Wake Up, Philippines!

Undermining public faith

Posted in Jurisprudence, Laws, Supreme Court Decisions by Erineus on February 25, 2009

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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E-mail at: jcson@pldtdsl.net
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A LAW EACH DAY (Keeps Trouble Away)
By Jose C. Sison

Updated February 25, 2009 12:00 AM

Exploiting our culture

Posted in Congress, Legislation, Reproductive Health, Women by Erineus on February 20, 2009

Filipinos are known worldwide for their strong family ties and filial love and respect for elders and as staunch defenders and protectors of their women and children. Their respect and care for mothers, wives and children are relatively much more intense and intimate than that of people in any other country.

This admirable trait is deeply embedded in our culture. No law is even necessary to bring about such kind of respect for, as well as care and protection of our women and children. But just to preserve, enhance and support this desirable Filipino culture, and to assure that it will not be eventually set aside and disregarded, our legislators chose to enshrine it in the legislative annals by enacting Republic Act 9262 otherwise known as “Anti Violence against Women and Children Act” in 2004.

Lately, our legislators seem to have gone a step further by drawing up what it considered a “Magna Carta for Women” that on its face looks laudable or even badly needed in this present modernistic and materialistic day and age. Unfortunately on closer scrutiny, the said Magna Carta is turning out to be another insidious attempt to sneak into our statute books some of the toxic provisions of the RH bill. Vigorously campaigning for its approval is an organization known as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) Watch Philippines. Working closely with it is the Philippine Legislative Committee on Population and Development (PLCPD) the same foreign-funded NGO which is the architect and principal promoter of the still pending RH bill. The backers of the “Magna Carta” betray the hidden agenda behind it.

It is really quite deplorable that these groups where some members of Congress belong are exploiting our own Filipino culture to advance their anti-life and anti-family, pro-abortion-population control agenda under the guise of a bill purportedly empowering women, upholding their dignity, protecting their rights and assuring their equality with men in economic, political, social and cultural life.

Because of their subtly altered form, some unconstitutional, anti-life and anti-family provisions of the Magna Carta went unnoticed, enabling it to breeze through second reading in both Houses. The report is that an appallingly large number of the members of Congress were not completely aware that the versions of the bill in their chamber were already approved on second reading and what remained was the pro-forma approval of the printed version on third reading.

In the Senate, the approval on second reading was reconsidered to accommodate new amendments. But it appears that some of these amendments worsened the objectionable features in the bill and rendered it all the more unconstitutional, anti-life and anti-family. But as expected the bill has also been approved on third reading.

The remaining step in the legislative mill is therefore the reconciliation of the Lower House and the Senate versions of the “Act providing for the Magna Carta of Women” by a Bicameral Conference Committee (BICAM) which will come out with the final version for signing into law. This should be one of those times when the existence of this Committee as some sort of a Third House of Congress further refining the products of both chambers can be appreciated. But again this largely depends on the BICAM’s composition. In this particular bill, most of the BICAM members designated by both chambers are also listed as “members” of the PLCPD. So they will expectedly insist on their “pet” provisions which are similar to the objectionable portions of the RH bill but in subtler more appealing form because it is supposedly pro-women.

Indeed one of the Senate BICAM members and principal sponsor of the Magna Carta, Senator Pia Cayetano has already come out with a press release warning that the BICAM should not “emaciate” the said bill. Cayetano insists that there is nothing in the bill which would allow abortion as abortion remains illegal under the 1987 Constitution. Yet in almost the same breadth she is batting for the use of contraceptives by women for the “reproductive health” citing in the process the high maternal mortality rate among Filipino women especially the poor. Obviously Cayetano (Pia) is using the same fallacious and deceptive argument advanced by the proponents of the RH bill. She still refuses to see that the “reproductive health care services” she is promoting that allows the use of contraceptives may cause abortion or cancer among women; and that “reproductive health” is neither about reproduction or health as it prevents or terminates pregnancy and may lead to death due to breast, cervical or liver cancer according to the studies conducted by WHO itself.

