in the
University of Santo Tomas, Manila, where he garnered a flat
1.00 grade in all his academic subjects, inclusive of foreign
languages, from 2006 to 2008. Apart from his involvement
as professorial lecturer in the Angeles University School of
Law, Centro Escolar University School of Law, San Beda
College of Law, San Sebastian College of Law and Lyceum
School of Law, occasional MCLE and Bar Lecturer, and Resource Person in legal fora, he is in the process of collating his
materials for the DCL dissertation.
Justice Peralta, Jr. is a Junior Member of the 20th Division, a participant in the Sub-Committee on the Revision of
the Rules on Criminal Procedure of the Supreme Court since
2009, and is married to Atty. Caroline G. Ocampo-Peralta,
Executive Clerk of Court III of the Court of Appeals, Manila.
* * *
Justice Ramon Paul Hernando y Layugan is a native of Tuguegarao City, Cagayan.
He finished primary schooling at the Tuguegarao
East Central School in 1978 and earned his diploma in high school from St. Louis College of Tuguegarao
City in 1982. He then enrolled for college at the University of
Sto. Tomas and completed the degree of Bachelor of Arts in
English in 1986. In 1990, he gained his Bachelor of Laws degree from San Beda College of Law.
Prior to his elevation to the Court of Appeals as an Associate Justice on February 16, 2010 at the age of 43, Justice Hernando was a trial court judge for close to seven years. He was
Executive Judge of the Regional Trial Court (RTC) of San
Pablo City, Laguna from 2003 to 2006 and Presiding Judge of
the RTC, Branch 93 (Special Commercial Court) of Quezon
City from 2006 until his appointment to the appellate court.
He began service in the government in 1991 when he was
taken in by Justice Edgardo L. Paras of the Supreme Court as a
Confidential Assistant. Upon the retirement of Justice Paras in
1992, Justice Hernando transferred to the office of Supreme
Court Senior Associate Justice Florenz D. Regalado, where he
served in various capacities, from Executive Assistant, Chief
Legislative Staff Officer (when Justice Regalado was a member
of the House of Representatives Electoral Tribunal and Senate
Electoral Tribunal) and Court Attorney VI. In 1998, he became a State Prosecutor in the Department of Justice, his immediate position before joining the Bench in 2003.
Apart from government service, Justice Hernando is a
respected member of the Academe. Since 1993, he has taught
various subjects ranging from Commercial Law, Civil Law and
Remedial Law in several law schools including the Angeles
University Foundation School of Law, FEU Institute of Law,
UST Faculty of Civil Law, San Beda College of Law, San
Sebastian College of Law and Xavier University-Ateneo de
Cagayan School of Law. He was Examiner in Commercial Law
in 2009 Bar Examinations and is co-author of the book “Notes
and Cases on the Law on Transportation and Public Utilities.”
He has also been the recipient of a number of short study
grants and training courses from the University of Strasbourg
in France, National University of Singapore, World Intellectual
Property Academy in Geneva, Switzerland and Global Intellectual Property Academy in Washington, DC, USA. In 2006, he
was part of a delegation of Executive Judges from the Philippines that was sent by the Supreme Court to Sydney, Australia
upon the invitation of the Australian Government to study
management for court administrators. He is currently a member of the Supreme Court Sub-Committee on the Revision of
the Rules on Civil Procedure.
Born on August 27, 1966, Justice Hernando is fifth of six
children of the late Judge Teodoro Lasam Hernando, Sr. of
Solana, Cagayan and Priscilla Balisi Layugan of Ilagan, Isabela.
He is happily married to Atty. Cherry Chiara L. Hernando, a
fellow Bedan graduate and presently a Graft Investigation and
Prosecution Officer in the Office of the Ombudsman.
15
* * *
Associate Justice Nina G. AntonioValenzuela was born on 3 December 1963, in
Pasay City. She is the eldest of three daughters of
the late Atty. Clemente E. Antonio (of Lamitan,
Basilan), and Dr. Natividad Q. Geluz-Antonio, M.D. (of
Imus, Cavite). Her early education began at home where her
parents instilled in her traits of honesty, industry, frugality,
respect for God, and respect for others. The dictum at home
was “Be good, even when no one is looking”.
Formal education began with the Filipino and German
nuns at the St. Scholastica’s College, Manila, where she was a
consistent honor student, and a bemedalled declaimer in both
English and Filipino. Without attending 7th Grade at the St.
Scholastica’s, she took and hurdled the entrance examination
of the University of the Philippines Integrated School on
Katipunan Road, Quezon City. She describes herself as a
proud product of the Philippine public school system, having
obtained her high school diploma, her B.S. Psychology Degree, and her Law Degree, all from the University of the Philippines, Diliman, Quezon City. She finished all the academic
requirements, but lacks thesis, for a Master of Laws Degree
under the ladderized program for Judges at the San Beda College of Lawp-Philippine Judicial Academy Consortium.
After obtaining her government-subsidized education at
the U P, she deemed it apt to serve the country by devoting
her career to government service. She first worked for Associate Justice Ameurfina A. Melencio-Herrera, and later for Associate Justice Abdulwahid A. Bidin, at the Supreme Court.
Then she moved to the Court of Appeals, where she was
Court Attorney V for Associate Justice Buenaventura J. Guerrero, for over 7 years.
She entered the Judiciary when she was appointed as Presiding Judge of the Metropolitan Trial Court, Branch 30, Manila, in the year 2000. She also served as First Vice Executive
Judge of the MeTC Manila. In 2005, she was promoted as Presiding Judge of the Regional Trial Court, Branch 28, Manila.
She was also designated as First Vice Executive Judge. In 2008,
her dedication and hard work was recognized when she was
chosen “Outstanding Regional Trial Court Judge of Manila”.
On 10 March 2010, she returned to the Court of Appeals,
upon her promotion and appointment as Associate Justice.
Justice Valenzuela is also a member of the academe. She
was Instructor of Obligations and Contracts, and Income
Taxation, at the St. Scholastica’s College, College of Business
Law and Taxation. At the time of her appointment to the Appellate Court, she had been Law Professor at the Adamson
University College of Law for 8 years handling courses in legal
writing and the Moot Court classes.
Aside from being a daughter, a public servant, and a law
professor, she is also a wife to Atty. Alberto C. E. Valenzuela,
Jr., and mother to 13-year old Alberto Clemente (Toby). In
her spare time, she loves to read. One of her favorites from
childhood to present, is “Charlotte’s Web”, by E.B. White.
Her other hobbies are swimming, and playing the piano.
16
The power of eminent domain is one of the inherent powers of should be made and how much valuation should be granted to the disthe State.* As such, it need not be expressly provided for in the Con- possessed owner. National Power Corporation v. Ibrahim et al., supra, prostitution. Its existence is understood from the fact that a State exists. vides a clear and concise summation of the rule on these factors:
1. As a general rule, valuation is to be done at the time of
What the Constitution provides, however, are limitations on the exerfiling of the complaint for expropriation.
cise of eminent domain. Thus, Sec. 9, Art. III of the Constitution
2. By way exception, valuation is to be made at the time of
states that private property shall not be taken for public use without
taking
where the owner would be given undue incremental
just compensation.
advantages arising from the use to which the government deEminent domain calls for “taking” of private property and
votes the property expropriated.
“taking” is present when these elements concur:
3. And by way of exception to the exception, where the
x x x (1) the expropriator must enter a private propexpropriator
did not enter the land under warrant or color of
erty; (2) the entrance into private property must be for
legal
authority
or with intent to expropriate the same, or in
more than a momentary period; (3) the entry into the
fact, it did not bother to notify the owner and wrongly asproperty should be under warrant or color of legal authorsumed it had right over the property, valuation must be reckity; (4) the property must be devoted to a public use or
oned when the property owner discovers the intrusion and the
otherwise informally appropriated or injuriously affected;
expropriator confirms the same and starts negotiations for its
and (5) the utilization of the property for public use must
purchase but no agreement could be reached.
be in such a way to oust the owner and deprive him of all
4. Valuation is based on the fair market value of the adjabeneficial enjoyment of the property.*
cent properties. Section 5 of RA 8974 (2000) sets out the stan“Taking” may be done unilaterally* as in the case of the Compredards for determining just compensation:
hensive Agrarian Reform Law where the taking entity has the power of
SECTION 5. Standards for the Assessment of the
eminent domain originally or by delegation and its franchise authorValue of the Land Subject of Expropriation Proceedings
izes the taking of the private property in question.* Or it may be
or Negotiated Sale. — In order to facilitate the determinadone utilizing the remedy of expropriation under the Revised Rules of
tion of just compensation, the court may consider, among
Court in conjunction with such relevant statutes as RA 8974 (2000).
other well-established factors, the following relevant stanIn the former, it is the owner who initiates the action assailing the
dards:
authority to exercise eminent domain or the public purpose of the
(a) The classification and use for which the property
taking, but in most instances, only the element of just compensation
is suited;
becomes the subject of the suit.* On the other hand, in an expropria(b) The developmental costs for improving the land;
tion case, it is the expropriator who initiates the complaint and
(c) The value declared by the owners;
proves the elements of eminent domain. Of course, the general rule
(d) The current selling price of similar lands in the
is --- landowners cannot be deprived of their right over their land
vicinity;
until expropriation proceedings are instituted in court.*
(e) The reasonable disturbance compensation for
The concept of private property for purposes of eminent dothe
removal
and/or demolition of certain improvements
main encompasses both real and personal properties.* With respect
on the land and for the value of improvements thereon;
to real properties, the idea of private property extends not merely to
(f) The size, shape or location, tax declaration and
its visible surface but includes as well everything underneath and the
zonal valuation of the land;
airspace above it up to a reasonable height.* Any interference with
(g) The price of the land as manifested in the ocular
one’s real property or land though short of losing one’s title or posfindings, oral as well as documentary evidence presented;
session, such as through the creation of easement, already impacts
and
on the private property and if the owner is deprived of any beneficial
(h) Such facts and events as to enable the affected
use of any portion of it, then “taking” has occurred.*
property
owners to have sufficient funds to acquire simiThe issue of just compensation, since it remains to be the only
larly-situated
lands of approximate areas as those required
viable matter of debate between the expropriator and the private
from them by the government, and thereby rehabilitate
property owner, has had some permutations through jurisprudential
themselves as early as possible.
history. The relevant factors to be considered are when valuation
Clearly no cut-and-dried formula is provided but only guidelines
because determination of just compensation is a factual issue on which
the parties must be heard through adduced evidence. The court may
itself hear this issue directly or appoint commissioners whose decision
or resolution would guide the court’s binding judgment thereon.
Recent developments on eminent domain have expanded, however, the area of contestability between the expropriator and the private property owner. Before, only the amount of just compensation
was treated as litigable issue, since the notion of public use has been
expanded to near heights of invincibility with the huge leeway afforded the State in defining these terms. Now, jurisprudence has allowed private property owners a little more degree of intervention in
the manner by which expropriated properties are used to accomplish
their purported goals. For convenience, the starting point is pegged at
the ruling in Reyes et al. v. National Housing Authority et al., supra. There,
private properties were expropriated for the public purpose of expanding the Dasmariñas Resettlement Project to accommodate the
informal settlers who were relocated from the Metropolitan Manila.
The National Housing Authority, however, had failed to relocate them
on the expropriated lands and had not fully paid the just compensation fixed by the court. Hence, the private owners prayed for forfeiture of expropriator’s rights under the expropriation judgment. The
Supreme Court denied the relief sought, viz:
We likewise do not subscribe to petitioners’ contention
that the stated public purpose was abandoned when respondent NHA failed to occupy the expropriated lots by relocating
squatters from the Metro Manila area. The expropriation judgment declared that respondent NHA has a lawful right to take
petitioners properties “for the public use or purpose of expanding the Dasmariñas Resettlement Project.” The taking
here is absolute, without any condition, restriction or qualification. Contrary to petitioners’ submission, the ruling enunciated
in the early case of Fery vs. Municipality of Cabanatuan, is still
good and sound doctrine, viz.:
“. . . If, for example, land is expropriated for a particular
purpose, with the condition that when that purpose is ended or
abandoned the property shall return to its former owner, then,
of course, when the purpose is terminated or abandoned the
former owner reacquires the property so expropriated. . . . If,
upon the contrary, however, the decree of expropriation gives
to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator . . . .
When land has been acquired for public use in fee simple
unconditionally, either by the exercise of eminent domain or by
purchase, the former owner retains no rights in the land, and
the public use may be abandoned, or the land may be devoted
to a different use, without any impairment of the estate or title
acquired, or any reversion to the former owner.”
The ruling may be summed up, thus: if the judgment decreeing
the expropriation did not expressly stipulate any condition restricting
the public use of the expropriated property to the original purpose,
then the expropriator continues to own the expropriated property
even if the public use initially contemplated and upon which judgment
was rendered is later abandoned for some other use.
17
This ruling was subsequently qualified in a very large extent,
though not expressly overruled, in Heirs of Timoteo Moreno et al. v. Mactan-Cebu International Airport Authority, G.R. No. 156273, October 15,
2003. In that case, the National Airport Corporation, as predecessor
agency of the Mactan-Cebu International Airport Authority
(MCIAA), wanted in 1994 to acquire some parcels of land for the
proposed expansion of the Lahug Airport. To entice the landowners
to cede these properties, the State, through the MCIAA promised
them they could repurchase their lands once the Lahug Airport was
closed or its operations transferred to Mactan Airport. The lots were
eventually expropriated and new certificates of title were issued in
the name of the Republic of the Philippines and later transferred in
favor of the MCIAA. Unfortunately, by 1991, the Lahug Airport
ceased operations as the Mactan Airport was opened for incoming
and outgoing flights. The landowners begged the then President and
the MCIAA for them to exercise their purported right to repurchase.
Their pleas were rejected and so they filed an action for the reconveyance of these properties. The trial court found merit in their
claims and granted them the right to repurchase the properties at the
amount pegged as just compensation.
The Supreme Court affirmed the lower court’s ruling. It said
that while Reyes et al. v. National Housing Authority et al., supra, and its
progeny, Fery v. Municipality of Cabanatuan, remain good law, the judgment of expropriation contained unmistakable, though implied condition, that expropriation is valid only while the Lahug Airport continued its operations as an airport. According to the High Court, this
implicit condition is enforceable against the State, through the
MCIAA, as it was stated in the expropriation judgment and proved
by credible admissible evidence. Thus:
Moreover, respondent MCIAA has brought to our attention a significant and telling portion in the Decision in Civil
Case No. R-1881 validating our discernment that the expropriation by the predecessors of respondent was ordered under the running impression that Lahug Airport would continue in operation —
As for the public purpose of the expropriation
proceeding, it cannot now be doubted. Although Mactan Airport is being constructed, it does not take away
the actual usefulness and importance of the Lahug Airport: it is handling the air traffic both civilian and military. From it aircrafts fly to Mindanao and Visayas and
pass thru it on their flights to the North and Manila.
Then, no evidence was adduced to show how soon is
the Mactan Airport to be placed in operation and
whether the Lahug Airport will be closed immediately
thereafter. It is up to the other departments of the
Government to determine said matters. The Court
cannot substitute its judgment for those of the said
departments or agencies. In the absence of such showing, the Court will presume that the Lahug Airport will
continue to be in operation x x x x
While the trial court in Civil Case No. R-1881 could have
Rule on Reversion/p.18
18
simply acknowledged the presence of public purpose for the
exercise of eminent domain regardless of the survival of Lahug
Airport, the trial court in its Decision chose not to do so but
instead prefixed its finding of public purpose upon its understanding that “Lahug Airport will continue to be in operation.”
