Saturday, December 31, 2011

Happy New Year!

I barely noticed it: 50 posts and 4,629 pageviews later, we're ushering another year – the Dragon year, according to the Chinese calendar. Let me pause to thank those who have supported this humble blog: Gina, my loving and lovely wife; my brother Joel; Tiara, my sis in the PSD sorority; brod Gilbeys; JTA, my classmate; Elma, friend and staff; and fellow blogger, Bay of 1k4tribike.

Thank you, fellow netizens around the world who have stumbled into my blog; I hope the articles have helped you understand or led you to discover whatever it was that you were looking for, particularly on matters involving Philippine law. Should there be some mistakes, I apologize – the responsibility is purely mine.

Thanks for bearing with my personal and random musings about family life, travels, literature and whatnot. I hope you somehow found them useful, amusing, even both.

I wish you all the best of this Season! Have a safe and happy new year. Cheers for a better year ahead!         

Monday, December 26, 2011

Of natural calamities, laws and political will: The typhoon Sendong story

The typhoon “Sendong” story in Cagayan de Oro -- that tragically claimed, as of last count, at least a thousand lives -- has become a cyclical phenomenon throughout the country for the past decade: Ormoc, Aurora, even Marikina, to name a few. 

Most of the victims were squatters living along the Cagayan de Oro riverbanks. According to Antonio Montalvan II, a Cagayanon born and bred:

“The alluvial plains—huge swaths of land that lie on the riverbanks—became a magnet for informal settlers over the last 20 years. And what started as a small delta has grown over the years from continuous siltation.

That is the island now known as Isla de Oro, heavily populated for the last 20 years but nothing but a bar of silt and sand.

xxx

And yet the city government allowed the informal settlers to mushroom.” (http://newsinfo.inquirer.net/116425/we-had-been-warned-of-cagayan-rivers-fury)

On the other hand, reacting to such tragedies, Senator Manny Villar filed recently a bill banning the construction of houses along the waterways, including riverbanks. (Villar files bill banning houses along waterways. Philippine Star, December 23, 2011.)

I suggest that Republic Act (RA) No. 7279, or the “Urban Development and Housing Act of 1992,” be revisited by the good Senator and the concerned local government officials.

RA 7279 contains the following provisions:

Sec.  29. Resettlement. — Within two (2) years from the effectivity of this Act, the local government units, in coordination with the National Housing Authority, shall implement the relocation and resettlement of persons living in danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and in other public places as sidewalks, roads, parks, and playgrounds. The local government unit, in coordination with the National Housing Authority, shall provide relocation or resettlement sites with basic services and facilities and access to employment and livelihood opportunities sufficient to meet the basic needs of the affected families. 

Sec.  30. Prohibition Against New Illegal Structures. — It shall be unlawful for any person to construct any structure in areas mentioned in the preceding section

After the effectivity of this Act, the barangay, municipal or city government units shall prevent the construction of any kind of illegal dwelling units of structures within their respective localities. The head of any local government unit concerned who allows, abets or otherwise tolerates the construction of any structure in violation of this section shall be liable to administrative sanctions under existing laws and to penal sanctions provided for in this Act

Sec.  45. Penalty Clause. — Any person who violates any provision of this Act shall be imposed the penalty of not more than six (6) years of imprisonment or a fine of not less than Five thousand pesos (P5,000) but not more than One hundred thousand pesos (P100,000), or both, at the discretion of the court: Provided, That, if the offender is a corporation, partnership, association or other juridical entity, the penalty shall be imposed on the officer or officers of said corporation, partnership, association or juridical entity who caused the violation. 

Moreover, Section 2 of the “Implementing Rules and Regulations Governing Summary Eviction” of RA 7279, states:

Section 2. Coverage. – the following shall be subject for summary eviction:

1.0 New squatter families whose structures were built after the effectivity of RA 7279; and

2.0 Squatter families identified by the LGU in cooperation with Presidential Commission of the Urban Poor (PCUP), Philippine National Police (PNP) and accredited Urban Poor Organization as professional squatters or members of squatting syndicates as defined in the Act.

Applying the Implementing Rules, the appellate court, in the case of Hinacay, et. al. vs. Muntinlupa, et. al (CA-G.R. SP No. 80496) -- a case that appears not to have been elevated to the Supreme Court -- held, to wit:

“Petitioners failed to show that they are not “new squatters.” All they say is that they are occupants of the property “for a long period of time,” but fail to state the exact date of the start of their occupation.

Hence, they fall under the category of “new squatters”. As such, they are not entitled to the protection of RA 7279 and in fact should be subjected to summary eviction.

Petitioners’ houses may be demolished and they may be evicted from the land without need of an ejectment case.”

Thus, all it takes, perhaps, is sheer political will coupled with social justice, to prevent the unnecessary loss of lives of the poor and the downtrodden – and not an additional bill.