In the Lower House, Congressman Edcel Lagman, the principal sponsor of the RH bill is also the staunch backer of the Magna Carta. According to highly reliable sources Lagman suggested at a pre BICAM meeting the bill’s provisions be anchored solely on their adherence to the CEDAW and other international instruments which are in direct collision with our Charter and existing laws. Lagman also reportedly suggested the retention of provisions formally objected to by the Episcopal Commission of Family and Life and the CBCP Office on Women. He also reportedly wants to remove the word “ethical” qualifying the family planning methods made available in the bill as one of the comprehensive health services while insisting on the retention of “management of abortion complications” obviously to bring them fully in line with his RH bill.

The BICAM should therefore be more careful and should not rush the drafting of the final version of this bill just to have a photo-op for its signing on Women’s day celebration this coming March. There may not even be any signing at all if the final version is adopted in similar fashion as the versions of the Upper and Lower Houses; or if there will be a signing, its unconstitutional portion will just be invalidated by the Supreme Court.

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 20, 2009 12:00 AM

Court of Appeals mess

Posted in Court of Appeals, Judiciary, Scandal/Expose/Mess by Erineus on February 18, 2009

The news headlines coming out lately undoubtedly confirm that the culture of corruption in public service has been institutionalized. But this is no reason for the citizenry to accept this as a fact of life in government. On the contrary the public should be more indignant in denouncing the anomalies being exposed.

To be sure, graft and corruption is already established for quite sometime in the executive and legislative department. Hence it is no longer shocking to hear and read about deals in these offices that are grossly disadvantageous to the government. The latest expose about the CHED (Commission on Higher Education) call center project and the Land Bank loan to QUEDANCOR have just further lengthened the list of the previous scams plaguing this administration notably the Joc-Joc Bolante fertilizer fund scandal and the huge commissions or “tongpats” in hundreds of millions of US$ paid to brokers with strong connections in this administration for the aborted ZTE-NBN Broadband project and the abandoned North Rail project.

Then there are also the anomalous mega deals in the Comelec particularly the Mega Pacific Consortium automated counting machines project that was declared null and void by the Supreme Court itself because of obvious violations of law; and the infamous “Garci” dagdag bawas scandal involving some military generals who reportedly received financial rewards and promotions.

Graft and corruption in public service are now deeply rooted obviously because of the government’s reaction to these anomalies that led to lack of clear and conclusive findings. Instead of actively and expeditiously pursuing the cases and digging deeper into the truth or falsity of the exposes, the government uses “executive privilege” in refusing to cooperate with the investigators.

Instead of initiating the moves to investigate the allegations and gather the necessary evidence to determine whether its detractors are telling the truth or not, the government assails its detractors for “making accusations without evidence and privilege speeches without accountability”. The move to suppress the truth about these revelations seems to be very evident in this kind of stance.

The lackadaisical attitude and delayed action of the Ombudsman is also a contributing factor. Since the time of the exposes up to now, the Ombudsman has not come out with any resolution on these anomalies. On the contrary it has even dismissed the complaints against the Comelec officials who were found indictable for violations of law by the Supreme Court itself.

More disturbing is that certain corrupt practices have penetrated even our Judiciary. What used to be mere unfounded but apparently plausible rumors concerning the shady deals in all levels of our courts of justice circulating in coffee shops and cocktail circuits are now being denounced by some of the magistrates themselves. Now, none of the three branches of government can still categorically claim that its offices are not tainted with corruption.

This is more unfortunate in the case of the Judiciary because it is supposed to be the last bulwark of democracy, the government department where people expect to be relieved from a kind of hunger more intense than their hunger for food — the hunger for justice.

The public exposure of the behind the scenes maneuvering and bickering among the justices of the Court of Appeals (CA) on the high profile case of GSIS vs. Meralco is really unfortunate. It has further eroded (hopefully not beyond repair) the trust and confidence in our courts of justice. It could have been avoided because the issues therein are not controversial enough to
necessitate the “lobbying” of the parties involved. In other words, it is not one of those cases where the decision could be and is actually subjected to outside pressure but still looks correct precisely because the facts and the law give enough judicial discretion for the court to “correctly” decide either way without being suspected of succumbing to pressure.

In this case, based on the facts and the law, the CA decision is the only correct one that could have been made. Had it decided otherwise, it would be glaringly erroneous as would easily raise the suspicion that it was pressure laden. Hence, if it were not for Justice Jose Sabio’s revelations involving internal administrative matters that do no affect the merits of the case, the  ecision looks unassailable. The justices concerned could have just threshed out among themselves this purely internal issue.