Verily, these meaningful statements in the body of the Decision warrant the conclusion that the expropriated properties
would remain to be so until it was confirmed that Lahug Airport was no longer “in operation.” This inference further implies two (2) things: (a) after the Lahug Airport ceased its undertaking as such and the expropriated lots were not being
used for any airport expansion project, the rights vis-à-vis the
expropriated Lots Nos. 916 and 920 as between the State and
their former owners, petitioners herein, must be equitably adjusted; and, (b) the foregoing unmistakable declarations in the
body of the Decision should merge with and become an intrinsic part of the fallo thereof which under the premises is clearly
inadequate since the dispositive portion is not in accord with
the findings as contained in the body thereof.
Significantly, in light of the discussion above, the admission
of petitioners during the pre-trial of Civil Case No. CEB-20015
for reconveyance and damages that respondent MCIAA was
the absolute owner of Lots Nos. 916 and 920 does not prejudice petitioners’ interests. This is as it should be not only because the admission concerns a legal conclusion fiercely debated by the parties but more so since respondent was truly the
absolute owner of the realties until it was apparent that Lahug
Airport had stopped doing business.
To sum up what we have said so far, the attendance in the
case at bar of standing admissible evidence validating the claim
of petitioners as well as the portions above-quoted of the Decision in the expropriation case volunteered no less than by respondent itself, takes this case away from the ambit of MactanCebu International Airport Authority v. Court of Appeals but within
the principles enunciated in Fery as mentioned earlier. In addition, there should be no doubt that our present reading of the
fallo of the Decision in Civil Case No. R-1881 so as to include
the statements in the body thereof afore-quoted is sanctioned
by the rule that a final and executory judgment may nonetheless be “clarified” by reference to other portions of the decision of which it forms a part x x x x
The adjustment of the rights and obligations of the expropriator
and the former owner is governed by the rules on constructive trusts.
Hence, respondent MCIAA as representative of the State is
obliged to reconvey Lots Nos. 916 and 920 to petitioners who
shall hold the same subject to existing liens thereon, i.e., leasehold right of DPWH. In return, petitioners as if they were
plaintiff-beneficiaries of a constructive trust must restore to
respondent MCIAA what they received as just compensation
for the expropriation of Lots Nos. 916 and 920 in Civil Case
No. R-1881, i.e., P7,065.00 for Lot No. 916 and P9,291.00 for
Lot No. 920 with consequential damages by way of legal interest from 16 November 1947. Petitioners must likewise pay
respondent MCIAA the necessary expenses it may have incurred in sustaining the properties and the monetary value of
its services in managing them to the extent that petitioners will
be benefited thereby. The government however may keep
whatever income or fruits it may have obtained from the parcels of land, in the same way that petitioners need not account
for the interests that the amounts they received as just compensation may have earned in the meantime. As a matter of
justice and convenience, the law considers the fruits and interests as the equivalent of each other.
Under Art. 1189 of the Civil Code, “If the thing is improved by its nature, or by time, the improvement shall inure
to the benefit of the creditor . . .,” the creditor being the person who stands to receive something as a result of the process
of restitution. Consequently, petitioners as creditors do not
have to settle as part of the process of restitution the appreciation in value of Lots Nos. 916 and 920 which is the natural
consequence of nature and time.
Petitioners need not also pay for improvements introduced
by third parties, i.e., DPWH, as the disposition of these properties is governed by existing contracts and relevant provisions
of law. As for the improvements that respondent MCIAA may
have made on Lots Nos. 916 and 920, if any, petitioners must
pay respondent their prevailing free market price in case petitioners opt to buy them and respondent decides to sell. In
other words, if petitioners do not want to appropriate such
improvements or respondent does not choose to sell them, the
improvements would have to be removed without any obligation on the part of petitioners to pay any compensation to
respondent MCIAA for whatever it may have tangibly introduced therein.
The medium of compensation for the restitution shall be
ready money or cash payable within a period of three hundred
sixty five (365) days from the date that the amount to be returned by petitioners is determined with finality, unless the
parties herein stipulate and agree upon a different scheme,
medium or schedule of payment. If after the period of three
hundred sixty five (365) days or the lapse of the compromise
scheme or schedule of payment such amount owed is not settled, the right of repurchase of petitioners and the obligation of
respondent MCIAA to reconvey Lots Nos. 916 and 920
and/or the latter's improvements as set forth herein shall be
deemed forfeited and the ownership of those parcels of land
shall vest absolutely upon respondent MCIAA.
This ruling was emphatically affirmed by the Supreme Court in its
August 9, 2005 Resolution in the same case. Its conclusion was heartrending, a rein on the State’s awesome power of eminent domain
when used to pursue obviously commercial dictates and purposes,
with special considerations for those property owners who fought
long and hard to resist the process of expropriation, viz:
x x x x We are cognizant of the incontestable fact that
some landowners immediately sold their properties upon the
assurance that they could repurchase them at the cessation of
the Lahug Airport’s operations. And, indeed, these landowners who chose to cede their properties were fortunate to have
a stipulation in their contract of sale vouching for their right
of repurchase. Meanwhile, the landowners who found it burdensomely difficult to part with their cherished lands underwent the costly expropriation proceedings which lasted for a
number of years. Inevitably, justice and equity dictates the
reconveyance of the expropriated lots to their previous owners. One must never fail to overlook the reality that the
power to condemn property is an awesome power of the
State and that to compel a citizen to forcibly surrender his
precious property to the enormous governmental power is
too much a sacrifice which deserves more consideration than
those landowners, who, from the very beginning voluntarily
relinquished their ownership.
The amount of reimbursement for the reconveyance of the expropriated properties speaks volumes too of the High Court’s desire to
even the playing field by discounting increase in the values of the lots
due to inflation or speculation.
We now come to the discussion of the amount of repurchase price. The respondent maintains that the sum to be
paid by the petitioners for Lot Nos. 916 and 920 should be
their prevailing market price, and not the expropriation price
which would be grossly unfair considering that the petitioners
were paid just compensation and the lots are now millions of
pesos in value. Our stand on the amount of repurchase price
remains unperturbed. When the State reconveys land, it
should not profit from sudden appreciations in land values.
Any increase or decrease in market value due to the proposed
improvement may not be considered in determining the market value. Thus, reconveyance to the original owner shall be
for whatever amount he was paid by the government, plus
legal interest, whether or not the consideration was based on
the land's highest and best use when the sale to the State occurred.
In another case decided by the Supreme Court involving the
MCIAA, Mactan-Cebu International Airport Authority et al. v. Lozada Sr. et
al., G.R. No. 176625, February 25, 2010, the Supreme Court did not
merely affirm in whole the ruling in Heirs of Timoteo Moreno et al., supra, it also required the State as expropriator to stand by the original
public purpose upon which the eminent domain was exercised and
the expropriation pursued. According to the Court, if the expropriator were to do otherwise, that is, devote the property to any other
purpose, the State would not only be violating the essential element
of particular public purpose in an eminent domain exercise but also
the due process right of the private property owner who was hailed
to an expropriation proceeding and who participated in such for the
specific public purpose that was bandied about in the expropriation
case. The owner’s right to be heard would have been rendered for
naught.
More particularly, with respect to the element of public
use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation
19
filed, failing which, it should file another petition for the new
purpose. If not, it is then incumbent upon the expropriator to
return the said property to its private owner, if the latter desires
to reacquire the same. Otherwise, the judgment of expropriation
suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent domain,
namely, the particular public purpose for which the property will
be devoted. Accordingly, the private property owner would be
denied due process of law, and the judgment would violate the
property owner’s right to justice, fairness, and equity.
In light of these premises, we now expressly hold that the
taking of private property, consequent to the Government’s
exercise of its power of eminent domain, is always subject to the
condition that the property be devoted to the specific public
purpose for which it was taken. Corollarily, if this particular
purpose or intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners, if they so
desire, may seek the reversion of the property, subject to the
return of the amount of just compensation received. In such a
case, the exercise of the power of eminent domain has become
improper for lack of the required factual justification.
Even without the foregoing declaration, in the instant case,
on the question of whether respondents were able to establish
the existence of an oral compromise agreement that entitled
them to repurchase Lot No. 88 should the operations of the
Lahug Airport be abandoned, we rule in the affirmative.
Mactan-Cebu International Airport Authority et al. v. Lozada Sr. et al.,
supra, affirmed also the just compensation scheme set forth in Heirs of
Timoteo Moreno et al., supra.
This development is interesting because, as stated above, a property owner is no longer limited to the confines of just compensation in
seeking recourse against the State or any of its agencies as expropriator.
The horizons of debate have been widened and may very well be the
lynchpin of subsequent challenges to the once vaunted and invincible
power of eminent domain.
The permutations of the rulings in Heirs of Timoteo Moreno et al.,
supra, and Mactan-Cebu International Airport Authority et al. v. Lozada Sr. et
al., supra, are so wide they may be used to challenge non-expropriation
related exercise of eminent domain, such as the agrarian reform program. Would the transfer of lands to agrarian reform beneficiaries be
also voided if they were subsequently sold to non-tenants or used other
than for agricultural purposes? In the arena of urban land reform,
where socialized housing is abandoned for the more lucrative commercial markets, would the initial expropriation be nullified on the charge
that the specific public purpose has been abandoned? If lands were
taken so as to build roads to ease traffic congestion, could one say that
the particular public purpose was abandoned because the road was instead used as a feeder access to a newly built mall and thus made traffic
worse? Would the new rulings have any retroactive effect so lands expropriated previously could be recovered because the original public
purpose has been changed? Would they also pertain to other means of
Rule on Reversion/p.35
20
EDITORIAL
“The judge's chair is a seat of power. NOT only do
judges have power to make binding decisions on private citizens, their rulings may also legitimate or negate the use of
power by other public officials. Judges are the custodians of
authority because their putative expertise in the law, their
presumed independence from partisan political control, and
their ritualized fact-finding procedures supposedly make their
decisions more objective than those of other officials.” (Cited
on the Topic of Instruments of Judicial Power Chapter 7, page 299,
Courts, Judges and Politics 6th edition, Walter F. Murphy, C.
Hermann Pritchett, Lee Epstein, Jack Knight)
As judges, we are bound to seek the truth and to do what
is right. The task may appear daunting. Sometimes difficult
and impossible. But as Nobel Peace Laureat Fridtjof Nansen
once said - “The difficult is what takes a little time; the impossible is what takes a little longer.”
FAVORING PERSONS WITH DISABILITIES
Personally, I would rather call them persons with special
abilities instead of persons with disabilities.
Persons with Disabilities (PWDs) will now reap the special privilege they deserve pursuant to Section 32 of RA No.
7727 as amended by RA No. 9442, otherwise known as
''Magna Carta for Disabled Persons.'' Recently, the 11th Division
of the Court of Appeals, which I am privileged to chair and
as the ponente, dismissed the claim of the Drugstores Association of the Philippines, et. al., (Petitioners) assailing the constitutionality of the 20% discount on the medicines purchased by the PWDs. The ponente, together with his division-members, Justice Gonzales-Sison and Justice Bueser
unanimously upheld the constitutionality of the said social
legislation. The Court ruled that the assailed provision was
constitutional being a legitimate exercise of police powers of
the state. It must be recalled that the tax deduction scheme
prescribed in R.A. No.9442 was previously upheld by the
Supreme Court in the case of Carlos Superdrug Corporation,
et. al. vs. DSWD, et. al.
With the resolution of the constitutional issue, the
PWDs can now enjoy the 20% discount granted to them as
a matter of right, which was previously denied to them by
most of the pharmaceutical stores. This ruling of the Court
of Appeals is of course without prejudice to an appeal that
may be filed by the Petitioners before the Supreme Court.
The decision received favorable response not only from the
beneficiaries and their respective families but from the general public. To them, it is a commitment that the judiciary is
responsive to their social needs and humane aspirations.
Verily, the enactment of laws of this nature recognizes the
worth and participation of PWDs in our society. Above all, it
is an adherence to the United Nation's advocacy of recognizing the human rights of PWDs. This also reinforces our constitutional provision upholding said rights and extending protection to the disabled person. If senior citizens and OFW's
are granted certain privileges, there is no reason to deny similar
or comparable privileges to PWD's. It was the late Senator
Robert F. Kennedy who said that - “We must recognize the
full human equality of all our people – before God, before the
law, and in the councils of government. We must do this, not
because it is economically advantageous – although it is; not
because the laws of God and man command it – although they
do command; not because people in other lands wish it so. We
must do it for the single and fundamental reason that it is the
right thing to do.”
SEPARATE BUT NOT CO-EQUAL?
The House of Representatives and the Supreme Court
appear headed on a collision course over the impeachment of
Ombudsman Merceditas Gutierrez.
Here’s the rundown of the latest developments: Two impeachment
complaints had been filed against Gutierrez: that of party-list
Bayan, led by its secretary general Renato Reyes, and the other
by Akbayan, led by former representative Riza HontiverosBaraquel. In both complaints, the Ombudsman is accused of
culpable violation of the Constitution and betrayal of public
trust. The House Committee on Justice later found these impeachment complaints to be sufficient in form and substance
paving the way for the impeachment proceedings to take its
course in the House against Gutierrez. Ombudsman Gutierrez
protested the move before the Supreme Court, via a certiorari
petition, contending that the impeachment was illegal as it
tackles 2 cases against her within a year---a violation of the 1case-a-year limit to impeaching an impeachable official. Citing
the Constitutional ban on filing more than 1 complaint against
the same official within a year, the high Court issued its now
controversial Status Quo Ante Order.
Advocates are, however, asking these questions: Is it not
that the Constitution bars 2 impeachment proceedings within 1
year and not 2 complaints? Or, even if the mere filing of an
impeachment complaint alone comes within the purview of
the constitutional provision, what implication could be inferred from the House Committee on Justice Chair’s own declaration that these 2 impeachment complaints against
Gutierrez were referred to the Committee on Justice at exactly
the same time? In the 2003 impeachment case against CJ Davide,
no less than the SC ruled that impeachment proceedings will
only commence upon referral of the complaint to the Committee on Justice. With these 2 complaints having been referred at exactly the same time, should'nt they be treated as 1
or, if not, can 1 complaint be accepted and the other complaint rejected?
More importantly, is the action of the House Committee
finding these complaints sufficient in form and substance
already ripe for judicial adjudication? Of course there’s no
gainsaying that the SC’s judicial power includes the duty of
the courts of justice “to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of
the Government”. But, does this include reviewing the acts
or proceedings of the justice committee at this early stage
although their actions are still subject to the approval of the
plenary? If so, what would be its effect on the House’s constitutionally vested discretion and exclusive power to initiate
complaints for impeachment? And, while the case is pending
before the SC, what happens to the mandate of the House
Committee on Justice under Article 11, Section 3(2) of the
Constitution that commands it to submit its report on the
impeachment complaint to the plenary within 60 days from
its referral to the Committee? Furthermore, considering that
no deliberation or determination has been made by congress
relating to the guilt or innocence of Ombudsman Gutierrez,
is it already proper for the SC to intrude to protect perceived
constitutional rights or interests which may not have yet
arisen?
