By Lira Dalangin-Fernandez, Maila Ager
First Posted 14:06:00 06/16/2009
MANILA, Philippines – (UPDATE) The Supreme Court’s dismissal of a petition against House Resolution 1109, which seeks to convene a constituent assembly to amend the Constitution, could embolden its proponents to push through with their plan, militant lawmakers warned.
Without deciding on the legality of HR 1109, the high tribunal on Tuesday dismissed a petition filed by lawyer Oliver Lozano and his daughter, Evangeline, saying it was premature to question it.
“It doesn’t close the issue. Proponents of con ass [constituent assembly] will continue their initiative, the Lozano petition as no relevance on what they’re pushing for,” Bayan Muna partylist Representative Satur Ocampo said in a phone interview.
Representative Teodoro Casiño, also of Bayan Muna, said HR 110 proponents could put a spin on the decision to make it appear that the Supreme Court upheld the resolution, while in fact, the petition questioning it was dismissed on a technicality.
“They could say that since a petition against it was dismissed, it could mean that there’s no more hindrance to convening a constituent assembly,” Casiño said in a phone interview.
“Lozano’s petition was designed to fail so that its dismissal can be used to justify Lakas-Kampi’s next step which is the immediate convening of the House constituent assembly,” Casiño said in a separate text message.
Anakpawis party list Representative Rafael Mariano said the dismissal would “incite Ms Arroyo’s allies to force the situation and convene her self-serving constituent assembly.”
“After the SC’s favorable ruling, Ms Arroyo and her minions will be more aggressive and desperate to convene a fake constituent assembly and perpetuate themselves in power. The people should not let their guard down,” Mariano said.
Speaker Prospero Nograles, the main author of the resolution, said the dismissal was anticipated.
Echoing the view of Constitution expert, Father Joaquin Bernas, he said that HR 1109 did not by itself convene Congress into a constituent assembly.
“There will be justiciable issue only when con ass is actually convened and specific amendments (are proposed),” Nograles said.
Nueva Ecija Representative Rodolfo Antonino, another proponent of HR 1109, said that Lozano’s petition was premature since there was no actual convening of the assembly yet.
Quezon Representative Lorenzo Tanada III, a member of the Liberal Party, welcomed the tribunal’s decision.
“This should also be a warning to Representative Antonino that his plan will not work. The dismissal of the case of Lozano will now force the proponents of HR 1109 to either convene con ass to create the judicial controversy or to just forget HR 1109 and have it archived. The LP hopes that the proponents choose the later,” he said in a text message.
Muntinlupa Representative Rufino Biazon said the decision was expected, saying that a “justiciable controversy will only happen if the House actually convenes itself into a con ass and the Senate disagrees.”
Gabriela partylist Representative Liza Maza said HR 1109 remained as mere “expression of the House” and that there was no controversy yet as long as there was no move to convene.
“Lozano should be told not to resort to legal adventurism on this very important issue,” Maza said.
Representative Risa Hontiveros of Akbayan partylist said the Supreme Court “avoided Malacañang and the House majority’s trap of ruling on the political question” by dismissing the “nuisance case.”
Senate President Juan Ponce Enrile and Senators Manuel Roxas and Richard Gordon said the court’s ruling was expected because the constituent assembly has not been convened.
“Expected na namin yun kaya nga hindi nga kumikilos ang Senado [That’s expected. That’s why the Senate is not moving],” Enrile said.
Roxas said the Senate legal department was instructed to prepare in case the constituent assembly is convened, even as senators agreed in a caucus early this month not to act on HR 1109.
He said a mere announcement of the date for the convening of a constituent assembly could be enough grounds to question the matter before the court.
Some congressmen pushing for Charter change want to convene the assembly immediately after President Gloria Maapagal-Arroyo’s State of the Nation Address (SONA) in July.
Gordon warned pro-Charter change lawmakers that the Supreme Court would rule against a House-only constituent assembly.
“Sa ngayon, ang malinaw ang dapat gawin ng ng Kongreso kung gusto nilang mag con-as na sila-sila lang, pati yan ay ibabasura ng Korte Suprema sapagkat paulit-ulit naming sinasabi ang Congress ay two houses. Hindi kayang gawin ng lower house, yung pagbabago ng Saligang Batas [It’s clear, if the House wants a constituent assembly by itself, the Supreme Court will rule against it. We have said repeatedly that Congress has two chambers. The lower house alone can’t amend the Constitution],” he said.