Nevertheless, Justice Sabio’s move to go public may after all be good for the country. It may, and it should trigger the needed judicial clean up that is long in coming. In going public, Justice Sabio is apparently motivated by a desire to put a stop to these undesirable behind the scenes practices in our courts. In fact, because of his bold move, Mr. Francis Borja, the unnamed businessman also had to come out and the SC had to step in.

Obviously Justice Sabio and Mr. Borja have their own version of what transpired especially on the question of whether there was a bribe offer or a bribe proposal coming from either of the contending parties to the case. This is not a question that can be decided by public opinion shaped by media on who has a better reputation for credibility. A statement coming from a credible person must also be inherently believable. Hence, since the Supreme Court is already investigating the case, it would be advisable for them to desist from further making press statements and instead show to the SC the inherent truthfulness of their respective versions.

In this judicial investigation, the SC should adopt measures that would lead to clear, credible and conclusive findings and really meaningful and lasting clean up of the judiciary. It must avoid the lack transparency displayed by other government departments without however jeopardizing the integrity of the process because of undue publicity and inaccurate reporting.

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 August 05, 2008 12:00 AM

Relaxing the rules

Posted in Labor, Labor Law, Laws, Supreme Court Decisions by Erineus on February 18, 2009

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: jcson@pldtdsl.net

A LAW EACH DAY (Keeps Trouble Away)
By Jose C. Sison
Updated February 18, 2009 12:00 AM

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More equitable

Posted in CARP, DAR, Laws, LBP, Supreme Court Decisions by Erineus on February 12, 2009

This is another case of agricultural lands subjected to land reform. The issue arising here is the time of determination of just compensation: is it at the time of taking or at the time of payment?

The case involved 8 parcels of lands containing an aggregate area of 34.95 hectares all duly titled in the name of an agricultural cooperative (AAC). Sometime in 1972 the DAR acquired the said property under its Operation Land Transfer Program pursuant to PD 27. The properties were thereafter distributed to farmer beneficiaries who were subsequently issued certificates of land transfer and emancipation patent between the years 1978 to 1990.

However, the Land Bank of the Philippines (LBP) paid AAC for only two parcel of land on February 10, 1986 and March 3, 1987 in the total sum of P35,778.70. The other 6 parcels of rice land with an area of 28.2514 hectares remained unpaid.

On May 28, 1987, AAC sold the said properties to another cooperative (PAMC). The latter thus inquired from the LBP about the balance of payment for the six other parcels of land. LBP then sent a letter to PAMC pegging the value of the 6 remaining parcels at P 148,172. 21. The latter however refused to accept their valuation.

In the meantime, R.A. 6657 or the Comprehensive Agrarian Reform Act was signed into law on June 15, 1988. The said R.A. mandates that the LBP shall compensate the landowner in such amount as may be agreed upon by the landowner, the DAR and LBP or as may be determined by the court as just compensation taking into consideration the cost of the acquisition of the land, the current value of like properties, its nature, actual use, income, sworn valuation by the owner, the tax declarations and the assessments by government assessors.

On August 12, 1994 LBP reiterated its valuation of P148,172.21 and requested PAMC to submit some documents so that full payment could be effected. But PAMC again protested and requested for a revaluation. In October 1994 DAR issued A.O.13 imposing an increment of 6% yearly interest compounded from the date of coverage on the value of lands not yet paid. So LBP adjusted its proposed valuation by adding said increment thus increasing the amount to P537,538.34. PAMC still rejected the amount and instead subsequently filed a petition before the RTC acting as Special Agrarian Court (SAC) for the valuation and determination of just compensation pursuant to R.A. 6657.

LBP however contested the said petition contending that the said law should not be applied retroactively to this case as it did not provide for retroactive application. According to LBP, the taking of the lands in this case was deemed effected on October 21, 1972 when PD 27 took effect and when AAC was deprived of ownership over its lands in favor of farmer beneficiaries. Hence in computing the value of land for payment of just compensation, the valuation of the land at the time of the taking in 1972 pursuant to PD 27, should be made the basis. There is no injustice here since there would be an increment of 6% per annum, according to LBP. Was LBP correct?