While the ultimate issue as to which of these 2 branches
of our Government will reign supreme on these particular
issues, the saga as to the possibility of future conflict between
them seem to loom over other matters as well.
Before the 1987 Constitution, the legislature and the
Court used to have a power-sharing scheme in the enactment
of judicial rules. Thus, while the SC had the “power to promulgate rules concerning pleadings, practice and procedure in
all courts, and the admission to the practice of law,” the concurrent power “to repeal, alter or supplement” the same was
vested in the Legislature. Nonetheless, with the advent of the
1987 Constitution, the said power-sharing scheme was removed, giving to the SC the exclusive prerogative to promulgate “judicial rules” without the subsidiary or corrective
power of the Congress. What is more, the SC was given the
power “to promulgate rules concerning the protection and
enforcement of constitutional rights” as well as “to disapprove rules of procedure of special courts and quasi-judicial
bodies”.
Where does this leave the Congress then? Is it now precluded from enacting laws that concern the protection and
enforcement of constitutional rights? Definitely not. Evidently, the SC can now indulge into the domain of judicial
21
legislation through its ponencias, which the Constitution itself
mandates “to form part of the law of the land,” and even
through active promulgation of rules concerning rights enshrined under the Constitution and its protections, the same is
not lodged on it exclusively. There is nothing, however, in the
Constitution that expressly prohibits the Congress from doing
the same, or to put it bluntly, from coming up with laws that
may be in conflict with what the SC had enacted. Should that
happen, which shall prevail? By then, we should already be
able to draw the line separating these two co-equal branches of
government.
After all, when Congress and the Executive Department
thru the DBM persist in diluting the share of the judiciary in
the national budget, they are in fact crossing the line of the
judiciary's fiscal autonomy and independence. Correlatively,
when the judiciary intrudes into matters which are intrinsically
political in nature, it is also in fact crossing the line into judicial
adventurism. Both branches of government are driven by a
common desire to uphold the Constitution. Although their
approach and perspective as to the means of achieving that
goal may differ.
Commenting on the extent of judicial intervention, former
attorney general of the United States Edwin Meese III (under
the administration of President Ronald Reagan) once declared
that - “The American people will never be able to regain democratic self government – and thus shape public policy –
until we curb activist judges.”
Thomas Jefferson, in his letter to Edward Livingston in
1825, reacted prophetically to the decision in Marbury vs.
Madison on the pitfalls of judicial review saying that - “This
member of the government was at first considered as the most
harmless and helpless of all its organs. But it has proved that
the power of declaring what the law is...... by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
Then again, the threshold question that confronts us in the
judiciary is this – In order to maintain this eshrined “separate
but co-equal” relationship with the two other branches of government, do we temper it with judicial restraint or invigorate it
with judicial activism?
REDRESSING GRIEVANCES AND SETTLING DISPUTES
In this country of about 100 million people with diverse
cultural, religious, social and political views, conflicts brew just
about everywhere, anytime. We deal with conflicts in our daily
lives – be it at home, in our neighborhood, in the office, in our
interpersonal and business relations. When communication
falters and opinions clash among people, controversies become inevitable.
From the standpoint of a battered wife, a disgruntled customer, an underpaid laborer, or anyone who believes that his
rights have been trampled upon, the quest for justice, no mat-
22
ter how elusive it may be, knows no cost and respects no
boundaries.
When we speak of justice, the first thing that comes to
mind is the Court, which is the seat of the most traditional
dispute resolution process – litigation. Thus, it is not surprising that the statement, “I’ll see you in court!” has become synonymous with vengeance nay vindication among aggrieved
parties. However, while conflicts, disputes or controversies
may be unavoidable, going to court and taking legal action is
only a choice. To borrow the words of Max Lucade, a famous author, “Conflict is inevitable, but combat is optional.”
Of course, our courts exist for a reason – that is, to provide an avenue for formal judicial proceedings that allow the
full examination and determination of all the issues between
parties, with each party presenting its case before a magistrate. Courts, whenever appropriate, also provide for an appeal by a losing party to the higher court. Yet, we are all
aware that court proceedings could take years and that contending parties have to put up with the staggering costs of
litigation and lawyer's fees. And almost always, after several
years of painstaking legal battle, someone has to lose.
Thus, while litigation remains to be an option for aggrieved parties, the Philippine judicial and legislative departments have adopted other out-of-court modes for settling
disputes which entail less expenses and are less stressful in
nature. On April 2, 2004, Congress enacted the Alternative
Dispute Resolution Act, which institutionalizes the use of the
alternative dispute system as well as the establishment of the
Office for Alternative Dispute Resolution. This Act defines
“alternative dispute resolution system” as any process or procedure used to resolve a dispute or controversy, other than
by adjudication of a presiding judge of a court or an officer
of a government agency in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, minitrial or any combination thereof. The best thing about these
alternative modes of dispute resolution is that they often result in a “win-win solution”.
Yet, despite these alternative measures, our court dockets are still clogged. Judges and justices continue to be overburdened with cases which have been pending before their
sala for years. It is rather unfortunate that, nowadays, courts
are plagued by problems such as undermanned personnel
and outdated facilities, which mainly account for case backlogs.
Justice delayed is justice denied. While some victims patiently
wait for the wheels of justice to grind, it is rather alarming
that others have taken the law into their own hands. Some
people seek redress of grievances in a way they deem fit, in a
way they think justice will be served swiftly. Take the case of
former police officer Rolando Mendoza who staged a 10* Citations omitted due to lack of space.
hour hostage-taking drama at the Quirino Grandstand. His
demand to have his pending case immediately resolved by the
Ombudsman and the looming reality of his losing therein impelled him to claim the lives of at least 6 foreign tourists from
HongKong. Consequently, this earned the ire of the Hong
Kong government and has put the entire Philippines in bad
light. Even our very pious Roman Catholic bishops warned of
"civil disobedience" and even excommunication against the
present administration should President Benigno C. Aquino
III fulfill his promise to propagate artificial birth control methods. On the part of the Bureau of Internal Revenue (BIR), its
efforts to raise revenues for the government have come to the
point where it threatens tax evaders of a SHAME campaign.
BIR swears to publish the names of tax evaders, thereby exposing the latter to shame as their identities will be disclosed to
the general public. Also, our very own Supreme Court has not
taken Malacanang's threat of a budget slash sitting down. On
the face of an impending cut on the judiciary's budget for next
year, the Supreme Court warned of a possible judicial revolt
against the government. Indeed, it is about time that the judiciary is removed from this state of mendicancy.
Proponents and supporters of the RH bill (Reproductive
Health Bill) have criticized the church and have warned of a
“DAMASO” revolt. They are optimistic that with the passage
of the RH bill into law, fetuses and unwanted newly born infants will no longer be deposited at the church doorsteps, convents, airplane bins and trash cans but only unwanted/discarded condoms.
William James, an American Philosopher and Psychologist, once said that, “whenever you’re in conflict with someone, there is
one factor that can make the difference between damaging your relationship
and deepening it. That factor is attitude.” While conflicts are inevitably a part of our daily existence, the way we deal with it lies in
our hands. In the midst of all possible solutions, justice should
be sought as a means for healing, and not as an excuse to commit another mistake and perpetuate an injustice.
Nobel Peace Laureat Martin Luther King once declared “We must learn to live together as brothers, or we shall perish
together as fools.” No doubt, we must settle all disputes and
redress all grievances. We must speak out against injustice,
discrimination and all forms of unfairness. But we must be
guided at all times by our adherence to the rule of law rather
than the rule of men.
The late Senator Robert F. Kennedy once again reminded
us that - “Men without hope, resigned to despair and oppression, do not make revolutions. It is when expectation replaces
submission, when despair is touched with the awareness of
possibility, that the forces of human desire and the passion for
justice are unloosed.”
RAISING THE BAR OF ADMISSION.*
The Supreme Court embarks on continuing efforts to reform the Bar Examinations to upgrade the quality of new law-
yers and to safeguard the high standards and integrity of the
qualifying Examinations. For the past two Bar Examinations,
the SC designated two examiners for each subject, pursuant
to Paragraph 4, Part B of Bar Matter No. 1161, or the Resolution on Reform in the Bar Examinations. Presently, Associate Justice Roberto Abad, Chairman of the 2011 Bar Examinations Committee, proposed a scheme of 60% multiple
choice questions and 40% essay for the 2011 Bar Examinations. The objective of the new experiment is to assess three
main skills of the examinees: knowledge and recall; comprehension or understanding; and analysis and application, considering that the multiple choice questions will focus on Codal provisions. Unfortunately, we expect the multiple choice
questions to be long and more difficult, not only because the
questions have precise answers but also because the codal
provisions are quite many and tricky. On the other hand,
having multiple choice questions saves time in the correction
of examination papers and, more importantly, will ensure the
correction of the papers with more objectivity and exactitude.
However, reforming the Bar Examinations is just one side of
the coin. Goethe once said - “Things which matter most must never
be at the mercy of things which matter least.” It is not enough that
we reformat the BAR Examinations. There is still one factor to contend with – the quality of education that the law student must imbibe before he takes the BAR. I am, therefore, glad that the esteemed former Chief Justice Artemio Panganiban similarly cried for
reforms in legal education, I joined him in his challenge in shifting
the focus from reforming the bar exams to upgrading instead the
quality of legal education, Reforming the curriculum of law schools
and energizing the legal education with close monitoring by the
Supreme Court and supervision by the Legal Education Board
would prove to be more relevant and effective.
In this light, I believe that law schools must provide their students
competent faculty members and adequate research/training facilities
of comparable standards nationwide. Law schools should also set
high standards in their grading system to ensure that only qualified
law students are allowed to graduate and that their graduates pass
convincingly the grueling Bar examinations. Statistically, provincial
law schools have produced less lawyers than their metro manila
counterparts because their teaching standards are comparatively (sad
to say) not competitive. Some have expressed views that most provincial law schools do not have high expectations and do not maintain high standards preventing them from producing bar passers.
Indeed, some law schools simply teach but do not prepare their
students to cope with the hardship and stringent requirements of
the Bar Examinations. In fact, most law schools failed to develop
the students' desire and capacity for continuing study and selfimprovement. Indeed, six law schools* were closed down by the Commission on Higher Education because not one of their graduates
passed the bar exams in the last 10 years.* Their graduates' performance in the Bar was miserable. There is need for the proper moni-
23
toring and supervision of law schools: to give law students equal opportunity for quality education wherever they choose to enroll.
The creation of Legal Education Board, tasked to supervise law
schools and impose sanctions on substandard law schools, among
others is laudable. Unfortunately, despite its creation in 1993, the
Board has yet to convene and perform its duties. Reports have it that
no budget has been allocated to the Board.*
I am hoping that the new administration will help support our
legal education towards its intended goal to make it – highly competent and globally competitive. It does not hurt to remind the government that it is the duty of the state to uplift the standards of legal
education and, as such, to undertake appropriate reforms in the legal
education system,* The proposed reforms are possible if we take it to
heart and be moved by a common desire for excellence.
ON A MORE SERIOUS NOTE
Halloween and Christmas are just around the Corner.
The month of November is fast approaching and the
Court of Appeals’ employees are wondering what “blessings”
are forthcoming to help tide them over the holidays. For most
of us, All Saints Day and All Souls Day are occasions to spend
with the family to nurture spiritual values and traditions. These
are days where the whole family fondly gather to reflect and
say a prayer in remembrance for our departed loved ones. Despite financial constraints, we always strive to make this a
memorable family affair. Amidst the hardship, we must learn
to trust that the good Lord will see us through and hear our
prayers and grant us his eternal providence. We are fervently in
prayers that the Holy Spirit will guide CJ Corona and PJ Reyes
to remember us in our hour of need.
What is the meaning of Christmas?
Christmas is love giving and sharing. Christmas is also
thanksgiving. We thank the Good Lord and our fellowmen for
all the blessings and the kindness they have bestowed upon us.
As St. Luke had preached - “The highest kind of giving
springs from deep within the heart.”
JOKES FOR A STRESS FREE DAY
1. The best way to make people remember you is to borrow money from them. If it is a big amount, they will
remember you the rest of your life.
2. RELIGIOUS JOKE - “There are actually only six sacraments, not seven: The sacrament of penance and the
sacrament of matrimony are the same.”
3. Someone observed that in pre-war Iraq, the women
always walked behind their husbands. But after the
war, the men started walking behind the women. A
western reporter asked an Iraqi man the reason for
this sudden change in social behaviour. Was it because
of some kind of religious conversion, or realization of
long overdue respect of women rights? The Iraqi
man's response – LANDMINES.
24
Petitions for certiorari under Rule 65 of the Rules of Court account for a staggering 70% of the cases filed before the Court of
Appeals. After all, this procedural recourse can be filed to assail not
only judgments but likewise orders and resolutions issued by any
board, tribunal or officer exercising judicial or quasi-judicial functions. With this all-encompassing coverage, this special civil action
may be filed practically at any stage of the proceedings, even during
execution.
While its scope is broad, the petition will only prosper upon
showing that: 1) the board, tribunal or officer acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and 2) there is no appeal,
or any plain, speedy, and adequate remedy in the ordinary course of
law.*
These two (2) requisites must come hand-in-hand; the absence
of the other would ultimately result in the denial of the petition. The
action is a limited form of review and is a remedy of last recourse,*
and thus, it is absolutely necessary for petitioner to allege in the petition, and adduce evidence to prove, that any other existing remedy is
not speedy or adequate.* On the other hand, a tribunal, board or
officer is said to have acted with grave abuse of discretion when it
exercised its power in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to
amount to an evasion or a virtual refusal to perform the duty enjoined or to act in contemplation of law.*
Even with the two (2) stringent requirements, compounded
further by the narrow and restrictive interpretation of “grave abuse of
discretion”, these do not, however, deter litigants and their counsels
in filing petitions for certiorari. Quite the contrary, these petitions are
being used to delay a proceeding, the rendition of judgment, or even
an execution of a judgment. For an extraordinary remedy, the filing
of petitions for certiorari increasingly becomes a “standard operating
procedure” for whatever adverse ruling, judgment, or resolution a
party or his counsel may obtain: it has evolved into an all encompassing judicial remedy which could be availed of for a minimal filing fee,
effort, and the wide latitude of time for filing.
In fact, the Supreme Court, as early as 1988, has already observed the undesirable repercussions of filing petitions for certiorari,
by cautioning the courts handling such petitions. In its Administrative Circular No. 1 dated 28 January 1988, it directed the lower courts
to promptly act on dilatory petitions:
3. Prompt Action on Dilatory Petitions to Delay Enforcement of Executory Judgments:
3.1 It has become a common practice for litigants to
file dilatory petitions for certiorari and prohibition with
prayer for a restraining order or writ of preliminary injunction in order to delay or thwart enforcement of final
an executory judgments of both the regional trial court
or of other inferior trial courts.
3.2 Where such petitions are filed, the court concerned should exercise the greatest restraint to avoid delay
in the enforcement of final and executory judgments. Attention is called to Sec. 6, Rule 65 of the Rules of Court
which provides that such petition may be given due course
only if "sufficient in form and substance." Hence, summons should not immediately be issued until the Court
finds the petition sufficient in form and substance. Only
then should the order issue requiring defendant or defendants to answer. Restraining orders or preliminary injunction should not be issued without prior notice and hearing
and showing of a clear right thereto.
