The Legally Inclined Blog

TO BAIL OR NOT TO BAIL… THAT IS THE QUESTION (Enrile vs. Sandiganbayan, et al.)

2016-07-25T12:27:00.000+08:00

By Obiter07

Pursuant to the 1987 Constitution and Rule 114 of the Rules of Court, an accused is not entitled to bail in capital offenses - or where the charges would merit the penalty of reclusion perpetua or life imprisonment - until the court holds hearings to determine if the evidence of guilt is strong. In this case, bail was granted even though 1) the case involved plunder where the convicted principal shall be punished by life imprisonment; 2) there was no evidentiary hearing (to determine if the evidence of guilt is strong); 3) the granting of bail was based on new grounds: ill health, social standing and the previous favorable conduct of the accused; and 4) the new grounds were not even alleged by the accused.

In Enrile vs. Sandiganbayan, et al. (G.R. No. 213847, August 18, 2015), the Court’s opening statements are telling of its final verdict: “[t]he decision whether to detain or release an accused before and during trial is ultimately an incident of the judicial power to hear and determine his criminal case.” However, the “strength of the Prosecution’s case, albeit a good measure of the accused’s propensity for flight or for causing harm to the public, is subsidiary to the primary objective of bail, which is to ensure that the accused appears at trial.”

Senator Enrile was charged, with several others, of the crime of plunder before the Sandiganbayan with respect to the alleged “diversion and misuse of appropriations under the Priority Development Assistance Fund (PDAF).” When a warrant of arrest was issued against him, Senator Enrile surrendered himself to the Sandiganbayan and was later confined at the PNP hospital. He then filed the Motion to Fix Bail, arguing that bail should be granted “because: (a) the Prosecution had not yet established that the evidence of his guilt was strong; (b) although he was charged with plunder, the penalty as to him would only be reclusion temporal, not reclusion perpetua; and (c) he was not a flight risk, and his age and physical condition must further be seriously considered.” This was denied by Sandiganbayan. His motion for reconsideration of this resolution was likewise denied. He then filed a petition for certiorari before the Supreme Court.

In the Supreme Court, he further argued that, if convicted, he would not face the penalty of reclusion perpetua “considering the presence of two mitigating circumstances – his age and his voluntary surrender.” There is also no “proof showing that his guilt for the crime of plunder is strong; and that he should not be considered a flight risk taking into account that he is already over the age of 90, his medical condition, and his social standing.”

The Court stated that it could not consider his argument that the “two mitigating circumstances that should be appreciated in his favor, namely: that he was already over 70 years at the time of the alleged commission of the offense, and that he voluntarily surrendered” would entitle him to bail as this would lower the penalty from reclusion perpetua. This was because, “the determination, being primarily factual in context, is ideally to be made by the trial court.”

The Court instead granted bail even in the absence of a hearing to determine guilt “guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court.” It went on to cite the Universal Declaration of Human Rights to:

“x x x uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: “The State values the dignity of every human person and guarantees full respect for human rights.”

The Court determined that “[t]he Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail.” [Emphasis supplied]

The Court gave weight to “his social and political standing and his having immediately surrendered to the authorities upon his being charged in court indicate that the risk of his flight or escape from this jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this country. We also do not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and multiple frustrated murder, he already evinced a similar personal disposition of respect for the legal processes, and was granted bail during the pendency of his trial because he was not seen as a flight risk. With his solid reputation in both his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.”

Also the “currently fragile state of Enrile’s health presents another compelling justification for his admission to bail xxx.” His various ailments were considered by the Court, from hypertension to COPD which, singly or collectively, could pose significant risks to the life of Enrile xxx.” Even the OIC of the PNP General Hospital where he was confined, did not recommend that this confinement continue “because of the limitations in the medical support at that hospital.”

The Court further held that bail “for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.