Senate Minority Leader Aquilino Pimentel Jr. welcomed the SC ruling as “good news.”
Updated May 09, 2009 12:00 AM
Public safety comes first, so the Supreme Court has affirmed with finality its ruling that the oil depot in Manila has to go. The SC affirmed the validity of Manila City Ordinance 8027, declaring the 36-hectare area in Pandacan where the oil depot sits as a commercial area that must be cleared of the fuel terminals used by the “Big 3” — Petron Corp., Pilipinas Shell Petroleum Corp. and Chevron Philippines Inc.
The SC had originally ordered the shutdown of the depot in February last year “to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan terminal.” The ruling is appreciated by residents of Pandacan and neighboring areas. But the incident should also prod the government to improve zoning regulations to prevent a repeat of this controversy.
The “Big 3” had fought the ordinance all the way to the Supreme Court, and their arguments cannot be taken lightly. Both the Spanish colonial government and the Americans who took over had designated Pandacan as an industrial zone. With this classification, the oil companies built their storage and distribution facilities in Pandacan a century ago, and a housing facility for the workers was built around the site. Over the years manufacturing plants moved out of the district while the number of private homes grew.
Relocating to a still unspecified site and building a new depot will cost the oil companies billions of pesos. Once they select a new site, there is no guarantee that they will be able to build their depot. The project could be opposed by residents worried about environmental and public safety hazards. The oil companies have said that a depot built too far away from Metro Manila could raise pump prices in the nation’s premier region.
Investors have long complained about the uncertainty of doing business in this country, with legitimate contracts being overturned and rules being changed after a lot of money has been poured into certain projects. Though the circumstances are slightly different in the case of the Pandacan oil depot, this is another addition to the growing pile of cautionary tales for foreign investors in the Philippines.
In the past decades, new industrial areas have been developed around the country and the government has invited foreign investors to bring their business to those special zones. The government should make sure that those who respond to that invitation will see their investments protected.
BAGUIO CITY – Pawnshops, the enterprise most likely to unburden households during financial crises, should be covered by documentary stamp taxes, the Supreme Court ruled here.
The court’s second division overturned a Court of Tax Appeals ruling that H. Tambunting Pawnshop Inc. should not be assessed for documentary stamp taxes because it issued pawn tickets, which “were not securities indicating indebtedness.”
But Associate Justice Presbitero Velasco Jr., in a dissenting opinion, said Congress intended to exempt pawnshops from this tax.
“It is my submission that Presidential Decree 114 is a piece of legislation granting social justice to the poor, the marginalized and the weak. Our view on the exclusion of pawn transactions from the coverage of [the documentary stamp tax] hews closely with the principle that those who have less in life should have more in law,” Velasco said.
The Bureau of Internal Revenue defines the documentary stamp tax as one imposed on all types of documents or loan instruments which establish that certain assets or obligations have been transferred, sold or reassigned to another party.
In a decision written by Associate Justice Leonardo Quisumbing, the high court said it had made the same judgment when it ruled on a similar dispute between Michel J. Lhuillier Pawnshop Inc. and the commissioner of internal revenue.
In that 2006 ruling, the court cited Section 195 of the National Internal Revenue Code which imposed a documentary stamp tax “on every pledge regardless of whether [the document] is a conventional pledge governed by the Civil Code or one that is governed by the provisions of [PD 114 or the law regulating pawnshops].”
Tambunting had argued that PD 114 already defined the pawnbroker’s receipt as one “for a pawn [which] is neither a security nor a printed evidence of indebtedness.”
Therefore, the firm argued, the pawn ticket was shielded from the coverage of documentary stamp tax.
What BIR should pursue, it said, were pledge agreements assigned by the pawnshops “if any is issued,” quoting Tambunting’s petition.
The BIR asserted that “the transactions in a pawnshop business partake of the nature of pledge transactions” so the court should conclude that “pawn transactions as evidenced by pawn tickets are subject to documentary stamp tax.”
Vincent Cabreza, Inquirer Northern Luzon
Court voids 2-percent rule
MANILA, Philippines – Thirty-two partylist seats at the House of Representatives will be filled up after the Supreme Court voided the two-percent rule to determine whether a partylist should get a second or third seat in Congress.
