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.
Showing posts with label Phiippine law. Show all posts
Showing posts with label Phiippine law. Show all posts
Thursday, October 13, 2011
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)
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)
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.”
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.”
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.
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.
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.
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.
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