Citing Dela Rama v. The People’s Court: “x x x [U]nless allowance of bail is forbidden by law in the particular case, the illness of the prisoner, independently of the merits of the case, is a circumstance, and the humanity of the law makes it a consideration which should, regardless of the charge and the stage of the proceeding, influence the court to exercise its discretion to admit the prisoner to bail; x x x”

The Court observed that “that granting provisional liberty to Enrile will then enable him to have his medical condition be properly addressed and better attended to by competent physicians in the hospitals of his choice. This will not only aid in his adequate preparation of his defense but, more importantly, will guarantee his appearance in court for the trial.”

He should not be made to wait “for the trial to finish before a meaningful consideration of the application for bail can be had is to defeat the objective of bail, which is to entitle the accused to provisional liberty pending the trial. There may be circumstances decisive of the issue of bail – whose existence is either admitted by the Prosecution, or is properly the subject of judicial notice – that the courts can already consider in resolving the application for bail without awaiting the trial to finish.” The Court stated that it was balancing “the scales of justice by protecting the interest of the People through ensuring his personal appearance at the trial, and at the same time realizing for him the guarantees of due process as well as to be presumed innocent until proven guilty.”

It found that the Sandiganbayan “arbitrarily ignored the objective of bail to ensure the appearance of the accused during the trial; and unwarrantedly disregarded the clear showing of the fragile health and advanced age of Enrile.” The Court ordered his release upon the posting of a cash bond of P1,000,000.00.

Since under the Constitution and the Rules of Court, humanitarian considerations are not grounds for the grant of bail, we remain curious as to the Court’s future decisions once similar humanitarian petitions for bail are filed.

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A rape every 53 minutes: Fast facts on rape (from ABS-CBN News Multimedia page)

2016-04-20T15:08:00.001+08:00

Credit: Christian Joy Brosas for infographic with research by Jamaine Punzalan, ABS-CBN News, 04/19/16 7:32 PM

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BROTHERHOOD OF THE DAMNED: THE FIRST EVER HAZING CONVICTIONS (Convictions under the Anti-Hazing law based on disputable presumption of actual participation and circumstantial evidence)

2015-10-05T11:58:00.000+08:00

By Siesta-friendly

Republic Act No. 8049 (An Act Regulating Hazing And Other Forms Of Initiation Rites In Fraternities, Sororities, And Other Organizations And Providing Penalties Therefor), popularly known as the Anti-Hazing Law, has been in existence since 1995. We’ve had several deaths due to hazing since then yet 2015 is the year we get our first convictions. It also took a while to get the convictions considering it was in January 14, 2006 when Alpha Phi Omega neophyte Marlon Villanueva was killed during hazing.

Apart from the first hazing convictions, Dandy L. Dungo and Gregorio A. Sibal, Jr. vs. People of the Philippines (G.R. No. 209464, July 1, 2015) is also notable for its anti-hazing convictions based on “disputable presumption of actual participation” and based on circumstantial evidence.

In support of the convictions, below are the facts detailed by the CA and cited by the SC -

1. Marlon Villanueva is a neophyte of Alpha Phi Omega, as testified by his roommate Joey Atienza.

2. At around 3:00 o'clock in the afternoon of January 13, 2006, [UPLB student Gay Czarina] Sunga was staying at their tambayan, talking to her organization mates. Three men were seated two meters way from her. She identified two of the men as appellants Sibal and Dungo, while she did not know the third man. The three men were wearing black shirts with the seal of the Alpha Phi Omega.

3. Later at 5:00 o'clock in the afternoon, two more men coming from the entomology wing arrived and approached the three men. Among the men who just arrived was the victim, Marlon Villanueva. One of the men wearing black APO shirts handed over to the two fraternity neophytes some money and told the men "Mamalengke na kayo." He later took back the money and said, "Huwag na, kami na lang."

4. One of the men wearing a black APO shirt, who was later identified as appellant Dungo, stood up and asked Marlon if the latter already reported to him, and asked him why he did not report to him when he was just at the, tambayan. Dungo then continuously punched the victim on his arm. This went on for five minutes. Marlon just kept quiet with his head bowed down. Fifteen minutes later, the men left going towards the Entomology wing.