Sunday, November 27, 2011

A comprehensive cyberspace law as an incontrovertible necessity in the Philippines

In 1999, as a law student, I co-authored a legal paper calling for the enactment of a comprehensive cyberspace law in the Philippines. There were just a handful of email services at that time, ICQ was the social networking site aside from the IRC, the bandwidth was inadequate to support fast video streaming, and you had to dial for access using a noisy modem. Despite the explosion on Internet usage and uses and tremendous increase of Web-users in the Philippines since then, such a law has yet to be enacted. The following excerpts serve as the paper's conclusion:

"From the discussion of evolution and continuing development of the Internet and the exponential growth of services and information provided online, this study has shown that there exist compelling reasons for legislative reform and extra-statutory measures.  While in other jurisdictions, especially in technologically advanced countries with heavier dependence on the Internet, “cyberspace law” has gained recognition as a field in itself, in the Philippines, this has yet to happen.

In October 26, 1998, President Joseph Ejercito Estrada signed Executive Orders No. 34 and No. 35, both seeking to commence action on the part of government to keep in step with the information revolution.  Executive Order No. 34 directs the National Computer Center (NCC) to design and build an integrated Government Information Infrastructure (GII), presumably in the same, if not downscaled, mold as the United States’ National Information Infrastructure.  Executive Order No. 35 provides for the restructuring of the National Computer Center, as the central executive agency that will oversee the coordination and integration of government policies, programs and projects relating to the information infrastructure. 

While laudable in intent and principle, these measures may be endangered by the inaction of government in dealing with computer and Internet abuse.  The acts here discussed – hacking, the sending of viruses, and spamming and email overflow – already pose as threats to the GII, even before it is formally set up.  Without decisive and swift action by government, particularly in the field of legislative reform, the technological advancement envisioned may actually be a disastrous step into backwardness.  At present, even without the GII, domestic hacking, creation and sending of viruses, and spamming are prevalent.  With the GII, government records and data, including confidential and sensitive information relating to national security and state programs, are likewise exposed to danger if measures to prevent and respond to abuse are not in place.

In the meantime, pending legislative reform, this study has sought to provide alternative means of penalizing hackers and crackers, disseminators of viruses and other malicious code, and spammers, whether criminally or civilly.  It has been shown that these are not traditional crimes and can not thus be adequately analogized and penalized as such.  As to civil actions, substantive law might be adequate, in the sense that the elements of actionable conduct are fulfilled.  However, perhaps an even greater challenge is hurdling problems that may be encountered procedurally, such as the acquisition of jurisdiction, the admissibility of electronic and digital information as evidence, and other considerations, which if unresolved, could ultimately defeat a civil or criminal action or recoverability of damages.

Legislative reform and other domestic measures must also be resorted to alongside trans-border efforts to penalize Internet abuses.  This is a necessary consequence of the “borderless” nature of the Internet itself.  International cooperation will have to be forged to effectively respond to rising incidence of criminality and tortious acts on the Internet.  Such international cooperation will have to include not only governments, but the private sector as well.  Government regulation on the Internet has received much resistance from sectors who believe that regulation will impede further advancements on the Internet.  However, the Internet has proven to be a new arena for conflict, where interests are asserted and threatened – without some form of regulation, how will interests be allocated and rights protected?

The recognition of government that the Internet is such an arena, and that it is in the interest of the State to treat it as such, constitutes the single most important initial step in dealing with Internet abuse."

To date, apart from E-Commerce Law and Cybercrime Prevention Act, no pro-active and up-to-date law on cyberspace and the Internet has been enacted, 17 years since the Philippines became a member of the National Science Foundation Network (NSFNET) -- in 1994. It's about time.  

Monday, November 7, 2011

Our kids abroad: Part I (Macau, HK, Shanghai and Beijing)

We had our first family trip out of the country in 2006 when Vito was 3 years old and Manu was 2 years old. We planned to go to Hong Kong via Macau so Gina and I decided that we might as well try to visit some notable places there that we thought would be interesting to kids, such as the Macau Tower, Macau Grand Prix Museum, St. Paul’s ruins and a nearby museum (that used to be a fort with its old cannons still intact and overlooking Macau), and also such other places beyond the regular tourists’ radar (e.g., a park with huge rocks dotted with literary verses; a fireman’s museum). We varied our meals by eating/buying food among Western restaurants and fast food joints, convenience stores, and local eateries.

On top of the Macau Tower

After 2 nights in Macau, we took a hydrofoil to HK. Carrying 2 toddlers who would fight for a stroller (that I picked up in a store in Macau) owing to long walks, we took the usual “safe” and kid-friendly itineraries, like Disneyland, Ocean Park, Victoria Peak, Aberdeen Harbour, and HK Space Museum; watched the Symphony of Lights, strolled at the Avenue of Stars, and shopped a bit at Harbour City; and simply enjoyed the nippy weather of HK in December.
 
Inside the HK Space Museum

When we went out of the country in 2008, again during another Christmas break, we traveled to Shanghai and Beijing. While in Shanghai, we toured both sides of the Bund, the French Concession/Xintiandi, went to the Shanghai Science and Technology Museum, rode the Maglev train, watched acrobatic shows, among others. After the first day with a free tour, we went around the city by ourselves, either by walking or taking the subway/taxi.

Waking up early in the morning, after celebrating a very silent New Year's eve in Shanghai (not a single fireworks/firecracker was heard), we took a shuttle to the Pudong International Airport for our trip to Beijing.