A petition for certiorari is undoubtedly a nifty tool for a crafty and
seasoned lawyer; it could do more damage if the intended implementation of an assailed judgment, order or resolution could be forestalled.
And why not, when the filing of the petition within the sixty (60)-day
period could almost always be further delayed by motions for extension of time. As a consequence, the intended interruption would surely
come to fore. A petition for certiorari is one remedy that has been
thoroughly misused, abused and overused, unnecessarily burdening the
dockets of proper courts, especially the dockets of the Court of Appeals.
On 04 December 2007, the Supreme Court issued A.M. No. 07-712-SC amending Rules 41, 45, 58 and 65 of the Rules of Court. In particular, Section 4 of Rule 65 was amended, deleting the sentence, “[n]o
extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days.”*
Before said amendment, Section 4, Rule 65 of the Rules of Court
reads –
SEC. 4. When and where petition filed. – The petition shall be
filed not later than sixty (60) days from notice of the judgment
or resolution. In case a motion for reconsideration or new trial
is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it
relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by
the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, and unless otherwise provided by law or these rules,
the petition shall be filed in and cognizable only by the Court
of Appeals.
No extension of time to file the petition shall be
granted except for compelling reason and in no case ex-
ceeding 15 days. (Emphasis Ours)
This amendment, notwithstanding, courts have continued to accord
leniency to litigants in the highest interest of justice, allowing motions
for extensions of time to file petitions for certiorari. As a result, the
dockets of the courts remained unnecessarily clogged, and the disposition of cases unduly delayed.
It is no wonder that the courts regard the Decision of the Supreme Court in Laguna Metts Corporation vs. Aries C. Caalam and Geraldine Esguerra* as a welcome surprise. The Supreme Court categorically
stated therein that the amendments to Rule 65 of the Rules of Court
under A.M. No. 07-7-12-SC disallowed extensions of time to file a
petition for certiorari with the deletion of the paragraph that previously permitted such extensions. Such petitions now must be filed
strictly within sixty (60) days with no further extensions.
According to the Supreme Court, speaking through then Senior
Associate Justice Hon. Renato C. Corona, now Chief Justice of the
Supreme Court:
If the Court intended to retain the authority of the
proper courts to grant extensions under Section 4 of Rule 65,
the paragraph providing for such authority would have been
preserved. The removal of the said paragraph under the
amendment by A.M. No. 07-7-12-SC of Section 4, Rule
65 simply meant that there can no longer be any extension of the 60-day period within which to file a petition
for certiorari.
The Supreme Court became even more emphatic, short of admonishing the Court of Appeals which allowed such an extension, further
saying:
In granting the private respondents' motion for extension of time to file petition for certiorari, the Court of Appeals disregarded A.M. No. 07-7-12-SC. The action
amounted to a modification, if not outright reversal, by the
Court of Appeals of A.M. No. 07-7-12-SC. In so doing, the
Court of Appeals arrogated to itself a power it did not
possess, a power that only this Court may exercise.
And clearly, with this judicial pronouncement, if no petition for certiorari is filed within the sixty (60)-day period, the courts are now
constrained to deny the extension sought and to dismiss the petition.
The Laguna Metts case made procedural rules concerning petitions for certiorari better and more efficient, precluding the precipitate filing thereof. The patent abuse in filing dilatory petitions is now
being quelled. After all, Supreme Court ratiocinated, citing Delos Santos vs. Court of Appeals,* that sixty (60) days is sufficient time to file
the petition The 60-day period is deemed reasonable and sufficient
time for a party to mull over and to prepare a petition asserting grave abuse of discretion by a lower court. The period
was specifically set to avoid any unreasonable delay that
would violate the constitutional rights of the parties to a
speedy disposition of their case.
Inarguably, the case is one of the significant ponencias of Chief
Justice Corona.* It even addressed the perennial problem of clogged
court dockets with a single stroke of the pen.
But several months after its promulgation, the Supreme Court,
sitting en banc, rendered a Decision in Domdom vs. Sandiganbayan,
et al* touching on the same issue. Departing from the case of Laguna
25
Metts, the Supreme Court ruled therein that the deletion of the sentence, “[n]o extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days” from
Section 4, Rule 65, does not perforce to mean that motions for extension of time are absolutely prohibited. This time, the Court speaking
through its ponente, Senior Associate Justice Conchita CarpioMorales, elucidated that if the intention was to proscribe the filing of
a motion for extension to file a petition for certiorari, then the
amendment should have explicitly stated that it is prohibited –
That no mention is made in the above-quoted amended
Section 4 of Rule 65 of a motion for extension, unlike in the
previous formulation, does not make the filing of such pleading absolutely prohibited. If such were the intention, the
deleted portion could just have simply been reworded to state
that “no motion of time to file the petition shall be granted.”
Absent such a prohibition, motions for extension are
allowed, subject to the Court's sound discretion. The
present petition may thus be allowed, having been filed
within the extension sought and, at all events, given its merits.
The pronouncement in the Domdom case is succinct: the amendment
of the rule did not prohibit motions for extension of time to file petition for certiorari.
With the two (2) seemingly inconsistent rulings, the former by
the First Division and the latter, by the Supreme Court sitting en
banc, which should prevail?
There is no inconsistency between the two (2) rulings. The Domdom case involved a petition filed before the Supreme Court, while
the Laguna Metts case, a petition filed before the Court of Appeals.
It is always within the power of the Supreme Court to suspend
the rules or to except a particular case from its operation. In the
Domdom case, petition for certiorari was filed to assail Resolutions of
the Third and Fifth Divisions of the Sandiganbayan, disallowing the
consolidation of cases for estafa through falsification of documents.
The Court resolved to spare the petition from dismissal which should
have resulted as a matter of procedure, by allowing the extension of
time, and eventually ordering the consolidation, in keeping with law
and equity.
This is not the first time that the Supreme Court has brushed
aside adherence to procedure and refused to write finis to a case by the
strict application of the rules. As early as the case of Habaluyas Enterprises, Inc., et al. vs. Judge Japson, et al.*, the authority of the Supreme Court to relax or even suspend the application of the rules has
been expressly recognized. The case involved the issue on whether
the fifteen (15)-day period within which a party may file a motion for
reconsideration of a final order or ruling of the Regional Trial Court
may be extended. The Court ruled –
Hence, for the guidance of Bench and Bar, the Court restates and clarifies the rules on this point, as follows:
1.) Beginning one month after the promulgation
of this Resolution, the rule shall be strictly enforced
that no motion for extension of time to file a motion for new trial
or reconsideration may be filed with the Metropolitan or
Municipal Trial Courts, the Regional Trial Courts, and
the Intermediate Appellate Court. Such a motion
On Motions/p.26
26
On Motions...from p. 25
may be filed only in cases pending with the Supreme Court as the court of last resort, which may
in its sound discretion either grant or deny the extension requested.
The Supreme Court has elucidated the rationale behind the exercise of this power in Barnes v. Padilla* –
Let it be emphasized that the rules of procedure
should be viewed as mere tools designed to faciitate the
attainment of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflect this
principle. The power to suspend or even disregard
rules can be so pervasive and compelling as to alter
even that which this Court itself has already declared to be final x x x.
The emerging trend in the rulings of this Court is
to afford every party litigant the amplest opportunity
for the proper and just determination of his cause, free
from the constraints of technicalities. Time and again,
this Court has consistently held that rules must not be
applied rigidly so as not to override substantial justice.
The Laguna Metts ruling has not been overturned by the Domdom case. The latter appears to be the exception rather than the rule.
An extension to file petition for certiorari may be allowed in the discretion of the Supreme Court for the most compelling reason to serve
the ends of justice. In the case of Philippine National Bank vs. Court
of Appeals,* the Court, in giving due course to an appeal filed out of
time, stated:
It has been said time and again that the perfection of an
appeal within the period fixed by the rules is mandatory and
jurisdictional. But, it is always in the power of this Court to
suspend its own rules, or to except a particular case from its
operation, whenever the purposes of justice require it.
Strong compelling reasons such as serving the ends of
justice and preventing a grave miscarriage thereof warrant the suspension of the rules.
As it now stands, the Court of Appeals and the proper courts
must abide by the Laguna Metts ruling, i.e., no motion for extension of
time to file petition for certiorari should be allowed. And the Supreme
Court has clearly expressed the reason therefor –
The rationale for the amendments under A.M. No. 07-7
-12-SC is essentialy to prevent the use (or abuse) of the petition for certiorari under Rule 65 to delay a case or even defeat the ends of justice. Deleting the paragraph allowing extensions to file petition on compelling grounds did away
with the filing of such motions. As the Rule now stands,
petitions for certiorari must be filed strictly within 60
days from notice of judgment or from the order denying
a motion for reconsideration.
No error or grave abuse of discretion may be attributed to the proper
courts in complying with the precept of this case.
It is often said that cases do not pass through the portals of a
court of law by the mere mandate of technicalities. The Court's pri-
mary duty is to dispense justice. The law abhors technicalities that
impede the cause thereof.* But let it be reminded that in cases where
the rules of procedure are mandatory and jurisdictional, it is only our
Supreme Court that may suspend the operation or appreciation of
these rules* when a rigid application thereof tends to frustrate rather
than promote substantial justice*. Only the Supreme Court has the
power to except a particular case from the operation of a rule whenever purposes of justice require it.
The Laguna Metts and Domdom cases will not be the last.
Judicial Plagiarism...from p. 6
Canon 1 of said code of conduct likewise mandates judges to “exercise
[their] judicial function independently on the basis of their assessment
of the facts and in accordance with a conscientious understanding of
the law”.
Therefore, a judge “has the responsibility in an individual case to
make his own decision on the outcome of the case, to decide the various issues presented and to reason through to a conclusion. He must
express his own views on the merits, accept or reject opposing views,
resolve any conflicts that exist in relevant evidence, find facts by using
his own rendition of the facts as presented and his own perceptions of
the credibility of witnesses, and arrive at a resolution.”* In this regard,
“judges are left to their own devices pertaining to issues of judicial
draftmanship. [Judges and justices], therefore, [are] afforded considerable leeway in crafting [their] decisions according to [their] own sense of
form, style, content, and substance.”* In short, they “are relatively free
to adopt their own formats and styles in crafting their decisions, the
only caveat being the constitutional requirements that these be supported by proven facts and applicable law.”* What is important, as
noted by Justice Keyes, is for a magistrate to decide the particular cases
assigned him or her “by applying the applicable law to the actual facts
through reasoned argument, keeping within the bounds of reasonable
interpretation, in light of precedent and rules of construction.”*
Conclusion
To conclude, while a magistrate is bound by judicial ethics, the act
of incorporating someone else’s work should not hinder a ponente in
arriving at a just and fair conclusion supported by facts and law. Indeed, the role of a judicial opinion extends beyond literary or artistic advancement. It serves as a precedent, as a primer on law
and guide for future action.* If judges and justices are to be restricted by plagiarism, such that judicial writings are subjected
thereto, then, not only would it expand “judicial criticism” but
open the floodgates for opportunists, usually losing litigants, to
create instability and anarchy in the judicial system by suing
magistrates for plagiarism. Nonetheless, an attribution of the original
author of the incorporated material or passage, regardless of whether
consent to do so was obtained or not, creates no pernicious implication
on the independence, competence, or diligence of the ponente. By contrast, it is an indicia of the magistrate’s fairness, honesty, humility as well
as conscious desire to give credit due the original author – attributes
probably essential to the maintenance of the moral authority and integrity of the judiciary.
POLITICAL LAW (Election Law; Rule on Succession)
IN FINE, the Comelec did not gravely abuse its
discretion when it denied Panlaqui’s motion for
proclamation. Since Velasco’s disqualification as a candidate
had not become final before the elections, the Comelec
properly applied the rule on succession.
x x x To simplistically assume that the second placer
would have received the other votes would be to substitute
our judgment for the mind of the voter. The second placer is
just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He
could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate,
the conditions would have substantially changed. We are not
prepared to extrapolate the results under such
circumstances.
To allow the defeated and repudiated candidate to take
over the mayoralty despite his rejection by the electorate is
to disenfranchise them through no fault on their part, and to
undermine the importance and the meaning of democracy
and the right of the people to elect officials of their choice.
Theoretically, the second placer could receive just one
vote. In such a case, it would be absurd to proclaim the
totally repudiated candidate as the voters’ choice. x x x
(Mozart P. Panlaqui vs. Commission on Elections, et al.,
G.R. No. 188671, February 24, 2010.)
REMEDIAL LAW (Civil Procedure; Service and Filing
of Pleadings)
If only to underscore the mandatory nature of this
innovation to our set of adjective rules requiring personal
service whenever practicable, Section 11 of Rule 13 then
gives the court the discretion to consider a pleading or paper
as not filed if the other modes of service or filing were
resorted to and no written explanation was made as to why
personal service was not done in the first place. The exercise
of discretion must, necessarily, consider the practicability of
personal service, for Section 11 itself begins with the clause
"whenever practicable."
We thus take this opportunity to clarify that under
Section 11, Rule 13 of the 1997 Rules of Civil Procedure,
personal service and filing is the general rule, and resort to
other modes of service and filing, the exception. Henceforth,
whenever personal service or filing is practicable, in light of
the circumstances of time, place and person, personal service
or filing is mandatory. Only when personal service or filing
is not practicable may resort to other modes be had, which
must then be accompanied by a written explanation as to
27
why personal service or filing was not practicable to begin
with. In adjudging the plausibility of an explanation, a court
shall likewise consider the importance of the subject matter
of the case or the issues involved therein, and the prima
facie merit of the pleading sought to be expunged for
violation of Section 11. This Court cannot rule otherwise,
lest we allow circumvention of the innovation introduced
by the 1997 Rules in order to obviate delay in the
administration of justice.
x x x [F]or the guidance of the Bench and Bar, strictest
compliance with Section 11 of Rule 13 is mandated.
(Marcelino Domingo vs. Court of Appeals, et al., G.R. No.
169122, February 2, 2010 [Resolution].)
POLITICAL LAW (Election Law; Intra-party
Leadership Disputes)
The COMELEC’s jurisdiction over intra-party disputes
is limited. It does not have blanket authority to resolve any
and all controversies involving political parties. Political
parties are generally free to conduct their activities without
interference from the state. The COMELEC may intervene
in disputes internal to a party only when necessary to the
discharge of its constitutional functions.
The COMELEC’s jurisdiction over intra-party
leadership disputes has already been settled by the Court.
The Court ruled in Kalaw v. Commission on Elections that
the COMELEC’s powers and functions under Section 2,
Article IX-C of the Constitution, "include the
ascertainment of the identity of the political party and its
legitimate officers responsible for its acts." The Court also
declared in another case that the COMELEC’s power to
register political parties necessarily involved the
determination of the persons who must act on its behalf.
Thus, the COMELEC may resolve an intra-party leadership
dispute, in a proper case brought before it, as an incident of
its power to register political parties.