5. The deceased Marlon Villanueva was 'last seen alive by Joey Atienza at 7:00 in the evening of 13 January 2006, from whom he borrowed the shoes he wore at the initiation right [sic]. Marlon told Joey that it was his "finals" night.

6. On January 13, 2006 at around 8:30 to 9:00 o'clock in the evening, [nearby sari-sari store owner] Susan Ignacio saw more than twenty (20) persons arrive at the Villa Novaliches Resort onboard a jeepney. She estimated the ages of these persons to be between 20 to 30 years old. Three (3) persons riding a single motorcycle likewise arrived at the resort.

7. Ignacio saw about fifteen (15) persons gather on top of the terrace at the resort who looked like they were praying. Later that evening, at least three (3) of these persons went to her store to buy some items. She did not know their names but could identity [sic] their faces. After she was shown colored photographs, she pointed to the man later identified as Herald Christopher Braseros. She also pointed out the man later identified as Gregorio Sibal, Jr.

8. Donato Magat, a tricycle driver plying the route of Pansol, Calamba City, testified that around 3:00 o'clock in the morning of January 14, 2006, he was waiting for passengers at the corner of Villa Novaliches Resort when a man approached him and told him that someone inside the resort needed a ride. Magat then went to the resort and asked the two (2) men standing by the gate who will be riding his tricycle.

9. The four (4) men boarded his tricycle but Magat noticed that when he touched the body of the man who was being carried, it felt cold. The said man looked very weak like a vegetable.

10. Seferino Espina y Jabay testified that he worked as a security guard at the J.P. Rizal Hospital and was assigned at the emergency room. At around 3:00 o'clock in the early morning of January 14, 2006, he was with another security guard, Abelardo Natividad and hospital helper Danilo Glindo a.k.a. Gringo, when a tricycle arrived at the emergency room containing four (4) passengers, excluding the driver. He was an arm's length away from said tricycle. He identified two of the passengers thereof as appellants Dungo and Sibal. Espina said he and Glinda helped the passengers unload a body inside the tricycle and brought it to the emergency room.

11. Afterwards, Espina asked the two men for identification cards. The latter replied that they did not bring with them any I.D. or wallet. Instead of giving their true names, the appellants listed down their names in the hospital logbook as Brandon Gonzales y Lanzon and Jericho Paril y Rivera. Espina then told the two men not to leave, not telling them that they secretly called the police to report the incident which was their standard operating procedure when a dead body was brought to the hospital.

12. Dr. Ramon Masilungan, who was then the attending physician at the emergency room, observed that Marlon was motionless, had no heartbeat and already cyanotic.

13. Dr. Masilungan tried to revive Marlon for about 15 to 20 minutes. However, the latter did not respond to resuscitation and was pronounced dead. Dr. Masilungan noticed a big contusion hematoma on the left side of the victim's face and several injuries on his arms and legs. He further attested that Marlon's face was already cyanotic.

14. When Dr. Masilungan pulled down Marlon's pants, he saw a large contusion on both legs which extended from the upper portion of his thigh down to the couplexial portion or the back of the knee.

15. Due to the nature, extent and location of Marlon's injuries, Dr. Masilungan opined that he was a victim of hazing. Dr. Masilungan is familiar with hazing injuries, having undergone hazing when he was a student and also because of his experience treating victims of hazing incidents.