Onboard the Maglev train hurtling at a maximum speed of 431 km/hr

Again, as we considered these early forays as mere exploratory trips in preparation for, hopefully, more in depth and longer travels in the future, and with due consideration of our modest budget, we had a whirlwind tour of the Forbidden City, the Great Wall, the Olympics stadiums, and Beihai Park. We skated on the frozen Beihai Lake, had the famous roast duck for a late dinner in a restaurant off Wangfujing St. (a street well known for exotic dishes), and bought unusually succulent, sweet boiled corn on the cob sold by an elderly lady in front of Day’s Inn Hotel. We were lucky that Vito’s Ninong (Godfather) Lester, who was then finishing his master of laws at Tsinghua University, gladly served as our guide.

At the Juyongguan section of the Great Wall

In 2009, we were fortunate to visit Singapore (on a whim). There, I met 2 classmates from UP Law, JT and Hazel, who were doing extremely well as expat lawyers. And in March this year, we went back to HK with Nanay and the 2 kids (who have sprung up in heights) in tow -- they both received excellent academic awards during their school’s moving up ceremonies. Allow me to share the details next posting.

Meanwhile, our itinerant feet are getting itchy again...

Saturday, October 29, 2011

The relationship test and the nature of the controversy test in determining intra-corporate disputes

In the landmark case of STRADEC vs. SIDC, et. al. (GR No. 187872), the Supreme Court has modified and modernized the test in determining intra-corporate disputes by applying both the relationship test and the nature of the controversy test.

The ruling states that, “an intra-corporate dispute is understood as a suit arising from intra-corporate relations or between or among stockholders or between any or all of them and the corporation. Applying what has come to be known as the relationship test, it has been held that the types of actions embraced by the foregoing definition include the following suits: (a) between the corporation, partnership or association and the public; (b) between the corporation, partnership or association and its stockholders, partners, members, or officers; (c) between the corporation, partnership or association and the State insofar as its franchise, permit or license to operate is concerned; and, (d) among the stockholders, partners or associates themselves.”

On the other hand, it declares that, “Under the nature of the controversy test, the dispute must not only be rooted in the existence of an intra-corporate relationship, but must also refer to the enforcement of the parties' correlative rights and obligations under the Corporation Code as well as the internal and intra-corporate regulatory rules of the corporation.”

According to the Supreme Court, the combined application of the relationship test and the nature of the controversy test has, consequently, become the norm in determining whether a case is an intra-corporate controversy or is purely civil in character.

By applying the relationship test, the Supreme Court finds in STRADEC case “that the first and second causes of action qualify as intra-corporate disputes since STRADEC and respondent Wong are incorporators and/or stockholders of SIDC.” And “considering that they fundamentally relate to STRADEC’s status as a stockholder and the alleged fraudulent divestment of its stockholding in SIDC, the same causes of action also qualify as intra-corporate disputes under the nature of the controversy test.”

Hence, combining both tests then, the Supreme Court declares that “STRADEC’s causes of action for the nullification of the loan and pledge over its SIDC shareholdings contracted by respondents Yujuico and Sumbilla as well as the avoidance of the notarial sale conducted by respondent Raymond M. Caraos both qualify as intra-corporate disputes.”

Thursday, October 13, 2011

Thinking of buying leasehold rights or subleasing real property in Subic Bay Freeport Zone?

When buying leasehold rights or leasing real properties from locators and individuals inside the Subic Bay Freeport Zone (SBFZ), “caveat emptor.” Let the buyer beware.

The Freeport is governed by a special law, Republic Act No. 7227, as amended; its implementing rules and regulations; as well as a relatively new set of rules entitled “Resident’s Handbook.”

A property being offered for transfer or sublease should have been duly approved for lease/assignment by the Subic Bay Metropolitan Authority (SBMA) board of directors. The properly signed lease agreement or deed of assignment must have been registered at the SBMA Registry Office. The subject property must also be checked whether it has unpaid accounts with the SBMA, or utility firms such as Enerzone, Subicwater and Subictel.

To be accorded legal effect especially insofar as SBMA and third parties are concerned, the succeeding deed of assignment or sublease agreement should be submitted to the SBMA for approval and registration; and the latter’s share from the total purchase price properly accounted and remitted to it. When applicable, no taxes would be assessed and paid from the transaction.

It is because RA 7227 provides that:

"(c) The provisions of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the base areas.

In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic Zone, the same shall be resolved in favor of the latter." (Section 12)

For that matter, the would-be assignor/sublessor must guarantee to the buyer/sublessee the following:

1. That it is not in default in its agreement with SBMA;
2. That it shall pay SBMA its due share from the total consideration of the agreement;
3. That it shall submit to SBMA a certified true copy of the deed of assignment/sublease agreement within five (5) days from its execution; and
4. That it shall pay in full the balance stipulated in the terms of its lease agreement, upon execution of the deed of assignment/sublease agreement.

Finally, it is important to remember that the original Lease Agreement between the locator/individual and the SBMA is always considered to be integral to the succeeding deed of assignment/sublease.

Thursday, September 29, 2011

Some Salient Points of “The Rules of Procedure for Environmental Cases”

A 600 MW coal power plant threatening to rise across the bay, beaches that seem to get dirtier everyday, toppling of huge, old trees by rain and wind, unusual flooding even in elevated areas – these are some environmental concerns that residents and locators in Subic Bay Freeport have begun to contend with, the latter two having been exposed by super-typhoon Pedring. The manner by which natural resources and the environment are being utilized and managed binds these issues together, calling for a closer scrutiny, if not outright, decisive action.