In a 35-page decision penned by Associate Justice Antonio Carpio, the high tribunal granted a petition filed by the Barangay (village) Association for National Advancement (Banat) and set aside a resolution by the Commission on Elections (Comelec).
Voting 8-7, the court also affirmed its decision barring major political parties from participating in partylist elections directly or indirectly.
With the ruling, the party list groups Bayan Muna and Buhay will get the maximum three seats each and two seats each for the Citizens Battle Against Corruption (Cibac), Gabriela, Association of Philippine Electric Cooperatives (APEC), A-Teacher, Akbayan, Alagad, Coop-Natco, Butil, Batas, ARC, Anakpawis, Abono, Amin, Agap, and An Waray.
There are currently 23 partylist lawmakers. The law allows a maximum of 55.
“We declare unconstitutional the two percent threshold in the distribution of additional partylist seats. The allocation of additional seats under the PartyList System shall be in accordance with the procedure used in of this Decision. Major political parties are disallowed from participating in party-list elections,” the court said.
The court said that if the two-percent threshold were followed, it would present “an unwarranted obstacle to the full implementation of Section 5(2), Article 6 of the Constitution and prevents the attainment of the broadest possible representation of party, sectoral or group interests in the House of Representatives.”
Under law, a partylist group must have garnered two percent of the total votes cast for the party list election to get one seat.
According to the Comelec resolution, a partylist group must have garnered another two percent of the total votes cast, or a total of four percent, to qualify for a second seat, or a total of six percent to qualify for the maximum three seats.
But the Supreme Court said that according to the Party List Law, the second and third seat should be based on the total votes garnered by the particular party group, not the total votes cast for all partylist groups.
This case defines “public document” in the crime of Falsification of Public Document under Article 171 (2) of the Revised Penal Code (RPC) committed by a Public Officer or employee or notary. It also answers the question of whether gain or benefit on the part of the offender or prejudice to public or a third person is an essential element of the crime.
The case was about a Barangay Resolution supposedly passed on September 24, 1995, allocating the amount of P18,000 as disbursement for the expenses in a seminar to be attended by Larry, the Barangay Chairman and Nandy, the Barangay Kalihim of a barangay in Laguna. The case arose because on said date only Larry, and Kagawads Manny, Mando and Cardo went to the barangay health center to attend a pre-scheduled session. So for lack of quorum, no actual session of the Sanggunian Pambarangay took place on said date.
But Manny, Mando and Cardo later found out that Barangay Resolution No. T-95 supposedly copied from the minutes of the session held on September 24, 1995 was passed by all the kagawads who supposedly attended it. The title of Res.T-95 clearly states that the Sanggunian had already approved the allocation of P18,000 for Larry and Nandy and that it was kagawad Rene who made the motion duly seconded by kagawad Ric for the passing of the resolution when they did not even attend the supposed session. Nandy as Barangay Kalihim even certified said resolution as true and correct and Larry as Punong Barangay attested to its truthfulness. This discovery prompted the Sanggunian to hold a special session of October 15, 1995 during which seven Kagawads passed a resolution stating that no session was actually held on September 24, 1995.
Thereafter, Manny, Cardo and Mando filed a complaint of Falsification of Public Document before the Ombudsman for Luzon who later charged Larry and Nandy before the Regional Trial Court (RTC) with the said crime punishable under Article 172 (2) of the RPC. After trial the RTC convicted them of the said crime and sentence them to imprisonment of 4 years and 2 months minimum to 8 years and two months maximum.
Larry and Nandy questioned the RTC decision. They contended that the said resolution was nothing more than a mere proposal or draft which Nandy, the Kalihim, as was the practice, prepared and signed a week before the scheduled session. They also said that they did not benefit from or that the public was not prejudiced by the resolution in question. Were Larry and Nandy correct?
No. Resolution Number T-95 is a public document. Public documents are written official acts or records of official acts of the sovereign authority, official bodies and tribunals and public officials whether of the Philippines or of a foreign country (Sec. 19 (a) Rule 132, Rules of Court). Verily the resolutions or ordinances of Sanggunians are public documents as they are written official acts in the exercise of their legislative authority. Thus the public money-disbursing and seemingly genuine Res. T-95 in the preparation of which Larry and Nandy, in their official capacity had a hand, is a public document within the context of Article 171 (2) of the RPC.