16. Dr. Roy Camarillo, Medico-Legal Officer of the PNP Crime Laboratory in Region IV, Camp Vicente Lim, Canlubang, Calamba City, testified that he performed an autopsy on the cadaver of the victim on January 14 2006; that the victim's cause of death was blunt head trauma. From 1999 to 2006, he was able to conduct post-mortem examination of the two (2) persons whose deaths were attributed to hazing. These two (2) persons sustained multiple contusions and injuries on different parts of their body, particularly on the buttocks, on both upper and lower extremities. Both persons died of brain hemorrhage. Correlating these two cases to the injuries found on the victim's body, Dr. Camarillo attested that the victim, Marlon Villanueva, sustained similar injuries to those two (2) persons. Based on the presence of multiple injuries and contusions on his body, he opined that these injuries were hazing-related. (Dungo and Sibal vs. People)

The RTC convicted Dungo and Sibal for violation of Section 4 of the Anti-Hazing Law and sentenced them to suffer Reclusion Perpetua.

Said Section 4 reads as follows:

“Section 4. If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. The person or persons who participated in the hazing shall suffer:

1. The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results there from.

xxx”

The CA affirmed the RTC’s judgment in toto.

Sufficiency of the Information

On appeal to the SC, Dungo and Sibal claimed that the RTC and CA judgments violated the constitutional right of the accused to be informed of the nature and cause of the accusation against them because the offense charged in the information is different from that for which they were found guilty.

The information stated that Dungo and Sibal "did then and there willfully, unlawfully and feloniously assault and use personal violence upon one Marlon Villanueva y Mejilla", i.e. they were charged for hazing by actual participation, while the only offense proven at trial was hazing by inducement.

The SC noted the complete wording of the information which reads as follows:

“That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol, Calamba City, Province of Laguna and within the jurisdiction of the Honorable Court, the above-named accused, during a planned initiation rite and being then officers and members of Alpha Phi Omega fraternity and present thereat, in conspiracy with more or less twenty other members and officers, whose identity is not yet known, did then and there willfully, unlawfully and feloniously assault and use personal violence upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his admission to the fraternity, thereby subjecting him to physical harm, resulting to his death, to the damage and prejudice of the heirs of the victim.” (Dungo and Sibal vs. People)

The SC held that the information stated a “planned initiation rite” and “a planned event can be understood to have different phases … [T]he hazing activity had different stages and the perpetrators had different roles therein, not solely inflicting physical injury to the neophyte. One of the roles of the petitioners in the hazing activity was to induce Villanueva to be present. Dungo and Sibal not only induced Villanueva to be present at the resort, but they actually brought him there. They fulfilled their roles in the planned hazing rite which eventually led to the death of Villanueva. The hazing would not have been accomplished were it not for the acts of the petitioners that induced the victim to be present.”

The SC said that “[s]ecrecy and silence are common characterizations of the dynamics of hazing. To require the prosecutor to indicate every step of the planned initiation rite in the information at the inception of the criminal case, when details of the clandestine hazing are almost nil, would be an arduous task, if not downright impossible. The law does not require the impossible”.

In upholding that the information was sufficient to convict the accused for violation of Section 4 of the Anti-Hazing Law, the SC held that it sufficiently stated “every element of the crime of hazing, the offenders, and the accompanying circumstances in the planned initiation activity”.

Prima facie evidence of participation does not violate the right of the accused to be presumed innocent

Despite alleging only one error in their appeal, appellants in their Reply alleged that the prosecution failed to establish conspiracy. The SC, while noting that the appellants raised a question of fact not allowed in their appeal, decided to open the whole case for review “in the interest of justice” and “due to the novelty of the issue presented”.

The novel issue involves Section 4 paragraph 6 of the Anti-Hazing Law which states:

“The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein.”

The SC said that the law “presents a novel provision that introduces a disputable presumption of actual participation; and which modifies the concept of conspiracy … because a disputable presumption arises from the mere presence of the offender during the hazing, which can be rebutted by proving that the accused took steps to prevent the commission of the hazing.”

First, the SC reminded appellants that “[p]enal laws which feature prima facie evidence by disputable presumptions against the offenders are not new, and can be observed in the following: (1) the possession of drug paraphernalia gives rise to prima facie evidence of the use of dangerous drug; (2) the dishonor of the check for insufficient funds is prima facie evidence of knowledge of such insufficiency of funds or credit; 102 and (3) the possession of any good which has been the subject of robbery or thievery shall be prima facie evidence of

fencing.”