Brushing up a bit on the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC), that became effective starting 29 April 2010, could come in handy, especially now.

The Rules have the following objectives, to wit:

(a) To protect and advance the constitutional right of the people to a balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements;
(c) To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and judgments in environmental cases. (Section 3, Rule I)

These Rules govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following:

(a) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes;
(i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground;
(j) R.A. No. 4850, Laguna Lake Development Authority Act;
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
(l) R.A. No. 7076, People’s Small-Scale Mining Act;
(m) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste Management Act;
(t) R.A. No. 9072, National Caves and Cave Resource Management Act;
(u) R.A. No. 9147, Wildlife Conservation and Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and
(y) Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. (Section 2, Rule I)

Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. (Section 5, Rule II)

"Continuing mandamus" is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. (Section 4 [c], Rule I)

"Environmental protection order (EPO)" refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. (Section 4 [d], Rule I)

"Strategic lawsuit against public participation (SLAPP)" refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. (Section 4 [g], Rule I)

According to the Supreme Court, these Rules are the first of its kind in the world.

Sunday, September 18, 2011

The controversial RTC judge and the matter of injunction and territorial jurisdiction in criminal cases

"Controversial Pasig City Regional Trial Court (RTC) Branch 167 presiding judge Rolando Mislang has submitted his compliance to the Supreme Court's (SC) Office of the Court Administrator (OCA) order for him to explain his issuance of 2 temporary restraining orders (TRO) that halted preliminary investigation proceedings and the filing of information in a criminal case for syndicated estafa against Globe Asiatique (GA) Realty Holding Corporation's Delfin Lee.

In a 5-page letter-compliance addressed to Court Administrator Jose Midas Marquez, Mislang stressed the existence of a "prejudicial question" that warranted his issuance of the TROs." (http://www.abs-cbnnews.com/business/09/16/11/judge-mislang-defends-tro-ga-case)

Let us revisit then the Philippine Rules of Court and pertinent jurisprudence. The Rules of Court defines preliminary injunction as “an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction.” (Section 1, Rule 58)

The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can be heard fully. (Medina vs. Greenfield Development Corporation, 443 SCRA 150, 159).

To be entitled to injunction, plaintiff must be able to convincingly show that he is entitled to it; he has a right in esse, meaning it is present, clear and positive; it is neither future nor contingent; the act sought to be prevented or restrained would work grave, irreparable injury and great injustice upon plaintiff; and equity rests with him.

It has been settled that there is a limitation on the territorial reach of injunctions issued by the trial courts. Thus, in a recent case, the Supreme Court ruled that “respondent judge had no authority to issue a writ of preliminary injunction enjoining acts performed outside his territorial jurisdiction. Respondent judge should have known that the injunctive writs he issued were enforceable only within his territorial jurisdiction, or any part, of the Third Judicial Region. In Civil Case No. 153-0-2006, the writ of injunction, which respondent judge issued, was directed against complainant, the Secretary and the Acting Deputy Customs Commissioner for Administration whose offices in Manila are outside the territorial jurisdiction of the Regional Trial Court of Olongapo City.” (A.M. No. RTJ-07-2064. June 26, 2009)

Also, as a general rule, writ of injunction is not available in criminal cases. But this is subject to exceptions: e.g., when there is a prejudicial question which is sub judice; when the court has no jurisdiction; to afford adequate protection to the constitutional rights of the accused; when necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits; when double jeopardy is apparent; etc. (See Florenz Regalado. Remedial Law Compendium, Vol. II.)

With respect to prejudicial question, it “generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.” (Sps. Jose vs. Sps. Suarez. G.R. No. 176795, June 30, 2008)

Tuesday, August 30, 2011

The Upgraded (2012) Hyundai Santa Fe

The family recently purchased the upgraded Hyundai Santa Fe and couldn’t be happier with its performance and comfort, particularly the two futsal players in the house. Our 2007 Kia Carens though still dutifully rendering efficient service, is already showing a few signs of ageing, so it definitely welcomes some help.

Powered by a 2.2 liter CRDI engine, equipped with the electronic variable geometry turbo system called R-eVGT, the brown metallic 2WD Santa Fe is easy to steer, quite fast from the get-go, cruises smoothly and quietly, and brakes strongly but gently. While still in the “break-in” phase, the power of Santa Fe is palpable even as it averages 7.7L-10L/100km for mixed Freeport and SCTEX driving.

But first a disclaimer: I am no techie, much less a car expert, so this is purely anecdotal even as I borrow the technical jargons from the websites of Topgear-Phils., Autoindustriya.com, the Philippine Daily Inquirer as well as Korean and Australian news agencies.

With its wide girth, the boys do not have to fight for space in the second row and they can be separated by two cupholders right down the middle. There are airvents on both sides, so does the third row. While it's relatively tall, the boys can easily get in and out of the Santa Fe.

We are still learning about its features and so far, the boys enjoy the NAVSAT capabilities of the Santa Fe (even if it just involves the distance from the house to school and vice-versa most of the time), the automatic wipers that adjust as the rain beats even harder, and the cooler right between the front seats. The touch-screen monitor also doubles as a reverse camera for easier and safer parking, while the side mirrors with signal repeaters fold with the push of a button.