Xxxx
To conclude, the COMELEC did not gravely abuse its
discretion when it upheld Roxas’ election as LP president
but refused to rule on the validity of Atienza, et al.’s
expulsion from the party. While the question of party
leadership has implications on the COMELEC’s
performance of its functions under Section 2, Article IX-C
of the Constitution, the same cannot be said of the issue
pertaining to Atienza, et al.’s expulsion from the LP. Such
expulsion is for the moment an issue of party membership
and discipline, in which the COMELEC cannot intervene,
given the limited scope of its power over political parties.
(Jose L. Atienza, Jr., et al. vs. Commission on Elections, et
al., G.R. No. 188920, February 16, 2010.)
-Justice Marlene Gonzales-Sison
28
The shaping and re-shaping of the Constitution and the laws
are the functions of the judicial system, especially the Supreme
Court. It has been recognized that the decisions of the highest court
in the country are laws in this jurisdiction, whether it exudes with
wisdom or otherwise. There had been a running jest in legal circles,
heard also in law schools, calling some decisions by the Supreme
Court as Supreme Errors. The Supreme Court is still composed of
human beings, who are also prone to errors like the rest of us. And
like some of us, it has the ability to recognize these errors and rectify whenever it can. As in some instances, although short of admitting that it has erred, the Supreme Court has discreetly recognized
that its own decision should be reversed. There are times though
that it is not apologetic and without explanation recreates or modify
a doctrine, making two opposing interpretations, and leaving rival
parties to argue either way, both armed with contending Supreme
Court decisions.
If it is any consolation, our Supreme Court does not have a
monopoly of these deviations or inconsistencies. Even the United
States Federal Supreme Court is not immune from the cycle of
“erring” and “rectifying”. And the jests on their account are more
sardonic. A law professor in the US, which later became a judge,
had probably tickled the minds of his students for a “basic legal
myth”. The myth being that judges decide cases by applying legal
rules to the facts before them. It was attributed to him to have said
that the court's decision might turn upon what the judge had eaten
for breakfast.* It was not reported whether he was cited for contempt.
The importance, thus, of having a coherent and consistent
body of jurisprudence cannot be trivialized. Otherwise, decisions of
the highest court in our jurisdiction would look like no more than a
mood swing metamorphosed into a writing. The necessity for coherence, consistency and predictability of judicial decisions gave
birth to the principle of “stare decisis” or adherence to precedent. Its
main doctrine, as worded in our jurisprudence is that once a case
has been decided one way, any other case involving exactly the same
point at issue should be decided in the same manner.* In some decisions, the application of the principle of stare decisis is invoked when
a question of law has been earlier examined and decided, and it
should be deemed settled and closed to further argument*.
Unfortunately, having the principle of stare decisis does not guarantee that the seeming inconsistencies in the decisions of our Supreme Court would be obviated. Two areas, albeit not grand, where
the Supreme Court frequently deviates from precedents are presented here. These are the awards of moral damages and civil indemnity in criminal cases, and the interpretation of the term
“adversarial proceedings” in petition for correction of entries under
Rule 108.
Inconsistencies in Civil Indemnity
At the latter part of decisions in criminal cases, one of the
“consistent” inconsistencies can be found - the amount of civil indemnity for death awarded to the heirs of the victim. Some cases
award an amount of P75,000.00, while others, P50,000.00. There are
even cases that awarded P100,000.00.
In People vs. Victor*, a rape case, the Supreme Court first set the increase in the amount of civil indemnity from P50,000.00 to
P75,000.00 but this was meant to apply only in certain rape cases. The
Supreme Court in making this leap reasoned:
“One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. The Court
believes that, on like considerations, the jurisprudential path
on the civil aspect should follow the same direction.”
The Supreme Court thus judicially decreed further:
“Hence, starting with the case at bar, if the crime of rape
is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the
present amended law, [R.A. 8353] the indemnity for the victim shall be in the increased amount of not less than
P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuation
over time, but also an expression of the displeasure of the
Court over the incidence of heinous crimes against chastity.”
Taking cue from the said increase in the amount for the award of
civil indemnity, the Office of the Solicitor General recommended the
corresponding increase in the amount of civil indemnity in the murder case of People vs Mosquerra*. However, the Magistrates brushed it
aside and held that:
“The Solicitor General urges the increase of the civil
indemnity to Seventy-Five Thousand Pesos (P75,000.00)
purportedly in accord with our ruling in People v. Victor. Reliance thereon is misplaced. The said case applies only to convictions for rape qualified by any of the circumstances under
which the death penalty is imposable under Republic Act No.
8353. The case at bar involves a conviction for murder, for
which the amount of civil indemnity was rightfully placed at
Fifty Thousand Pesos (P50,000.00).”
Almost a year after People vs. Victor, the Supreme Court again
made a modification on the civil indemnity for rape, but limited it to
rape with homicide, wherein it was pegged at P100,000.00. This was
in the case of People vs Robles* where the Court judicially legislated the
increase as follows:
With regard to the civil indemnity, the court hereby rules
that the victim of rape with homicide should be awarded the
amount of P100,000.00. Prevailing judicial policy has authorized the mandatory award of P50,000.00 in case of death, and
P50,000.00 upon the finding of the fact of rape. Also, under
recent case law the indemnity for the victim shall be in the
increased amount of P75,000.00 if the crime of rape committed is effectively qualified by any of the circumstances under
which the death penalty is authorized by the applicable
amendatory laws:* Thus, if homicide is committed by reason
or on the occasion of the rape, indemnity in the amount of
P100,000.00 is fully justified and properly commensurate
with the seriousness of the said special complex crime.
No subsequent case was as categorical and clear as the above
cases to blaze the trail for modification or establishment of other
rules in civil indemnity and supersede the three landmark cases.
Thus, three different amounts of civil indemnity were accordingly
set: 1) P50,000.00 indemnity for death remained fixed (People vs
Mosquerra); 2) P75,000.00 for rape attendant with circumstances
which would call for the death penalty under the heinous crime law
(People vs Victor); and 3) P100,000.00, when homicide is committed
by reason or on occasion of the rape (People vs Robles).
However, a number of cases still deviate from these landmark
cases. In the 2010 case of People vs. Lalongisip*, a murder case, the
Supreme Court applied the 2009 case of People vs. Sarcia*, a rape case
and awarded P75,000.00 as civil indemnity. The justification for the
award of P75,000.00 in People vs Sarcia was properly made by the
Court, but in applying it to People vs Lalongisip, the Court strayed away
from the established doctrine. What must have led the Court to apply the Sarcia case to Lalongisip was the following portion of the discussion in Sarcia:
“The principal consideration for the award of damages,
under the ruling in People v. Salome and People v. Quiachon is the penalty provided by law or imposable for the
offense because of its heinousness, not the public penalty
actually imposed on the offender.”
People vs. Salome* and People vs. Quiachon*, however, were both
rape cases and the “heinousness” referred to in the discussion was
the circumstance where the crime of rape was considered heinous,
or that which should have warranted the penalty of death. This
means that the consideration used in the said cases for the award of
damages did not extend to all other crimes punishable by death but
only in rape punishable by death. Although Lalongisip was an en banc
decision, the most reasonable conclusion to make is that it did not
effectively modify the settled rules in civil indemnity as it did not
make any justification for the amount of the civil indemnity. It did
not therefore tackle that issue.
In the earlier case of People vs Tubongbanua*, where a lawyer was
murdered, the Supreme Court pegged the civil indemnity for the
heirs at P75,000.00, again without any justification. In People vs Jadap*,
the Supreme Court “conforming [to] recent jurisprudence” awarded
P75,000.00 for the death of the victim, citing two 2009 cases.* On the
other hand, People vs. Baluntong*, another 2010 case, awarded
P50,000.00 as civil indemnity, while in People vs. Bustamante*, the Supreme Court affirmed the award of civil indemnity by the Court Appeals in the amount of P50,000.00 which it justified as in line with
prevailing jurisprudence.
In relation with damages, the amount of moral damages in
crimes is another area where jurisprudence seem to vary. In People vs.
Victor,* the Supreme Court modified the award of the trial court,
dropped the moral damages and awarded instead a civil indemnity in
the increased amount of P75,000.00. It distinguished moral damages
from civil indemnity. The latter being actual or compensatory dam-
29
ages contemplated in our criminal law in the amount authorized by
prevailing jurisprudence, while moral damages has a different basis
and the amount depends on the discretion of the judge. This basis
more likely pertains to the Civil Code provision on Moral Damages.
In some cases, however, moral damages have been measured with
the same standard as civil indemnity and is now fixed at a specific
amount by “prevailing jurisprudence”. In People vs. Glino*, the Supreme
Court rectified the “blunder” of the Court of Appeals in giving
P100,000.00 as moral damages to the heirs of a murder victim, and
decreased it to P50,000.00 as “prevailing jurisprudence dictates”. People
vs. Hernando* did away with proof of emotional suffering for the award
of moral damages to the heirs in cases of violent death. The Supreme
Court in this case had no reference to a precedent. But it is in a 2000
case that automatic award of moral damages in cases of violent death
found its way in our jurisprudence. The Supreme Court, in People vs
Panado*, deciding through its division, stated:
On the award of moral damages, this Court is convinced
that the prosecution has amply demonstrated that the heirs
suffered mental anguish to justify this award. Current jurisprudence has set moral damages at P50,000.00. Nonetheless,
we deem it proper to rethink our policy on moral damages.
Unlike in the crime of rape, we grant moral damages in
murder or homicide only when the heirs of the victim have
alleged and proved mental suffering. However, as borne out
by human nature and experience, a violent death invariably
and necessarily brings about emotional pain and anguish on
the part of the victims' family. It is inherently human to suffer
sorrow, torment, pain and anger when a loved one becomes
the victim of a violent or brutal killing. Such violent death or
brutal killing not only steals from the family of the deceased
his precious life, deprives them forever of his love, affection
and support, but often leaves them with the gnawing feeling
that an injustice has been done to them. For this reason,
moral damages must be awarded even in the absence of any
allegation and proof of the heirs' emotional suffering. Verily,
Hilda and her son Louie Gee would forever carry the emotional wounds of the vicious killing of a husband and a father.
With or without proof, this fact can never be denied; since it
is undisputed, it must be considered proved.
In 2003, the doctrine set in Panado was strengthened in the en banc
decision of People vs Estillore* where it was cited as basis for the automatic award of moral damages.
There is in fact more consistency in the award of moral damages
of which the prevailing amount is also fixed at P50,000.00; except for
some cases such as People vs Estacio and Ang*, where the Supreme Court
kept silent on the award of moral damages amounting to more than
P50,000.00 and with its silence, the ruling of the Court of Appeals was
deemed affirmed. Also, in the case of Safeguard Security Agency Inc., &
Pajarillo vs Tangco et al.*, the Supreme Court upheld the award of P1M
as moral damages to the heirs of a woman who was shot dead by a
security guard of a bank. The original case was a separate civil action
for quasi-delict, but the Supreme Court cited People vs. Teehankee Jr.* to
justify the P1M-moral damages. In Teehankee, the Supreme Court tempered the P13M award of moral damages by the trial court to P1M to
the heirs of Maureen Hultman.
30
"For justice brings peace of conscience, while injustice causes
torment and anguish... Justice is approved, and injustice condemned, by the common agreement of good men."
Said immortal words of Dutch lawyer Hugo Grotius, known as
the father of International Law, echoed in my mind as I stepped into
the grand entrance of Haagsche Hogeschool (The Hague University)
in The Hague, Netherlands, site of this year's 74th Conference of the
International Law Association (ILA).
For five (5) days from 15 August 2010, my fellow eternal student
of law, Justice Priscilla Baltazar-Padilla and I found ourselves participating with much enthusiasm at the sessions and meetings of the
numerous ILA committees and study groups and engaging in interdisciplinary debate with the other participants from all over the globe
representing various branches of law as well as other academic disciplines. All of these, to further our knowledge of the core issues of
international law and its present day challenges and at the same to
foster and cultivate friendships with fellow law scholars and luminaries.
Indeed, what better place to hold an international conference
than the city aptly referred to as the International City of Peace and
Justice. It all began in the late 1800's with the foundation of the Conference on Private International Law and the First Hague Peace Conference. More than a century later, the Hague has been called home
for several international organizations, most notably the International
Court of Justice. Furthermore, The Hague likewise plays padrone to
the International Criminal Court, the International Criminal Tribunal
for the former Yugoslavia, the Organisation for the Prohibition of
Chemical Weapons, the Permanent Court of Arbitration and Eurojust.
Resonating the appellation of the famous city which hosts it, the
theme for this year's ILA Conference is “De Iure Humanitatis: Peace,
Justice and International Law”. The initial engagement transpired on a
chilly and rainy night of August 15 when all the delegates were heralded to the Provinciehuis (Province Hall), for the Welcome Reception hosted by no less than by the Queen’s Commissioner for Zuid
Holland (South Holland). Behind the somber mood of the reception,
it became apparent to everyone that it would be the last calm night
before a thundering storm, as the conference organizers managed to
attract more than 600 of the best and brightest of the world's jurists
and legal practitioners [including nine (9) Filipinos – myself, Justice Padilla,
Justice Elihu Ybañez, Justice Danton Bueser, Justice Rodrigo Lim Jr., QC
RTC Judge Vivencio Baclig, Parañaque RTC Judge Raul de Leon, Makati
RTC Judge Fortunito Madrona and the Secretary of ILA Philippines Branch,
Atty. Zenaida Reyes,] foreboding of a fiery exchange of ideas and opinions for the next four (4) days.
The ILA Conference then officially commenced with a formal
opening session the following morning. As the delegates enter The
Hague University, a campus entirely surrounded by water, making it a
city within a city, we were greeted by cheerful bell-like sounds of a
Draaiorgel (Dutch pipe organ) which reminded me of our own Bam-
boo Organ of Las Piñas.
We were then first welcomed by Professor Nico Schrijver, President of the Dutch Branch, and Incoming President of the ILA who
called the conference to order and after which he noted the passing
of the much-respected Chairman of the ILA, Lord Slynn of Hadley,
who had served the ILA in a most excellent way for 21 years.
Lord Slynn's successor, The Rt Hon Lord Mance, a judge of the
English Supreme Court came up next and announced that it was the
100th anniversary of The Netherlands Branch of the ILA and then
congratulated the same branch for hosting this year's conference.
Lord Mance in his closing remarks mentioned the outstanding programme prepared by the organizers and then wished everyone a successful conference.
Not to be outdone, the Dutch government sent a representative
in the person of Ernst Hirsch Ballin, the Minister of Justice of The
Netherlands. He reminded the delegates that not all nations professing to be democratic adhere to the rule of law and to the basic principles of international dimensions. Ironically these are the nations who
are fanatical and intolerant to the emancipation of human rights undermining the very principles of democracy and justice. Minister
Ballin then enjoined us, as scholars, practitioners and politicians, to
monitor these developments, understand them, oppose them and
finally, to send a clear and loud message that democracy and justice
must go hand in hand. I just hope that Minister Ballin was not thinking of the Philippines in making said remarks.
During an interlude, we were treated to a magical performance
by Vincent van Amsterdam, a famous Dutch accordion player, who
played familiar and invigorating classical compositions, prepping us
up for the challenging work ahead.
Delving into the pith of the conference, the first working session
that I attended was the General Opening Session chaired by Professor Nico Schrijver and was entitled Urgent Global Issues: the Role of International Law. On said session, it was discussed how international law
plays an important part in resolving significant issues like access to
natural resources, ongoing threat of nuclear arms, structural worldwide poverty, and manifold human rights violations among others.