The SC found there was prima facie evidence of appellants’ participation in the hazing based on the testimonies of disinterested and credible witnesses establishing their (1) acts of inducing Marlon Villanueva to participate in the hazing, and (2) their presence in the resort (the crime scene). And since there was no testimony that either appellant prevented the hazing, the disputable presumption was not overcome. Thus, the facts were sufficient to establish their roles in the conspiracy.

Guilt beyond reasonable doubt also proven by circumstantial evidence

The SC noted that “[c]rimes are usually committed in secret and under conditions where concealment is highly probable” and so direct evidence is understandably not always available. And, “hazing is shrouded in secrecy. Fraternities and sororities … are secretive in nature and their members are reluctant to give any information regarding initiation rites. The silence is only broken after someone has been injured so severely that medical attention is required … Bearing in mind the concealment of hazing, it is only logical and proper for the prosecution to resort to the presentation of circumstantial evidence to prove it.”

The SC laid down the requisites and rules for sustaining a conviction based on circumstantial evidence: “(1) there [is] more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused … Jurisprudence requires that the circumstances must be established to form an unbroken chain of events leading to one fair reasonable conclusion pointing to the accused, to the exclusion of all others, as the author of the crime.”

Finally, the defenses of denial and alibi - being the “weakest of all defenses because they are easy to concoct and fabricate” - were deemed insufficient by the SC. The only witnesses presented by appellants were their fraternity brothers and Dungo’s girlfriend who cannot be deemed impartial and disinterested so as to be credible and reliable.

SC’s suggested amendments to the Anti-Hazing Law

The SC suggested the imposition of penalty or liability for non-compliance of the following provisions regarding the requirement of notice (Section 2) and the requirement of representation (Section 3)-

“Section 2. No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation. The written notice shall indicate the period of the initiation activities which shall not exceed three (3) days, shall include the names of those to be subjected to such activities, and shall further contain an undertaking that no physical violence be employed by anybody during such initiation rites.

Section 3. The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant.“

The SC also suggested that Section 4 include not only physical harm but psychological harm as well.

It is really no cause for jubilation, that the first convictions on this law have been handed down and upheld. The passage of the law should have been enough to do away with hazing. This case only memorializes three lives that have been ruined, that of the victim’s which has been untimely taken and that of his two tormentors. No real brotherhood is worth paying such a steep price for membership. This case should give pause and reason to all prospective initiates and their masters.

We end this with how the SC ended its decision –

“R.A. No. 8049 is a democratic response to the uproar against hazing. It demonstrates that there must, and should, be another way of fostering brotherhood, other than through the culture of violence and suffering. The senseless deaths of these young men shall never be forgotten, for justice is the spark that lights the candles of their graves.”

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The Pandacan Oil Depot (Police Power vs Capital Power) [Second of 2 parts: Ordinance No. 8187 and G.R. Nos. 187836 and 187916)

2015-09-22T14:47:00.000+08:00

By Siesta-friendly

As we discussed in Part 1, the first challenged Ordinance (No. 8027) – which reclassified the Pandacan area from Industrial to Commercial and ordered industrial businesses like the oil industries maintaining depots in the area to cease and desist from operating – was held as constitutional by the SC.

In an about-face, Manila city hall then issued Ordinance No. 8187 for the purpose of reclassifying (again) the Pandacan area by creating a Medium Industrial Zone and Heavy Industrial Zone thus allowing oil depots to continue to exist in Pandacan.

If your first ordinance was upheld by the Supreme Court as a valid exercise of police power because it aimed “to safeguard the rights to life, security and safety of the inhabitants of Manila”, why not issue another ordinance to repeal it, completely contradict it and forget about that small concern regarding the life, security and safety of the inhabitants of Manila.