According to the news, the 2012 model year upgrade for Santa Fe, “comprises a number of cosmetic enhancements both inside and out, led by the addition of silver ‘skid plates’ for the front and rear bumpers." The “refreshed seven-seat crossover also features a new chromed grille with ‘floating’ Hyundai badge, revised headlights, high-gloss black (instead of silver) roof rails.”

No mechanical changes are part of the MY2012 upgrade though. Its “R-eVGT 2.2 liter twin-cam 16-valve engine that delivers 197ps and 44.5kg/m of wall-climbing torque,” remains. It still “sports the latest electronically controlled variable geometry turbine technology and piezzo-electric crystal injectors offering precise fuel metering regardless of engine speed. Its Bosch-developed CRDi system is mated to an all-new, more compact, lighter 6-speed automatic transmission (AT) that offers a wider range of ratios and better mechanical efficiency than the outgoing 5-speed AT.” We're fine with it.

Certainly then the Santa Fe is an ideal CUV for a family with two smart and peripatetic young fellows bursting with energy. Hopefully, it will serve us in good stead for countless family adventures to come.

Sunday, August 21, 2011

The role of the Solicitor General and its relationship with client-agencies

Lately, there have been news about the contradictory positions of the Philippine Securities and Exchange Commission (SEC) and the Office of the Solicitor General concerning the definition of capital for purposes of determining the shares of stocks held by foreigners, leading to testy exchanges between the officials of the two government agencies. Earlier, the Supreme Court declared that the term "capital" under Section 11, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of directors, i.e., common shares, and not to the total outstanding, capital stock, i.e., both common and non-voting preferred shares, in the case of the ownership of PLDT. (See http://sc.judiciary.gov.ph/jurisprudence/2011/june2011/176579.html)

According to SEC, the SolGen did not adopt its stand that capital must refer to the total outstanding, capital stock. The SolGen agreed with the Supreme Court. Based on the news, SEC would want to remove the SolGen as its counsel and handle the case on its own, or with the help of the Office of the Government Corporate Counsel (OGCC). The question then is, can a government agency like the SEC fire SolGen as its counsel owing to alleged differences with its stand?

The case of Comelec vs. Quijano-Padilla (G. R. No. 151992) comes to mind. There the Supreme Court adroitly explained the relationship between the SolGen and its client agency, thus:

“PHOTOKINA alleges that the OSG has no standing to file the present petition since its legal position is contrary to that espoused by the majority of the COMELEC Commissioners. This is a leap to a non-sequitur conclusion. The OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest of the government is upheld. This is regardless of the fact that what it perceived as the “best interest of the government” runs counter to its client agency’s position. Endowed with a broad perspective that spans the legal interest of virtually the entire government officialdom, the OSG may transcend the parochial concerns of a particular client agency and instead, promote and protect the public weal. Our ruling in Orbos vs. Civil Service Commission, is relevant, thus:

"x x x It is incumbent upon him (Solicitor General) to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a client’s position. x x x.

"In the present case, it appears that after the Solicitor General studied the issues he found merit in the cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to represent the petitioner as he did by filing this petition. He cannot be disqualified from appearing for the petitioner even if in so doing his representation runs against the interests of the CSC.

"This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients like the CSC, the National Labor Relations Commission, among others, and even the People of the Philippines. x x x”

Hence, while petitioners’ stand is contrary to that of the majority of the Commissioners, still, the OSG may represent the COMELEC as long as in its assessment, such would be for the best interest of the government. For, indeed, in the final analysis, the client of the OSG is not the agency but no less than the Republic of the Philippines in whom the plenum of sovereignty resides.”

Thursday, August 18, 2011

Is mandamus an appropriate remedy to enforce government contracts?

Will a petition for mandamus be the appropriate remedy to enforce contractual obligations?

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest. The writ is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution. As the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or station. (Uy Kiao Eng vs. Nixon Lee, G.R. No. 176831, January 15, 2010)

As a universally accepted rule, mandamus never lies to enforce the performance of contractual obligations. But it has also been held that such rule was not really absolute. So long as there is a showing of a complete, well-defined and clear legal right on the part of the petitioner to the performance of ministerial acts, the same may be enforced by mandamus. (Vda. de Serra vs. Salas, 30 SCRA 541)

Thus, where government contracts are completely performed on the part of the private party, an officer of a corporation may be compelled to perform a duty imposed upon him by law, particularly when the act of said officer has the effect of setting aside contracts already in the process of consummation. In other words, mandamus will lie only to compel the performance of a ministerial duty. (Isada vs. Bocar, G.R. No. L-33535 January 17, 1975)

Monday, August 1, 2011

Narra-logy (isang pagtatangka)

Salamat sa pagkupkop mo sa aming
Kung saan-sang dako pa ng ‘Pinas galing
Sa loob ng maraming taon bahay kang itinuring
Humubog sa pagkatao’t kamalayan ay ginising.

Dito nakatagpo ng mga kaibigang tunay
‘Di ka huhusgahan, handa laging dumamay
Anuman ang estado, anuman ang ‘yong kulay
Sa iisang bubong, sama-samang namumuhay.

Dito kahit walang pera’y di ka magugutom
Nandyan si Aling Lina, handa laging tumulong
Ibabahagi ng corridor-mates kanilang mga baon
Pagkagaling sa probinsya’y may dala pang pasalubong.