The question on how international law interacts with other disciplines was also addressed as well as the need for a further
“juridification” of international order and its limits.
Thereafter, parallel sessions were simultaneously held with provocative titles such as The ICC: Court of Last Resort or a New “Gentle
Civiliser of Nations” which was chaired by Mirjam Blaak, Deputy Head
of Mission of the Uganda Embassy in Brussels; The Impact of International Legal Standards on International Commercial Arbitration which was
chaired by Lawyer Jeremy Carver and Islamic Finance and Influence of
Religion on Law chaired by Rene Smits, a Professor at the University
of Amsterdam.
Aside from the regular working sessions, the delegates were also
encouraged to attend the meetings of the 26 committees and six (6)
study groups, who were tasked to study broad and unexplored areas
of international law such as Space Law, Cultural Heritage Law, International Family Law, Sovereign Insolvency and Feminism & International Law.
It is noteworthy to point that some of committees and study groups
already have advanced reports waiting for their final approval at the
conference itself, while some are still in their development stages
waiting for inputs and suggestions from us, the delegates.
The ILA Conference, however, was not just about constant
discussions and debates. On the evening of 17 August, Justice
Padilla and I, together with Judge Vivencio Baclig of RTC Quezon
City and Judge Raul de Leon of RTC Parañaque attended Embassy
Night where we were able to meet the Ambassador of the Philippines to The Netherlands, His Excellency Mr. Cardozo Luna, who
thereafter graciously feted us to a simple but sumptuous dinner together with Consul General Maria Anna Lilia de Vera.
One must also not forget that the city of Hague beams with
historical and tourist spots for us to visit. It is a great convenience
then that our hotel is located just opposite the Binnenhof (the Dutch
parliament) and within walking distance of parks and shopping
streets. On 18 August, some of the delegates including myself were
fortunate enough to dine at De Ridderzaal (Hall of Knights) which is
the main building of the Binnenhof. At the hall, I could not help but
to be amazed at the Gothic-inspired structure, which looks like a
church and is adorned by magnificent stained glass windows depicting the coats of arms of Dutch cities. We were told that the wooden
heads symbolizing eavesdroppers from the higher powers are supposed to deter members of the assembly from lying. I wonder then
if we could adopt the same wooden heads in our courts to dissuade
perjurers.
Being magistrates of the Court of Appeals and formerly of the
lower courts, Justice Padilla and I could not help but pay a visit to at
least one of the functioning judicial courts at The Hague. What better court to visit then than the renowned International Criminal
Court or the Cour Pénale Internationale? It is important to note that
the ICC came into being at the establishment of the Rome Statute in
order to end impunity for the perpetrators of the most serious
crimes to the international community as a whole such as genocide,
crimes against humanity, war crimes and crimes against aggression.
Upon reaching our destination, Justice Padilla and I were astonished that the building of the ICC, by itself, already commanded awe
and respect. Like the Petronas Towers in Kuala Lampur, the ICC
building comprises of two mighty structures connected by a sky
bridge at the topmost floor. We were, however, disappointed to find
that there were no scheduled hearings during our visit. Nevertheless,
the Security Personnel were kind enough to allow us to enter the
premises and take photographs of the interior. I was surprised then
to find that the courtroom was set up very plainly yet elegantly. The
courtroom seemed to have been painted with a tinge of beige and
there are window glass panels surrounding the room where the public could observe the proceedings. Conspicuous are the numerous
cameras installed all-around the courtroom which serve as a constant
reminder that the most evil and despicable criminals are tried here.
After visiting the ICC, Justice Padilla and I paid homage to the
magnificent and extensive works of art of Rembrant and Vermeer at
the Mauritshuis Royal Picture Gallery. Afterwards we went on to
31
marvel at the Castle Loevestein in South Holland were Hugo de
Groot or Grotius was incarcerated and where he made a daring
escape during the Dutch Revolt. During downtime, we would
travel to picturesque beach side resorts which are plenty in the city
considering that it is located at the edge of the North Sea and enjoy
a brisk walk in a westerly breeze.
Finally, it was a sad day for all of us at the official closing session, as we bade farewell to our newfound friends and colleagues. It
did not help also that the celebrated and dashing Rémy van Kesteren was playing melancholic compositions in his harp. At the
same time, we were also happy and grateful for the things we have
learned and discovered; most important of which was stated by
outgoing ILA President Eduardo Grebler: that in a world of economic catastrophes, civil unrest and environmental abuse, we, as
international lawyers must continue to persevere in advancing the
view that the values of civilization have to be respected as the law
of humanity-as international law. With that, I look forward to seeing the delegates again in the next biennial conference which would
be held in Bulgaria. Tot ziens!
EDITORIAL COMMITTEE
JUSTICE NOEL G. TIJAM
Chairman-Editor
JUSTICE JOSE C. REYES, JR.
JUSTICE MAGDANGAL M. DE LEON
JUSTICE PAMPIO A. ABARINTOS
JUSTICE APOLINARIO D. BRUSELAS, JR.
JUSTICE MARLENE GONZALES-SISON
JUSTICE PRISCILLA J. BALTAZAR-PADILLA
JUSTICE FRANCISCO P. ACOSTA
JUSTICE STEPHEN C. CRUZ
JUSTICE RODIL V. ZALAMEDA
JUSTICE EDGARDO A. CAMELLO
Members
CHIEF JUSTICE RENATO C. CORONA
JUSTICE NORMANDIE B. PIZARRO
JUSTICE AMY LAZARO-JAVIER
ATTY. MARIA CHRISTINA M. ATENDIDO
ATTY. EDEN R. RABORAR
MS. MANI F. GELLA
Contributors
MR. FRANCIS S. BRUNO
Photographer
MARIA CECILIA C. TIJAM
ATTY. RUTH P. RAMOS
ATTY. ANNE M. CORNELIO
CHERYL JOY D. DEAN
NELIA V. SIAO
EDMOND S. PILAPIL
JAY L. SEBASTIAN
PAUL CHRISTIAN C. TIJAM
ATTY. IRA FRITZIE C. ROJO
ATTY. MARJ M. SONGGADAN
JOHN O. CONANAN
MARISSA P. MELGAR
CELSA M. PILAPIL
DARWIN A. ALAMARIS
Staff
The Editorial Committee welcomes articles, news and other manuscripts for
publication. Please submit all contributions to the Office of the Editor at Room
401, Court of Appeals Annex Bldg., Ma. Orosa St., Ermita, Manila. Comments
and criticisms are also welcome.
32
The Court of Appeals Committee on Gender and Development Focal Point (CA-GAD Focal Point) was created by
virtue of OFFICE ORDER No. 104-07-RTR pursuant to the
Department of Budget and Management, National Economic
and Development Authority and National Commission on
the Role of Filipino Women's Joint Circular No. 2004-1 dated
April 5, 2004.
The CAD-GAD Focal Point was first organized in 2007
with Justice Josefina Guevara-Salonga as chairperson. Presently, the Committee is chaired by Justice Priscilla J. BaltazarPadilla and co-chaired by Justice Marlene Gonzales-Sison. Its
Vice-Chairperson is Justice Isaias P. Dicdican and his CoVice-Chairperson is Justice Rodil V. Zalameda. The Committee's membership is made up of the Clerk of Court – Atty.
Teresita R. Marigomen; ACAE President – Mr. Amiel C. De
Vera; Personnel Chief – Ms. Juanita Tibayan-Castro; Budget
Representative – Ms. Virginia C. Velacruz; Office of the Presiding Justice’s Representative – Ms. Liza Regala; its Secretary
– Ms. Rhodora L. Bautista; and Documentors – Ms. Elizabeth Sorianosos, Ms. Alda Floria and Ms. Kereen R. Vasquez.
To facilitate its functions and activities, the Committee is
divided into four sub-committees, to wit: 1) SeminarWorkshop Committee – headed by Justice Priscilla J. Baltazar
-Padilla; 2) Health and Welfare Program Committee – headed
by Justice Marlene Gonzales-Sison; 3) Livelihood Committee
– headed by Justice Rodil V. Zalameda; and 4) Other Concerns and Activities Committee – headed by Justice Isaias P.
Dicdican.
With its VISION – “A Court of Appeals that recog-
nizes, respects, fulfills, and protects the equal and inalienable rights of men and women who are in search of
justice that is swift, fair and judicious and likewise responsive to the needs of all its employees.”, the CA-
GAD Focal Point under the active stewardship of its current
chairperson, Justice Baltazar-Padilla, is soaring high in the
achievement of gender equality among court personnel in
terms of opportunities for training, development, promotion
and advancement.
To this end, the Committee has adopted the following
CORE STRATEGIES that would fully insure gender awareness and sensitivity among court personnel which in the long
run would build the foundation for a gender sensitive work
environment in the judiciary. These core strategies are the
following: 1) information dissemination and awareness building; 2) research and documentation of the decisions on gender related cases, gathering of gender-responsive database,
and review of policies on equality and non-discrimination; 3)
partnership building and networking; 4) promotion of the
use of gender-fair language, core gender messages and rituals
for higher gender awareness; and 5) resources mobilization.
To implement these core strategies, the Committee conducts seminarworkshops on gender sensitivity and relevant
laws, promotes and advocates the use of gender-fair language
in court, pushed for the creation of the Committee on Decorum and Investigation (CODI) in Manila as well as in the court
satellite stations in Cebu City and Cagayan de Oro and sponsors livelihood as well as health and welfare programs.
As its launching activity, the Committee sponsored a TwoDay Intensive Training Seminar on Gender Sensitivity and
Awareness on November 29-30, 2007 for its officers and
members aimed at preparing them for their task of fostering
gender sensitivity and awareness in the Court.
In 2008, the Committee conducted a Gender Orientation
Seminar for Court Officials and Employees on May 27, 2008
and a Planning Workshop on Gender Related Activities on
August 23-25, 2008.
In line with its continuing campaign for gender awareness
and sensitivity, in 2009, a series of seminars and training workshops on gender orientation and sensitivity was sponsored by
the Committee for the non-lawyer employees of the Court. A
film showing was also held to better illustrate gender issues in
relation to moral and social values. The Committee had also
ventured in livelihood trainings with the assistance of other
government agencies like the Department of Science and Technology (DOST).
For this year (2010), the CA-GAD Focal Point is persistently working to further the court employees’ growing awareness on gender sensitive issues and development to succeed in
attaining gender equality and a gender responsive working environment. The Committee continues to sponsor seminarworkshops on the Convention on the Elimination of all forms
of Discrimination Against Women (CEDAW), gender sensitivity and sexual harassment for lawyers and non-lawyers in its
Manila, Cebu and Cagayan de Oro Stations. So far, two seminar-workshops have been held for CA Manila lawyers and one
for CA Cebu City personnel, both lawyers and non-lawyers.
Another one is coming-up for CA Manila non-lawyers which
will take place on October 7 to 8, 2010. The CA-GAD has also
scheduled such seminar-workshop for CDO staff which will
be conducted from November 4 to 5, 2010.
Livelihood seminars and health care programs are also being advanced by the CA-GAD Focal Point as part of its drive
to promote economic empowerment and health awareness and
wellness among the Court employees, both male and female.
The CA-GAD previously sponsored trainings on soapmaking, mango product processing, detergent and fabric conditioner production and jewelry-making. The next livelihood
CA-GAD/p.34
Mondays at the Court of Appeals (CA) are not what
they used to be any more. At least, Monday mornings, that is.
The seeming perfunctory compliance with attendance at
Monday flag ceremonies is now a thing of the past. As a matter of fact, attendance, marked by renewed fervor, has improved considerably of late. Perhaps this could be attributed
largely to the musical performance that follows immediately
after the singing of the last hymn.
This special attraction that features a different division
every Monday to render a musical number for the listening
pleasure and viewing enjoyment of all, has somehow set the
mood and pace of the work week ahead.
The security guard- of- the- month award as well, has
now become a regular fixture of the flag raising ceremony
wherein the recipient of the award is asked to say a few
words after being handed a Certificate of Recognition.
A brainchild of Justice Normandie B. Pizarro, Chairman
of the Committee on Security, this award-giving scheme was
conceived to serve as an incentive for the guards to render
above par if not excellent service.
Early Monday morning meetings start the day of a busy
week for Presiding Justice ANDRES B. REYES, JR. as he
confers with the Division Chiefs before the 8:30 A.M. flag
raising to monitor the official business of the Court. The
Chiefs are expected to be in complete attendance at these
meetings where some concerns that affect the employees'
daily work performance are addressed.
Owing to the fact that the flag ceremony is a gathering
of Court employees, Monday mornings are also the most
opportune time to introduce new appointees to the bench
and to announce (as funds would allow) forthcoming bonanzas like bonuses, salary increments and the like which are
almost always met with thunderous approval. And there's
nothing like hearing them straight from the Presiding Justice
(PJ) himself.
However, nothing beats the eagerly-awaited musical entertainment that comes next to the singing of the Philippine
Judiciary Hymn.
At the initial presentation, the Judicial Records Division (JRD) appeared in all shades of red and caught everyone by surprise with their vocal rendition of a Beatles' (one
of the PJ's favorite singing groups) hit song, an all-time favorite entitled, Yesterday. Although they did not have ample
time to prepare, still they proved equal to the task. This, in
spite of the fact that majority of the JRD employees are post
Beatlemania babies. They, of the Lady Gaga generation, sang
with aplomb and not a single stray note except that they had
to glance every once in a while at their “librettos” (a.k.a. codigos) inasmuch as a good number of them could not sing it
33
from memory.
On the second Monday, wearing straw hats and green
shirts, the Reporter's Division regaled everyone with their
song-and-dance number. Not only did they sing, they swayed
as well to the lilting tune of Tayo Na Sa Antipolo, it being
the month of May when pilgrims pay homage to the Virgin in
Antipolo.
The next group to show off their entertainment prowess
was the all-women Accounting Division who underscored
the gender sensitivity program of the government. Clad in
their pink teeshirts (for which they credit the CA Committee
on Gender Sensitivity) and sporting color- rimmed glasses,
they rendered a faithful interpretation of Celeste Legaspi's infectiously catchy song, Mamang Sorbetero. As a fitting finale,
they led in singing the happy birthday song in honor of the PJ
(whose birthday it was, May 11) who graciously acknowledged
the gesture.
The color-coded Division Clerks of Court (DCC) and
their staffs (in vibrant yellow, verdantly-rich green and cool-to
-the eyes aqua blue tops) had the entire CA witness their early
morning calisthenics/aerobics with their rendition of the
rhythmically bouncy Buttercup song. Four comely female
DCCs in their figure-hugging teeshirts gaily led the muscleflexing and hip-swaying exercises as their male counterparts
excitedly waited in the wings for their cue.
Not to be outdone was the Medical and Dental contingent. Tapping their limitless reservoir of home-grown talent,
they unleashed their creative juices that flowed non-stop before an appreciative crowd. Conceptualized by the Court's artistically inclined dentist, Dr. Ronnie Yniguez, these healers of
the Court's infirmed “prescribed” their version of Michael
Jackson's “Heal the World” as an antidote to the societal ills
of the universe.