Let us allow the SC to explain why –

“… the position of the Sangguniang Panlungsod on the matter has thrice changed, largely depending on the new composition of the council and/or political affiliations. The foregoing, thus, shows that its determination of the “general welfare” of the city does not after all gear towards the protection of the people in its true sense and meaning, but is, one way or another, dependent on the personal preference of the members who sit in the council as to which particular sector among its constituents it wishes to favor.”

Mindful that the safety of the Manileños were still at risk, the SC continued -

“Now that the City of Manila, through the mayor and the city councilors, has changed its view on the matter, favoring the city’s economic-related benefits, through the continued stay of the oil terminals, over the protection of the very lives and safety of its constituents, it is imperative for this Court to make a final determination on the basis of the facts on the table as to which specific right of the inhabitants of Manila should prevail…”

Thus, the SC struck down Ordinance No 8187 as invalid and unconstitutional for the same reasons it upheld the constitutionality of Ordinance No. 8027, further saying that -

“The issue of whether or not the Pandacan Terminal is not a likely target of terrorist attacks has already been passed upon in G. R. No. 156052. Based on the assessment of the Committee on Housing, Resettlement and Urban Development of the City of Manila and the then position of the Sangguniang Panlungsod, the Court was convinced that the threat of terrorism is imminent. It remains so convinced.

… the very nature of the depots where millions of liters of highly flammable and highly volatile products, regardless of whether or not the composition may cause explosions, has no place in a densely populated area. Surely, any untoward incident in the oil depots, be it related to terrorism of whatever origin or otherwise, would definitely cause not only destruction to properties within and among the neighboring communities but certainly mass deaths and injuries.

xxx

It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187, compels the affirmance of our Decision in G.R. No. 156052.”

And so, the SC finally set a definite period for the relocation of the oil depot -

“The oil companies shall be given a fresh non-extendible period of forty-five (45) days from notice within which to submit to the Regional Trial Court, Branch 39, Manila an updated comprehensive plan and relocation schedule. The relocation, in turn, shall be completed not later than six months from the date of their submission.”

We expect this to be the last we hear of the continued stay of the depots even though there is a new mayor in Manila, different from the mayor who signed Ordinance No. 8027 and different from that who signed Ordinance No. 8187.It was the Supreme Court that had to remind local legislators that they are supposed to have the welfare of the people foremost in mind.

The Pandacan Oil Depot (Police Power vs Capital Power) [First of 2 parts: Ordinance No. 8027 and G.R. 156052]

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FULL COURT PRESS: What your 2016 vote will mean for the Supreme Court

2015-09-12T13:41:00.000+08:00

By Siesta-friendly

The next Philippine President is constitutionally set to hold office for 6 years from 2016 – 2022. And within her/his term, 11 Supreme Court justices are constitutionally mandated to retire once they reach 70 years.
Already potent as it is, the president’s power to appoint will be most significant when it comes to appointing Supreme Court justices as the new Chief Executive will be able to pack the court.
Judicial review

With the 1987 Constitution’s power of judicial review, to wit -

“Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Section 1, Article VIII, 1987 Constitution)

citizens have appealed to the Supreme Court on issues seemingly strictly within the jurisdiction of the executive or legislative departments.

Where pre-1987 Constitution, the Supreme Court could cite the doctrine of “political question” as a valid excuse in refusing to settle certain executive or legislative actions, that is no longer the case. With the 1987 Constitutional provision on judicial review, any act of a government official/s can be questioned on constitutional grounds if done in “grave abuse of discretion amounting to lack or excess of jurisdiction”.

So, if the next President chooses well, we can have a Supreme Court that can provide an effective check on executive or legislative excesses. If not, we end up with a Supreme Court rubber-stamping any questioned abusive executive or legislative action. Or possibly worse, an activist Court that indirectly legislates through its decisions.

And we indirectly have a hand in shaping the composition of the Supreme Court when we choose the person authorized to appoint its members.