Dito P175 lang ang rent na monthly
Mayroon pang antique na ref at TV sa lobby
Nandyan si Popo kung gusto mo ng debate
O tyempuhan si Bading na may kasamang estudyante.

Sarado ang mga kwarto kapag may “open house”
Paborito sa betamax ang seryeng “Debbie Does…”
Dayaan sa larong “red dog” inaabot ng dis-oras
Gilbey’s-asin o Tanduay-Coke siguradong may amats.

Hanggang isang balita ang sa akin ay gumulantang
Ikaw daw ay nasunog, ‘di na titirahan
Isang hapong galing sa miting pilit kitang dinaanan
Kalunos-lunos na nga ang ‘yong kalagayan.

Ngayon nga’y target ka na ng demolisyon
Mga alaala na lamang tanging konsolasyon
Sana’y bigyang halaga ka, gawaran ng rekognisyon
Sa kasaysayan ng Pamantasan tunay kang institusyon!

Saturday, July 30, 2011

Sample Procedure in the Conduct of Administrative Investigation – Private Corporations

1. Acts and omissions by employees meriting administrative action, under the company’s code for employee discipline, must be reported immediately and formally to the concerned employee’s immediate superior.

2. The immediate superior of the reported employee will review, study and validate the report submitted to him.

3. After establishing the validity of the submitted report, the immediate superior must endorse the same to the Department Manager, if applicable. Evidence such as affidavits, photographs and documents supporting the report, must be included.

4. The Department Manager, after a thorough evaluation and as may be deemed proper, must refer the matter to the proper disciplinary/investigating authority of the company.

4. The disciplinary authority must immediately issue a Notice to Explain (NTE) to the reported employee stating clearly the charges, purpose, reason and basis of such. It must also determine whether or not the case merits preventive suspension. If so, the NTE may include the order of preventive suspension.

5. The employee must submit his written response to the disciplinary authority within the allowable time provided as stated in NTE. If the penalty is termination, the period to answer must be at least 5 days. If the penalty is from reprimand to suspension, less than 5 days will suffice.

6. When the penalty is termination, there must always be a hearing scheduled for the purpose.

7. Upon receipt of the employee’s written explanation, and after hearing (in case of termination), the disciplinary authority will make the decision either to excuse or impose disciplinary action (DA) on the reported employee. The basis of their decision must always be in consonance with Philippine labor laws (i.e., just causes) and the code of discipline.

7. Should the disciplinary authority impose the DA, the decision will be issued to the reported employee, and explained to him or her. The decision must show that all circumstances have been considered and the grounds have been established to justify the penalty.

8. Where the disciplinary authority excuses the imposition of DA, the employee will receive a copy of the decision.

Sale of property without consideration is void ab initio; imprescriptible

In a case, the Supreme Court upheld the findings of the trial court, affirmed by the Court of Appeals, that the Deed of Absolute Sale executed between respondent and petitioner was simulated and fictitious, and therefore, did not convey title over the subject property to petitioner. Apparently, respondent was convinced by petitioner to sign the said deed of sale because it was intended to be a mere proposal subject to the approval of the trial court wherein the proceedings for the settlement of the estate owning the property was still pending. The Supreme Court also agreed to the observation that the deed lacked consideration because respondent never received the stipulated purchase price for the subject property.

According to the Supreme Court, a sale that lacks consideration is void from the beginning and produces no legal effect. The right to declare it as such does not prescribe either:

It is a well-entrenched rule that where the deed of sale states that the purchase price has been paid but in fact has never been paid, the deed of sale is null and void ab initio for lack of consideration. Moreover, Article 1471 of the Civil Code, provides that “if the price is simulated, the sale is void,” which applies to the instant case, since the price purportedly paid as indicated in the contract of sale was simulated for no payment was actually made.

Since it was well established that the Deed of Sale is simulated and, therefore void, petitioners’ claim that respondent's cause of action is one for annulment of contract, which already prescribed, is unavailing, because only voidable contracts may be annulled. On the other hand, respondent's defense for the declaration of the inexistence of the contract does not prescribe. (Please see Catindig vs. Vda de Meneses, GR No. 165851/Roxas Sr. vs. CA, GR No. 168875, 02 February 2011)

Saturday, July 16, 2011

Where to borrow money (for local government units) – the Municipal Development Fund

Some Philippine cities, provinces and towns may not be aware of this, but there is a special law (PD 1914), establishing the Municipal Development Fund (MDF) as a revolving fund made available for the local government units. Initially capitalized and funded by proceeds of foreign loans, assistance or grants, the amortizations of LGUs accrue to MDF and made available for re-lending for LGU projects.

The Fund may be used for the following:

1. Public Economic Enterprise/ Revenue Generating Projects such as public market, trading post (bagsakan center), slaughterhouses, land transportation terminals, municipal wharves and fish ports, dry port, sea port, cargo port, barge, roll-on roll-off (Ro-RO), airport strip, post harvest facilities, cold storage facilities, ice plants, public memorial parks, water supply level III, toll roads, local electrification such as mini-hydro electric power plant, wind power and solar energy, income generating policy reform-related initiatives (i.e. RPTA computerization, one-stop shop taxpayers system, etc.), cemetery, crematorium, columbarium, funeral services, microfinance and livelihood projects, food processing facility, OTOP Programs, commercial centers and other public economic enterprise/revenue generating projects, breeding station, agro-industrial facilities, establishment of seed farm and seed banks, purchase of fries and fingerlings, solar dryer, and other related facilities and equipment.