It was Beatles time once more when the General Services
Division's turn came up. They sang their hearts out with their
rendition of the more popular Beatles compositions accompanied by karaoke and video paraphernalia. 'Kung baga, sing along
ang dating nila'.
The Office of the Clerk of Court teamed up with the
Office of the Assistant Clerk of Court, the Raffle Committee Staff and the Security Force. With such a formidable
grouping, performing a medley of song, dance and acrobatic
stunts was a breeze.
As the performances got under way, the special effects
became more progressively high tech which left the viewers
mesmerized. Varied as the presentations were, it was highly
evident that much effort, planning and expense (for some)
went into them.
To signal the onset of the rainy season, uniformly colored
CA Got Talent/p.34
34
CA-GAD...from p. 32
project will be on basic automotive trouble-shooting mechanics.
Free pap smear check-up was given to the Court's interested female workers. A seminar on prostate cancer and free
prostate screening were given on September 23, 2010.
It can be easily discerned from the foregoing projects
and activities of the CA-GAD Focal Point that the said
committee does not only cater to women's concerns, interests and needs. As repeatedly stressed by its chairperson,
Justice Priscilla J. Baltazar-Padilla, gender sensitivity and
development connote gender equality. An excerpt from the
welcome remarks she delivered at the last seminarworkshop for CA Manila lawyers held on September 9 to
10, 2010 is quoted hereunder –
“Many equate gender-sensitivity and gender responsiveness to feminism. This is an erroneous notion. To be gendersensitive and gender-responsive does not mean to be feminist.
The call is for us to accord equal rights and chances to all,
regardless of sex.
The wrong notion is not at all surprising. The same is
founded on the historical fact that for the longest time, women
were not able to enjoy rights and avail of resources and opportunities which were then regarded as exclusive to men.
Women had fought many battles to better their condition and
uplift their lives, vis-a-vis the male members of the community. Their fierce struggle had paid off but it cannot be denied
that there is a lot more to achieve and work for. While many
laws are now in place aimed at protecting women's rights and
interests, the latest of which is Republic Act 7190 or the
Magna Carta for Women, one undisputed and sad fact is
that discrimination and inequality still do exist in the different sectors of our society. It is in acknowledgment of this
reality that many still wrongly think that gender-sensitivity
and gender-responsiveness mean feminism.
xxx gender-sensitivity and gender-responsiveness mean
providing equal opportunities for men and women ensuring
equal access not only to resources, but to benefits and services
as well xxx.”
While women empowerment is part and parcel of the
CA-GAD's goal, the same is not geared to make them rise
higher than the male members of the society but rather to
make them co-equal partners of men in nation-building.
CA Got Talent...from p. 33
blue and white umbrellas shielded the CA's front lawn when
the Library, ISDD and MISD took center stage. Leaving
nothing to chance, they came equipped with water hoses to
simulate the rain in the event the weather did not cooperate.
Reminiscent of independence day parades, the Personnel Division turned the CA grounds into a veritable parade
ground with the interplay of colors as they marched to the
tune of Y.M.C.A., a song made popular by the Village People, one of the singing sensations of the 80's.
In full force, from the Chief to their Jovit Baldivino lookalike (the Pilipinas Got Talent grand winner) the Property
Division nostalgically brought back the 1980's with their
Rico Mambo dance number which they executed with syncopated steps to perfection.
A Muslim motif was the choice of the Management and
Audit Division. And no Muslim princess dance (evocative of
the Bayanihan Dance Company's Singkil) would be complete
without the signature gold umbrella. Thus, their meticulously
decorated parasol provided their dance sequence with a semblance of authenticity. The rented confetti blaster that
coughed up multi-colored shredded paper and which took the
Audit people half a day to clean up was all worth it, so they
professed.
The Fiscal Management and Budget personnel threw
caution to the wind as they splurged on their internationallyinspired costumes. For global effect, the audience was treated
to a parade of nations that was ushered in by a chorus of
multi-lingual songs that permeated the morning air. On the
other hand, the Cash Division cashed in on their dancing
abilities. Their execution of Bus Stop, a song popularized in
the 60's by the Hollies, a British singing group, earned approval from the PJ no less, who was visibly pleased with the
musical number.
Even as the last performance from the divisions has
ended, the calls for peace, unity, reconciliation and mutual
understanding so palpable as recurring themes in most presentations still resonate in the sacred portals of the Court. May
be the message that was being conveyed was that all of these
can be achieved through music which is a universal language
that transcends borders.
The guessing game on who will be the next wave of performers ended when the Honorable Presiding Justice
Reyes, Jr. and his workaholic staff (accomplished dancers
as well) in their fire-engine red outfits cha-chaed to the Latin
beat of Michael Buble's Sway With Me, to everyone's delight. Now, the question that is being asked is: When will the
Honorable Associate Justices follow in the PJ's footsteps or
rather, “footwork”?
Truly, this welcome innovation has unmistakably revolutionized Monday mornings at the CA. It has certainly brought
more life and color to the Court. Definitely, it caught the employees' imagination. A crowd- drawer, others say. It engendered a spirit of friendly and wholesome competition among
the Court personnel. And best of all, as everyone will agree,
flag ceremony attendance has been enhanced significantly by
it.
But, if someone were to choose a single group for its outstanding performance, that particular someone will be hard put
in doing so mainly because the CA does not only have a plethora of talent but, without sounding vainglorious, may well be a
fountain-head of gifted performers second to none.
35
RA 9048...from p. 7
Rule on Reversion...from p. 19
all procedural rules for adversary proceeding must be observed. Black's
Law Dictionary defines adversary proceeding as “one having opposite
parties, contested, as distinguished from an ex-parte application, one of
which the party seeking relief has given legal warning to the other party,
and afforded the latter an opportunity to contest it” (lifted from Republic v.
Kho, et al., G.R. No. 170340, June 29, 2007) or “a proceeding where all
interested parties are impleaded, or at least notified, and allowed to be
heard before the proposed changes or corrections in the civil register
are effected.” (Republic v. Benemerito, G.R. No. 146963, March 15, 2004).
With the advent of Republic Act 9048, the correction of clerical or
typographical errors in entries in the civil register has likewise been
removed from the ambit of Rule 108 unless and until a petition has
been filed with the appropriate administrative officer and the same has
been rejected by the latter.
Subject to the aforestated rule, the Supreme Court even enunciated
that Rule 108 now applies to substantial changes and corrections of
entries in the civil register, provided, appropriate adversary proceeding
is conducted. (Silverio v. Republic, supra; Republic v. Cagandahan, G.R. No.
166676, September 12, 2008).
In the cases of Silverio and Cagandahan, the High Tribunal had the
occasion to rule on whether or not change of sex as recorded in the
civil register may be done under Republic Act 9048. The Supreme
Court resolved this controversy in the negative.
Section 2 of Republic Act 9048 provides that the correction must
not involve the change of nationality, age, status, or sex of the petitioner. As the change applied for relates to sex, the filing of an administrative petition under Republic Act 9048 is not the correct remedy. The
applicable procedure is Rule 108 of the Rules of Court.
Incidentally, in Silverio case, the Supreme Court ruled that the
petition should have been turned down by the trial court, sex change or
reassignment as ground not being among those recognized under Rule
108. Whereas in Cagandahan case, the Supreme Court upheld the trial
court’s grant of the petition for change of sex for the reason that the
petitioner therein has a medical condition known as Congenital Adrenal
Hyperplasia or CAH which means that the petitioner is intersex possessing the biological characteristics of both male and female sexes. The
petitioner’s preference to be a male should be respected, the High
Court stated, considering that it will cause no harm to others and that
petitioner’s male characteristics have become more dominant. As a
necessary consequence, petitioner’s first name was also changed from
Jennifer to Jeff.
To summarize, the present rule is that before a petition for change
of first name or for correction of clerical or typographical error in an
entry in the civil register may be taken cognizance of by a court of justice, the petitioner must first file the proper petition before the appropriate administrative officer with whom the primary jurisdiction to rule
on the matter is vested. It is only after such application has been denied
by the administrative officer that the corresponding petition in court
may be brought. Otherwise, the petition is dismissible outright due to
prematurity or non- availment/exhaustion of the administrative remedy/remedies provided under Republic Act 9048.
acquiring private properties such as donation, sale, or any other
mode of acquiring ownership?
The determination of just compensation is quite as open to
possibilities as the requirement of a specific and immutable public
purpose. For one, how are improvements to be valuated? Based on
what date? And if the improvements consist of structures essential
to public service, are they to be demolished as well? If a new petition for expropriation is required, would just compensation be
again paid? And how much should the just compensation be? Of
course, there can be no res judicata when it comes to expropriation
proceedings.*
In summary, the rulings provide a trend to humanize the
power of eminent domain. They show a tendency or a pattern to
restore power to the people inasmuch as the people are given more
platforms or portals upon which to launch challenges to the exercise of eminent domain. But because eminent domain is also a
means of social justice, as in the case of agrarian and urban land
reform, these eager assaults on eminent domain open this and
other social justice measures to viable degrees of contest. In this
situation, the desire to humanize power becomes an instrument of
reverting people oriented policies to those who hold power in society. After
all, agrarian and urban land reform programs were intended to
balance inequities in society so that those who are “have nots” may
have something in life. Hence, the story is really one of power to
people and back. As things stand, the rulings are a double-edged
sword that flows from the liberalized rule on reversion of expropriated property to its original owner. No doubt, however, the
Supreme Court in its wisdom would know how to balance competing interests and to cut and cut clean.
Pilipinas, Tsina…from p. 3
sa ating pansariling kapakanan. Ang ating suliranin lamang ay ang
kung papaano natin malalagpasan ang sinasabi ni Tikyo na “mental
colony” at kung papaano natin muling masasariwa ang dangal,
tapang, at lakas ng loob ng ating mga bayaning Pilipino na nangahas
lumaban sa mga super-lakas na Espanya at Amerika sa kabila ng
kahinaan at kakulangan para lamang maitaguyod ang ating kalayaan
at kasarinlan. Huwag nating kalimutan na tayo ang unang bayan sa
Asya na siyang nagpumiglas sa tanikala ng mga mapanakop na mga
dayuhan. Nasupil man ang ating mga bayaning ninuno, hindi naman
napuksa ang damdaming malaya. Tayo ngayon ay isa nang malayang
bansa at sana'y maunawaan natin na ang pagiging malaya ay hindi
nakamit sa madaliang paraan at lalu naman ito'y hindi mapananatili
ng ganyan-ganyan na lamang. Sa pamamagitan ng masusing pag-aaral
ng ating kasaysayan ay maaari nating mabuo ang pananaw na makapagpapakita ng ating katatagan sa gitna ng namumuong iringan ng
Amerika at Tsina sa dako ng ating karagatan.
36
PJ’s Message...from page 1
The third week of September and particularly the 19th
day of the month, are especially significant for all of us who
are directly engaged in the legal profession. First celebrated
in 1995 and 1975, respectively, Philippine National Law
Week and Law Day emphasize for all Filipinos that the rule
of law is indispensable to a sound and vigorous democracy.
The Court of Appeals, vested with the widest jurisdiction
among all appellate courts, upholds the rule of law with the
work we do everyday. From the erudite ponencia of a magistrate to the nimble binding by a stitcher, we maintain respect
for the law and obeisance to justice in a very real way.
Through the support of our colleagues, we have made some
encouraging strides through the institution of the Zero Backlog Project 2010. We have instituted a new and improved
Court of Appeals Case Management Information System
(CMIS v.2), which will soon provide real time reporting and
monitoring of cases. In the wake of the recent bomb scares
and the unfortunate incident last August 23, we have adopted
heightened security procedures, expanded the security complement, and purchased additional equipment to reasonably
guard against threats to our safety, improve security service,
and ultimately secure the delivery of justice. Currently, we are
likewise taking steps to refurbish our buildings in order to
give the public a Court of Appeals that is both efficient in its
work and dignified in its stature. With the recent formalization of real estate donations in Cebu and Cagayan de Oro, we
also come closer to the goal of having stations that become
the dignity of this Court.
Finally, the four weekends of this month see another
multitude of aspirants to the Philippine Bar hurdle what
could be the most difficult examination of their lives. Some
of them are our colleagues here at the Court who, like us,
dream of no task more noble than, “to rule conscience free,
with sound equity, [and] dispense justice swift and real.” As
they journey closer to the legal profession, we too, move
nearer the honor and distinction of our approaching 75th Anniversary.
As you read in these pages the Court's development of
the nation's law and jurisprudence, I bid you accept my most
heartfelt greetings:
To our Muslim brethren –Eid Mubarak and a happy
hariraya!
To all, a very happy Law Week and Law Day!
And to those who have just completed this year's Bar
examinations –congratulations and best wishes as you await
the rewards of your labor.
Finally, allow me to extend my sincerest gratitude to the
following magistrates who continue to support the Court's
development through our various projects and initiatives:
Republic of the Philippines
COURT OF APPEALS
MANILA
OFFICE ORDER NO. 53-10-ABR
A. STANDING COMMITTEES
1. COMMITTEE ON ETHICS AND SPECIAL CONCERNS
Chairperson J. Portia Aliño-Hormachuelos
Members:
J. Rosalinda Asuncion-Vicente
J. Mariflor Punzalan-Castillo
J. Rodrigo F. Lim, Jr.
J. Francisco P. Acosta
2. COMMITTEE ON PERSONNEL
Chairperson J. Hakim S. Abdulwahid
Members:
J. Rosalinda Asuncion Vicente
J. Isaias P. Dicdican
J. Romulo V. Borja
J. Antonio L. Villamor
3. COMMITTEE ON BUDGET AND FINANCE
Chairperson J. Remedios Salazar-Fernando
Members:
J. Juan Q. Enriquez, Jr.
J. Vicente S.E. Veloso
J. Normandie B. Pizarro
J. Danton Q. Bueser
4. COMMITTEE ON SECURITY
Chairperson J. Normandie B. Pizarro
Members:
J. Ricardo R. Rosario
J. Romeo F. Barza
J. Elihu A. Ybañez
5. COMMITTEE ON RECORDS MANAGEMENT & INFORMATION SERVICE
Chairperson J. Rosalinda Asuncion-Vicente
Members:
J. Franchito N. Diamante
J. Amy C. Lazaro-Javier
J. Edgardo L. DeLos Santos
J. Edgardo T. Lloren
6. COMMITTEE ON EMPLOYEES' WELFARE AND
BENEFITS
Chairperson J. Portia Aliño-Hormachuelos
Members:
J. Jose C. Reyes, Jr.
J. Estela M. Perlas-Bernabe
J. Marlene Gonzales-Sison
J. Rodil V. Zalameda
7. COMMITTEE ON LEGAL RESEARCH AND SERVICES
Chairperson J. Amelita G. Tolentino
Members:
J. Romulo V. Borja
J. Ruben C. Ayson
8. COMMITTEE ON BUILDINGS AND GROUNDS
Chairperson J. Bienvenido L. Reyes
Co-Chairperson: J. Pampio A. Abarintos
Members:
J. Estela Perlas-Bernabe
J. Sesinando E. Villon
J. Normandie B. Pizzaro
J. Ramon R. Garcia
9. COMMITTEE ON PURCHASE AND ACQUISITION
OF COURT FACILITIES, EQUIPMENT AND SUPPLIES
Chairperson J. Juan Q. Enriquez, Jr.