The contents and appearance of Res. T-95 argue against the very idea of its being a mere proposal or draft barangay enactment. A draft resolution would not be numbered, would not be carrying certificatory and attestation signatures and would not be sealed. It would not include particulars as the attendance of all members and the identity of the moving and seconding Kagawads relative to its passage for such details are not certain unless rehearsed or planned. And the notion that it was rehearsed or planned is negated by the Resolution of October 15, 1995 signed by 7 kagawads virtually thrashing Res. T-95.
All the elements of falsification under Article 171(2) are therefore present: the offenders are public officers; they take advantage of their official position; they falsified a public document by causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate.
Falsification of a public document is consummated upon the execution of the false document. Erring public officers’ failure to attain their objectives is not determinative of their guilt or innocence. The element of gain or benefit on the part of the offender or prejudice to a third person as a result of the falsification or the tarnishing of the document’s integrity is not essential to maintain a charge of falsification. What is punished is principally the undermining of the public faith and the destruction of truth as solemnly proclaimed therein (Goma and Umale vs. Court of Appeals et. al. G.R. 168437 January 8, 2009).
Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.
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A LAW EACH DAY (Keeps Trouble Away)
By Jose C. Sison
Updated February 25, 2009 12:00 AM
Rules of procedure should not be applied in a very rigid and technical sense if the ends of justice will be defeated. This is once more illustrated in this case of Ed.
Ed was employed in a cement company (UCC) in 1996 starting as a planner in the motor pool section. In the course of his employment he was assigned and promoted to different positions. But when he was already in a supervisory level position, he got involved in an alleged theft of company property and after investigation establishing his culpability, was dismissed for loss of trust and confidence.
Thus Ed filed an action against UCC and its plant manager for illegal dismissal before the NLRC. In its decision the Labor Arbiter (LA) found UCC guilty of illegal dismissal as it failed to establish the commission of the theft much less Ed’s culpability. So the LA ordered Ed’s reinstatement with back wages plus moral and exemplary damages all totaling P1,185,835.25. Initially this was affirmed by the NLRC modifying only the award of moral and exemplary damages into P100,000 and P50,000. But on UCC’s motion for reconsideration the NLRC reversed and set aside its previous ruling and dismissed Ed’s complaint.
Posthaste, Ed filed a petition for certiorari in the Court of Appeals (CA). But the latter dismissed his petition outright for deficient payment of docket fee, failure of his counsel to indicate his Roll of Attorney’s number and the date and place of issue of his IBP OR, failure to append a legible copy of annex “E” and improper verification as it is not based on personal knowledge since it was only done by his wife as attorney-in-fact.
Ed filed a motion for reconsideration explaining the procedural lapses pointing out that: the petition itself contained a reservation on his willingness and readiness to pay the deficiency that may be further assessed as the fee he paid was based only on a prior inquiry via long distance. To settle the deficiency, he sent a postal money order for P1,000; the roll of attorney’s number as well as the IBP OR also appeared in the petition but in other parts; the illegible copy of annex “E” is only one of the annexes that should not merit outright dismissal and to cure it, he submitted a clearer copy; while the verification was executed by Ed’s wife whom he constituted as his attorney-in-fact only because he was then already working abroad.
Notwithstanding the exhaustive explanation, the CA still denied his motion for reconsideration. Was the CA correct?
No. Subsequent and substantial compliance by the appellant may warrant the relaxation of the rules of procedure. The rules of procedure are mere tools designed to expedite the decision or resolution of cases and other matters pending in court. Strict and rigid application of technicalities that tend to frustrate rather than promote substantial justice must be avoided. Case should be determined on the merits after full opportunity to all parties to ventilate their causes and defenses rather than on some technicality or procedural imperfections.
In this case Ed readily corrected the procedural lapses in his petition cited by the CA as reason for the dismissal thereof. In all, he subsequently and substantially complied with the procedural requirements initially found lacking or defective by the appellate court.
Undeniably, the CA was correct in dismissing outright his petition for certiorari. However, upon motion for reconsideration and with a full and complete explanation, the CA should have reconsidered its prior dismissal and reinstated the petition. It is not remiss for the CA to adjudge Ed’s case based on the merits especially with the conflicting decisions rendered by the NLRC (Hipol vs. NLRC etc. G.R. 181818, December 18, 2008).
Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.
E-mail at: firstname.lastname@example.org
A LAW EACH DAY (Keeps Trouble Away)
By Jose C. Sison
Updated February 18, 2009 12:00 AM
View previous articles of this column.