2. Social and Environmental Projects such as water supply, health centers, lying-in clinics and hospitals, nursery, day care center, orphanage/ home for the aged facilities, school buildings, public library and information centers, communal irrigation, farm-to-market roads, rural roads and bridges, municipal hall, policy reform-related initiatives (computerization programs such as of Financial Management Information System, Community-Based Information and Monitoring System, etc.), training center, non-formal education facility, sports complex, gymnasium, basketball court, housing project, traffic management systems, multi-purpose pavement, and other related facilities and equipment; reforestation, forest-related activities, soil conservation, mangrove and watershed protection, river and seashore protection, ecotourism project, freedom parks, reforestation and agro-forestry, watershed protection, and biodiversity conservation and other related facilities and equipment.

3. Solid Waste Management Facilities including materials recovery facilities, recycling plant, sanitary landfills, drainage system, sewerage and sanitation support facilities, waste water treatment facility, public sanitary toilets, waste-to-energy facilities, septage management and other related facilities and equipment.

An interested LGU must be able to show its net borrowing capacity and must be prepared with a project or feasibility study.

Maximum repayment period is 20 years, and total interest rates hover between 6%-8% depending on the LGU category. The Fund is available for full cost financing and provides free technical assistance.

Sunday, July 10, 2011

Of eviction and demolition: A tale of 2 cities and RA 7279

The recent news about the mayor of Davao City raining fists and fury on a hapless sheriff because of his refusal to wait for “Inday Sara” Duterte to arrive before ordering the demolition of the houses in a shanty town brought flurries of comments and reactions both negative and positive. The demolition was made due to a court order.

On the other end of the spectrum, this brings to mind the summary (sans court order) demolition of houses in a private compound in Makati City with the blessings, so it would appear from the news, of the mayor, Junjun Binay. He reportedly even had an altercation with the DILG secretary, Jesse Robredo. The demolition was enforced days after a raging fire engulfed the compound. It happened a few months ago and also elicited various reactions and criticisms.

Since most if not all the affected people were poor and underprivileged, is there a special law that addresses the matter of their eviction and the demolition of their houses?

Yes, it is Republic Act (RA) 7279, or the Urban Development and Housing Act of 1992. Under this law, demolition is a last recourse:

“Sec. 28. Eviction and Demolition. — Eviction or demolition as a practice shall be discouraged. Eviction or demolition, however, may be allowed under the following situations:

(a) When persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks, and playgrounds;

(b) When government infrastructure projects with available funding are about to be implemented; or

(c) When there is a court order for eviction and demolition.

In the execution of eviction or demolition orders involving underprivileged and homeless citizens, the following shall be mandatory:

(1) Notice upon the effected persons or entities at least thirty (30) days prior to the date of eviction or demolition;

(2) Adequate consultations on the matter of settlement with the duly designated representatives of the families to be resettled and the affected communities in the areas where they are to be relocated;

(3) Presence of local government officials or their representatives during eviction or demolition;

(4) Proper identification of all persons taking part in the demolition;

(5) Execution of eviction or demolition only during regular office hours from Mondays to Fridays and during good weather, unless the affected families consent otherwise;

(6) No use of heavy equipment for demolition except for structures that are permanent and of concrete materials;

(7) Proper uniforms for members of the Philippine National Police who shall occupy the first line of law enforcement and observe proper disturbance control procedures; and

(8) Adequate relocation, whether temporary or permanent: Provided, however, That in cases of eviction and demolition pursuant to a court order involving underprivileged and homeless citizens, relocation shall be undertaken by the local government unit concerned and the National Housing Authority with the assistance of other government agencies within forty-five (45) days from service of notice of final judgment by the court, after which period the said order shall be executed: Provided, further, That should relocation not be possible within the said period, financial assistance in the amount equivalent to the prevailing minimum daily wage multiplied by sixty (60) days shall be extended to the affected families by the local government unit concerned.”

According to the law’s implementing rules, “Any person or group identified as professional squatter and squatting syndicates shall be summarily evicted and their dwellings or structures demolished…” Also included are "new squatter families" whose structures were built after the effectivity of RA 7279.

It is important to remember that violation of this law carries a penalty of not more than six (6) years of imprisonment or a fine of not less than Five thousand pesos (P5,000) but not more than One hundred thousand pesos (P100,000), or both, at the discretion of the court.

Saturday, June 25, 2011

For my wife on our 8th year anniversary

It was also raining so hard like this
when I first laid my eyes on you –
a picture of a serene, refined woman
seemingly unperturbed by my pretentiousness
and awkward preening.

Which kept me guessing.
And yearning.

You were sunbeams peeking through
the dark clouds of my existence, and the gnawing
misgivings slowly turned to ease
and desire to please you.

You were amihan winds bringing warmth
and caress to my soul, driving away both
precipitations and trepidations.

Eight years hence, how could I not remember,
when you remain the light of my life,
the anchor of my dreams,
the warm breeze banishing away all the pains?