Members:
J. Japar B. Dimaampao
J. Sesinando E. Villon
10. COMMITTEE ON RULES
Chairperson J. Rebecca De Guia-Salvador
Members:
J. Mario L. Guariña III
J. Rosmari D. Carandang
J. Hakim S. Abdulwahid
J. Noel G. Tijam
J. Magdangal M. De Leon
J. Apolinario D. Bruselas,Jr.
11. COMMITTEE ON THE COURT OF APPEALS JOURNAL
Chairperson J. Noel G. Tijam
Members:
J. Jose C. Reyes, Jr.
J. Magdangal M. De Leon
J. Pampio A. Abarintos
J. Edgardo A. Camello
J. Apolinario D. Bruselas,Jr.
J. Marlene Gonzales-Sison
J. Priscilla J.Baltazar-Padilla
J. Stephen C. Cruz
12. COMMITTEE ON PUBLIC INFORMATION
Chairperson J. Rebecca De Guia-Salvador
Members:
J. Edgardo T. Lloren
13. COMMITTEE ON FOREIGN TRAVELS
Chairperson J. Rosmari D. Carandang
Members:
J. Pampio A. Abarintos
J. Michael P. Elbinias
14. COMMITTEE ON BAGUIO COTTAGES AND ADMINISTRATIVE BUILDING
Chairperson J. Josefina Guevara-Salonga
Members:
J. Rebecca De Guia-Salvador
J. Juan Q. Enriquez, Jr.
J. Fernanda Lampas-Peralta
J. Celia C. Librea-Leagogo
J. Mariflor P. Punzalan-Castillo
J. Priscilla J. Baltazar-Padilla
J. Jane Aurora C. Lantion
15. COMMITTEE ON COMPUTERIZATION, 1LIBRARY
AND MODERNIZATION
Chairperson J. Apolinario D.Bruselas, Jr.
Members:
J. Edgardo A. Camello
J. Florito S. Macalino
37
J. Michael P. Elbinias
J. Ramon A. Cruz
B. OTHER COMMITTEES
16. COMMITTEE ON RAFFLE
Chairperson J. Jose C. Reyes, Jr.
Co-Chairperson: J. Fernanda Lampas Peralta
Members:
J. Celia C.Librea-Leagogo
J. Mario V. Lopez
17. COMMITTEE ON TRANSPORT
Chairperson J. Ramon M. Bato, Jr.
Members:
J. Ricardo R. Rosario
J. Ruben C. Ayson
J. Manuel M. Barrios
18. COMMITTEE ON CASELOAD AND STATISTICS
Chairperson J. Mario L. Guariña III
Members:
J. Rodrigo F. Lim, Jr.
J. Franchito N. Diamante
19. COMMITTEE ON MUSIC AND CULTURAL ACTIVITIES
Chairperson J. Magdangal M. De Leon
Members:
J. Estela M. Perlas-Bernabe
J. Elihu A. Ybañez
20. COMMITTEE ON SPORTS AND RECREATION
Chairperson J. Vicente S.E. Veloso
Members:
J. Normandie B. Pizarro
J. Florito S. Macalino
J. Stephen C. Cruz
J. Samuel H. Gaerlan
21. COMMITTEE ON ENVIRONMENT
Chairperson J. Magdangal M. De Leon
Members:
J. Portia Aliño-Hormachuelos
J. Josefina Guevara-Salonga
J. Amelita G. Tolentino
J. Ramon R. Garcia
J. Romeo F. Barza
22. INVENTORY & AUDIT COMMITTEE
Chairperson J. Hakim S. Abdulwahid
Members:
J. Rosalinda Asuncion-Vicente
23. GENDER AND DEVELOPMENT FOCAL POINT
Chairperson J. Priscilla J. Baltazar-Padilla
Co-Chairperson: J. Marlene Gonzales-Sison
Vice-Chairperson: J. Isaias Dicdican
Co-Vice-Chairperson: J. Rodil Zalameda
Members:
Atty. Teresita Marigomen
Mrs. Juanita Tibayan-Castro
Ms.Virginia C. Velacruz
Mr. Amiel De Vera
Ms. Kereen R. Vasquez
Ms. Liza R. Regala
Ms. Irene Mendoza-Binauhan
Ms. Alda A. Floria
Ms. Rhodora L. Bautista
38
Philconsa Governors and officers led by the Chairman of
the Board of Governors Conrado Estrella, President Manuel
Lazaro, distinguished guests, ladies and gentlemen, a pleasant
good evening to you all.
I would like to thank the Philippine Constitution Association (Philconsa) for the honor and privilege of celebrating our
49th Anniversary with you. The membership of Philconsa, as
everybody in this hall will agree, is a different and elite kind of
crowd. Your guests of honor, for one, are limited only to those,
and I quote the Philconsa creed, who make “freedom and justice
prevail in our country forever.” I therefore consider it a distinct
recognition to have met your standards not just once but twice
this year ― first, on Independence Day which celebrates our
freedom and second, today, on Philconsa’s 49th Anniversary
which marks almost half a century of unwavering commitment
to the rule of law. I am particularly elated by the fact that these
two occasions underscore the twin values so powerfully expressed in the Philconsa creed: freedom and justice.
The Philconsa has been at the forefront of constitutionalism and, for almost fifty years today, we have assumed the sacred duty of upholding and defending the Constitution.
The judiciary, meaning the Supreme Court and all inferior
courts, serves as the vanguard of constitutionalism and the rule
of law in our system of government.
The Constitution itself clearly identifies the agency which
bears the primary responsibility for defending the Charter and
the rule of law and it is no other than the Supreme Court of the
Philippines.
Of the three great co-equal branches of government, the
judiciary is the most benign and the least powerful. Alexander
Hamilton in The Federalist No. 78, wrote that the judiciary has no
access to either the sword (as wielded by the executive department) or the purse (as controlled by the Congress.) However,
legal scholars are also one in saying that, while it is true that the
Supreme Court has no power of the sword nor of the purse, it
wields the power of the pen or the authority to interpret the
Constitution and the laws.
The 1987 Constitution expanded the powers of the Supreme Court so as to vest the Court with the power of judicial
review whose one and only purpose is to check transgressions
on the Constitution.
When the Supreme Court invokes its power of judicial review, it does not assert its moral or Constitutional ascendency
over the other two co-equal branches of government. It only
reminds all and sundry of the non-negotiable supremacy of the
Constitution. Neither is it an encroachment on the powers of its
co-equal branches but a mere reiteration of the sovereign will of
the people to have an effective system of checks and balances.
Judicial review does not violate the principle of separation of
powers and in fact reinforces, guarantees even, the maintenance
of political equilibrium among the three co-equal branches of
government.
The power of judicial review is not an exercise of dominance or interference in the exclusive affairs of another department. It is in fact the means established by the constitution itself to preserve the peace and stability of our political system so
that the possibility of a constitutional crisis or a clash of powers
may precisely be avoided. This is constitutionalism. This is the
rule of law.
Which brings me to my next point. The rule of law is what
governs modern society. Our people allow the rule of law to
dictate how they go about enforcing their rights and seeking
redress for their grievances only because of the trust and confidence they have in the legal system. It is this trust and confidence in the rule of law that prevents anarchy and mob-rule
from holding sway.
We in the judiciary are burdened with the heavy responsibility to preserve and enhance the people’s trust and confidence
in constitutionalism and the rule of law. It is thus of utmost
importance that our decisions be handed down with justice and
fairness, without fear or favor, and with no reward or expectation other than the honest desire to preserve and strengthen our
democratic way of life.
In this light, judicial independence serves as the heart and
soul of constitutionalism and the rule of law. Without it, the
judiciary would be unable to impart fair and impartial justice to
those who seek it and those who yearn for a redress of their
grievances.
Judicial independence has been tested and attacked over
and over again in many ways. Ever since I can remember, all
sorts of accusations have at one time or another been heaped
on it, from the truth to the downright malicious. The judiciary is
easy to attack because it does not have the means to defend
itself. It has no sword. It has no purse. Other than the decisions
it writes and its limited power of contempt, there is really nothing much it can do to fight a propaganda war. That is not its
business anyway. But right is right and wrong is wrong. Let justice be done though the heavens fall.
When everything is said and done, there is no better defense than the balm of a good conscience. Beyond this, an upright and God-fearing magistrate can do no more. But attacks
and criticisms in truth matter very little, if at all, because it is the
magistrate’s integrity that keeps the balance and equilibrium of
the scales of justice on an even keel. And as long as that scale
tilts neither to one side nor the other, that is the assurance that
our democracy is alive and our system of justice deserves the
people’s trust.
Thank you and a pleasant evening to you all.
* Excerpts from the Speech delivered by CJ Renato C. Cororna during the 49th Anniversary of the PHILCONSA, Manila Hotel, 7:00 P.M., October 19, 2010.
Being married to a nutritionist can be stressful. Knowing
what foods to eat, my wife Ophy always reminds me to avoid
fatty foods, soft drinks, rich desserts like cakes and ice-cream.
My favorite foods are fried chicken, ice-cream, chocolates and
chocolate cake.
But now that we are getting old and our urban lifestyles
are still stressful, it would be worthwhile to know how age,
stress and the food we eat work together to make life better
or worse. According to the latest book she was browsing,
there are different ways or steps we can take to manage stress:
1. Recognize and change bad behaviors
2. Modify eating habits
3. Take nutritional supplements
4. Improve other aspects of your lifestyle.
Yes, I have recognized and tried to change my bad
behaviors like being moody. Mood swings do affect work
productivity in the office. At least, I have taken steps to
change. I found out from her that the food we eat affect our
moods and that nutritional supplements can be helpful in
controlling them. In this article, let me share with you the
things we learned together about food and nutrition solutions
to overcoming stress.
Improving other aspects of my lifestyle is in progress. I
used to not pay attention to her advice to do physical
exercise. According to her, diet alone will not be enough to
sustain our ideal body weight once we have achieved it. I am
so glad to be an obedient husband in this aspect. Every other
day, I visit the Court of Appeals exercise room. Under the
supervision of our physical therapist, Dux, I do treadmill and
weights. It has been a relaxing routine that helped me lose
weight while being able to still eat my favorite foods.
But stress in the workplace will always be there. Through
proper eating, we can make ourselves healthy and able to beat
stress.
So what should we eat? There is no such thing as good
and bad food. But there is such a thing as a healthy and
nutritious diet. In general, such a diet should be adequate in
amount, balanced in nutritive content and eaten in
moderation.
Specifically, a diet that will help relieve stress has the
following characteristics:
1) no caffeine-containing beverages like coffee and soft
drinks
2) minimal in sugars and refined carbohydrates
3) abundant in high fiber non-starchy vegetables (green
leafy ones)
4) high in good quality proteins (from fish and poultry)
5) high in healthy oils (from avocado, olives, fish)
39
Excessive caffeine interferes with sleep and we wake up
feeling tired. We are more likely to be irritable when we are
tired. A lot of sugars, on the other hand, aggravate our
moods and feeling of tiredness. However, eating a lot of
fiber and high-quality proteins can help maintain our blood
sugar levels. High-quality proteins include chicken, turkey
and fish.
Take Chamomile in tablet or capsule form. It also
makes a tasty hot tea, especially with the addition of a little
honey. It has a light apple smell and a grassy taste. It has
anxiety-reducing and mild sedative benefits.
Other helpful supplements are vitamin B-complex,
vitamin C and magnesium.
A high-potency B-complex vitamin is the most
important supplement for reducing anxiety. Vitamin C, on
the other hand, helps to prevent brain toxicity from
stimulants. Vitamin tablets should be taken with a meal or
snack to increase absorption. Otherwise, it will be excreted
into the urine and wasted. The body needs also magnesium
for muscle relaxation. Muscle spasms likely indicate
inadequate magnesium levels.
Other helpful tips are:
• Use fresh and wholesome ingredients. Frozen
vegetables are better than canned. Whether eating at
home or in restaurants, eat slowly and chew your food
well. This practice will reinforce your other anxietyreducing activities and you will enjoy the taste of your
food more.
• Be sure to have healthy snacks handy, especially if you
have no time for nutritious meals. Healthy snacks
include fruits in season, dried beans and nuts as well as
whole wheat breads. These foods contain a lot of fiber.
• Drink plenty of water. It is the most important
macronutrient in the body. Together with fiber, water
cleanses our body of toxic substances. About 50-70%
of body weight is water. It regulates body temperature,
transports nutrients, hydrates the skin, lubricates joints
and facilitates digestion, absorption and excretion. The
recommended daily intake of water for Filipinos is
about 10-12 glasses.
• Phytochemicals are compounds found in plant foods
that have strong antioxidant effect, which means they
help protect the body from cancer and heart disease.
Eat much of these foods: broccoli, cabbage, and
cauliflower. Other food items are yellow and orange
vegetables, citrus fruits, onions, green tea, soybeans,
leeks and chives.
HAPPY EATING TO ALL!
August 28, 2010, Judiciary Golf Tournament, Club Intramuros, Manila.
L to R: Atty. Ricardo C. Bernabe, (two other participants), SC Justices Jose C.
Mendoza, Presbitero J. Velasco, Jr., Atty. Nicanor Lazaro, Justice Estela M. PerlasBernabe, Judge Manuel Ortiguerra, Justice Raoul Victorino (ret.), Commissioner
Ralph Lantion (ret.), Justice Bienvenido L. Reyes, and Judge Renato Francisco.
74th Conference of the International Law Association (ILA), The Hague, Netherlands.
Seated L to R: QC RTC Judge Vivencio Baclig, Mrs. Madrona, Makati RTC Judge Fortunito
Madrona, Atty. Zenaida Reyes, Justice Priscilla Baltazar-Padilla, Standing L to R:
Parañaque RTC Judge Raoul de Leon (daughter and wife), and Justice Marlene GonzalesSison.
Not in the picture: Justice Elihu Ybañez, Justice Danton Bueser, and Justice Rodrigo Lim, Jr.
FUN TAKBO PARA SA
KAARAWAN NG PUNONG
MAHISTRADO
“OKTOBRE 17, 2010”
1
2
3
4
7
6
10
5
8
9
11
12
1. SC Justice Mariano C. Del
Castillo and staff;
2. Staff of Justice Noel G.
Tijam;
3. Presiding Justice Andres B.
Reyes, Jr. with the Fun Takbo
participants doing the warm up;
4. Seated L to R: SC Justice
Mariano C. Del Castillo, Presiding Justice Andres B. Reyes,
Jr., CA Justices Normandie B.
Pizarro, Ramon M. Bato, Magdangal M. De Leon, Sesinando
E. Villon, Japar B. Dimaampao;
Standing: Ganda CA Task
Force;
5. Chief Justice Renato C.
Corona, birthday celebrator;
6. CA Employees getting ready
and excited for the Fun Takbo;
7.Chief Justice Renato C.
Corona with the ACAE officers;
8.CA DCC’s Atty. Evangeline
Llamas and Atty. Donna
Oropesa (Center), with CA
Personnel;
9.CA Guards bearing the
birthday celebrator’s streamer;
10.CA Personnel;
11.Presiding Justice Andres B.
Reyes, Jr. with Justice Ramon
M. Bato, DCC’s and CA Personnel; and
12.Ganda CA Task Force with
the staff of Justice Noel G.
Tijam.

December 2010 Issue. Click here to file.

Transcription

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