No. Under the factual circumstances of this case, the agrarian reform process is still incomplete as the just compensation has yet to be settled. Considering the passage of R.A. 6657 before the completion of this process, the just compensation should be determined and the process concluded under said law. R.A. 6657 is the applicable law with PD 27 and its corresponding E.O. 228 having suppletory effect only. It would certainly be inequitable to determine just compensation based on the guideline provided by PD 27 and E.O. 228 considering the DAR’s failure to determine just compensation for a considerable length of time. More than 30 years have passed and the landowner is yet to benefit from it while the farmer-beneficiaries have already been harvesting its produce for the longest time. The seizure of the landholding did not take place on the date of effectivity of PD 27 but on date of payment of just compensation.

Hence it is more equitable for the SAC to determine just compensation for the reminder of the property using the values at the time of its payment and considering the full and fair equivalent of the property taken from its owner by the expropriator, equivalent being real, substantial, full and ample (LBP vs. Pacita Agricultural Multi Purpose Coop. etc. G.R. 177607, January 19, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison
Updated February 12, 2009 12:00 AM

The debt, not the debtor

Posted in Laws, Supreme Court Decisions by Erineus on February 11, 2009

What is the nature of the liability of a surety under a continuing surety agreement? Is the suretyship agreement limited only to a single transaction or does it contemplate series of transactions? These questions are answered in this case of Bobby.

The case arose from alleged acts of fraud committed by Bobby’s friend Noli, commonly known in banking circles as “kiting operation” where Bobby was also implicated as a co-conspirator together with the bank manager since his bank account was used in the transfer of funds to Noli’s bank account by way of debit and credit memos.

To cover the transaction, the bank manager suggested that Noli apply for a credit line with Bobby as surety. So Bobby signed a Continuing Surety Agreement binding himself and warranting to the bank, “the prompt payment of all overdrafts, promissory notes, letters of credit, drafts, bills of exchange and other obligations of every kind and nature for which the principal (Noli) may now be indebted or may hereafter become indebted to the creditor (bank). Bobby’s liability however was limited to P300,000 plus interest.

The credit line however did not materialize. Instead Noli subsequently executed and delivered two Promissory Notes (PN) of P150,000 each payable on July 16, 1986 and August 5, 1986 with 24% interest per annum and penalty of 1/10 of 1% per day of the total amount due from date of default until full payment.

When Noli failed to pay the obligation covered by the PNs, the bank sued him and Bobby as well as the bank manager because of the alleged acts of fraud and for failure to pay the PNs.

The RTC rendered a decision in favor of the bank. But the court initially dismissed the case against Bobby because it found that Bobby did not participate in the alleged “kiting operation” or connived with Noli in committing the alleged fraudulent acts. But on motion for reconsideration, the RTC reversed itself in so far as it dismissed the case against Bobby. Consequently Bobby was also held jointly and severally liable with Noli for P300,000 with 22% interest per annum until fully paid pursuant to the continuing surety agreement he signed.

Bobby questioned the decision rendering him liable. He argued that said continuing surety agreement was not perfected because the principal obligation, which is the credit line did not materialize. He said that he was not liable for the PNs executed by Noli because they were not yet in existence when he signed the surety agreement. Was Bobby correct?

No. The fact that Bobby signed the surety agreement prior to the execution of the PNs does not negate his liability. Of course a surety is not bound to any particular obligation until that principal obligation is born. But it does not mean that the agreement itself is not valid even before the principal obligation intended to be secured thereby is born. A bank or financing company which anticipates entering into a series of credit transactions normally requires the projected principal debtors to execute a continuing surety agreement along with their sureties. With such a surety agreement, there would be no need to execute a separate surety contract for each financing or credit accommodation extended to the principal debtor.

As surety, Bobby’s liability is joint and several. He does not insure the solvency of the debtor, but rather the debt itself. Although a surety contract is secondary to the principal obligation, the liability of the surety is direct, primary and absolute, or equivalent to that of a regular party to the undertaking. A surety becomes liable for the debt and obligation of the principal obligor even without possessing a direct or personal interest in the obligations constituted by the latter (Totanes vs. China Banking Corp. G.R. 179880, January 19, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

A LAW EACH DAY (Keeps Trouble Away)
By Jose C. Sison

Updated February 11, 2009 12:00 AM