Seasons have changed so many times
since that momentous rainy day;
one thing remains constant,
pure and crystal-clear:
I love you, Ginababe,
with all my heart,
my destiny,
from here towards the infinity.

Sunday, June 12, 2011

The difference between RP-US Mutual Defense Treaty and Japan-US Security Treaty: Or why the US would not help the Philippines in case of a shooting war versus China

According to a Philippine Daily Inquirer news report, the United States said it will not side with any party in the Spratlys conflict. “The US does not take sides in regional territorial disputes,” the US press attaché Rebecca Thompson said in an e-mailed statement when contacted for comment to deputy presidential spokesperson Abigail Valte’s invoking of the 60-year-old Mutual Defense Treaty (MDT). So sorry, Philippines.

On the other hand, previously the US has categorically declared that the Diaoyu/Senkaku Islands, being claimed by China, Japan and Taiwan, fell under the US-Japan Security Alliance. Thus, it said technically, the US would be obliged to bail Japan out if there were a fight over the Senkakus even if the US doesn’t take a position on who owns the islands. According to the reports, the Japan-U.S. security treaty specifies that the US will help defend areas that Japan administers. (Eurasia Review and NY Times)

Let us check then the two treaties and watch out for the differences on the carefully tended phraseology:

Japan-US Security Treaty (19 January 1960) -

Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations in accordance with the provisions of Article 51 of the Charter. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. (Article V)

RP-US Mutual Defense Treaty (30 August 1951) –

Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. (Article IV)

For purposes of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific. (Article V)

Note that while the US agreed for Japan to administer the Senkakus according to the said reports, there was no such agreement between the Philippines and the US on the Spratly islands. Observe that the MTD is likewise Pacific-centric and tends to favor the country with substantial interests over it. Carlos Romulo, Joaquin Elizalde, Vicente Francisco and Diosdado Macapagal signed the MTD for and on behalf of the Philippines.

The rights of the child and the schools' duties and obligations under the law

It would be safe to presume that we are all equally and reasonably concerned with the welfare and safety of our minor children as the classes open for this school year. Next to the quality of education, unsafe school premises and activities, abusive teachers and school bullies, may just be some concerns on top of our minds as our children bid us goodbye and lug their heavy trolley bags to the school gate. Fortunate are we if these concerns would later turn out to be mere phantoms, and come moving up day, we breathe a sigh of relief.

Three laws may very well assuage us of our niggling concerns. You may take a look at the following:

1. Special Protection of Children Against Abuse, Exploitation and Discrimination Act (RA 7610);

2. The Child and Youth Welfare Code (PD 603); and

3. The Family Code (EO 209)

RA 7610 defines "children" as persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

It also categorizes "child abuse" as the maltreatment, whether habitual or not, of the child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

Cruelty against or humiliation of the child as defined under PD 603 is punishable by prision mayor in its minimum period.

The Family Code (EO 209) tackles substitute and special parental authority of the school, its administrators and teachers over the children and their corresponding civil liabilities.

The Family Code provides that, “The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.” Such authority and responsibility “shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution.”

Accordingly, those given the authority and responsibility shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable.

However, such liabilities would cease and shall not apply if it is proved that the school, its administrators and teachers exercise the proper diligence required under the particular circumstances.

In a recent case, the Supreme Court describes proper diligence, to wit: "...neglect in preventing a foreseeable injury and damage equates to neglect in exercising the utmost degree of diligence required of schools, its administrators and teachers, and, ultimately, was the proximate cause of the damage and injury to Jayson. As we have held in St. Mary’s, “for petitioner [St. Mary’s Academy] to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident.” (St. Joseph's College vs. Miranda [2010])

Godspeed!

Wednesday, June 1, 2011

Directory of Olongapo City Judges (2023 update)

Municipal Trial Court for Cities (MTCC)

Branch 1 - Hon. Judge Merinnisa O. Ligaya
Tel. No. (047) 224-7767
Branch 2 - Hon. Judge Jason B. Alquiroz 
Tel. No. (047) 224-8089
Branch 3 - Hon. Judge Rosalind R. Jungco-Abrigo
Tel. No. (047) 2242764
Branch 4 - Hon. Judge Esmeralda B. David
Tel. No. (047) 224-8085
Branch 5 - (vacant) 
Tel. No. (047) 224-8086

Executive Judge: Judge Ligaya

Regional Trial Court (RTC)

Branch 72 - Hon. Judge Richard A. Paradeza
Tel. No. (047) 224-6097
Branch 73 - (vacant)
Tel. No. (047) 224-2762
Branch 74 - Hon. Judge Roline M. Ginez-Jabalde
Tel. No. (047) 224-2761
Branch 75 - Hon. Judge Raymond C. Viray
Tel. No. (047) 224-6096
Branch 12 (FC) - Hon. Judge Gemma Hilario-Logronio
Branch 97 - Hon. Judge Melani Fay V. Tadili
Branch  98 - Hon. Judge Michael F. Real

Executive Judge: Judge Viray

The Hall of Justice is located at 23rd St., Brgy. West Bajac-Bajac, Olongapo City. The Hall of Justice - Annex (housing RTC branches FC12, 97 & 98) is located at Paladin Bldg., 22nd Place, West Bajac-Bajac, Olongapo City.

 

(First published in June 2011. In case of any inaccuracy, kindly let me know.)