Soon-to-retire SC justices

Here are the names of the 11 justices and their respective retirement dates:

Martin S. Villarama, Jr. - April 14, 2016
Jose P. Perez - December 14, 2016
Arturo D. Brion - December 29, 2016
Bienvenido L. Reyes - July 6, 2017
Jose C. Mendoza - August 13, 2017
Presbitero J. Velasco - August 8, 2018
Teresita Leonardo-De Castro- Oct. 8, 2018
Mariano C. Del Castillo - July 29, 2019
Lucas P. Bersamin - October 18, 2019
Antonio T. Carpio - October 26, 2019
Francis H. Jardeleza - September 26, 1949

We note that 10 of the 11 are Gloria Arroyo appointees, so while we look forward to the diminishing Arroyo court, we are wary that the next President would appoint justices lacking independence, integrity and morality thereby forming another President’s court which will unabashedly issue decisions favoring their appointer.

Thus, we need a President with independence, integrity and morality to get a Supreme Court of the same character.

So this campaign season, let us encourage debates on governance issues, and not politics. Let us set high standards for our leaders, and not settle for popularity. Let us look for the leader who will have the people’s interest – not his, nor his family, cronies or party’s – at heart. And let us vote wisely. It is not only the membership in the Court that is at stake but our very future.

“A world is supported by four things ...

the learning of the wise,

the justice of the great,

the prayers of the righteous

and the valour of the brave.

But all of these are as nothing ... without a ruler who knows the art of ruling.”

- The Reverend Mother Gaius Helen Mohiam, in Frank Herbert’s “Dune”

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The Pandacan Oil Depot (Police Power vs Capital Power) [First of 2 parts: Ordinance No. 8027 and G.R. 156052]

2015-07-03T14:38:00.000+08:00

By Siesta-friendly

At last, the departure of the Pandacan oil depot has been decided with finality by the Supreme Court. It’s taken a few years – and a few conflicting LGU actions to boot – but the depot has finally been ordered to leave. How did the Supreme Court decide? In explaining most things, it is best to start from the beginning. To narrow our focus, we will only tackle the 2 clearly conflicting Manila ordinances. Ordinance No. 8027 (2001) and G.R. 156052 The Manila local government enacted Ordinance No. 8027 which became effective on December 28, 2001. Because this ordinance ordered oil companies to leave the Pandacan oil depot and because tax payers questioned the delay in the implementation of the ordinance, legal issues were eventually raised with the Supreme Court. The Supreme Court issued their Resolution on the issues on February 13, 2008 in SOCIAL JUSTICE SOCIETY v. HON. JOSE L. ATIENZA, JR., (G.R. No. 156052) In resolving the issues in G.R. No. 156052, the Court first cited the pertinent provisions of Ordinance No. 8027:

“SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.” [emphasis supplied]

In simple words, the area where the Pandacan oil depot is located was classified from industrial to commercial and all covered businesses in said area were ordered to leave within 6 months from the ordinance’s effectivity.

Then the Court cited the history and significance of Pandacan and the rationale behind the ordered departure of the oil depot under Ordinance No. 8027 -

Pandacan History

“Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig [R]iver. At the turn of the twentieth century, Pandacan was unofficially designated as the industrial center of Manila. The area, then largely uninhabited, was ideal for various emerging industries as the nearby river facilitated the transportation of goods and products. In the 1920s, it was classified as an industrial zone. Among its early industrial settlers were the oil companies. x x x

On December 8, 1941, the Second World War reached the shores of the Philippine Islands. x x x [I]n their zealous attempt to fend off the Japanese Imperial Army, the United States Army took control of the Pandacan Terminals and hastily made plans to destroy the storage facilities to deprive the advancing Japanese Army of a valuable logistics weapon. The U.S. Army burned unused petroleum, causing a frightening conflagration. Historian Nick Joaquin recounted the events as follows:

After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps were set on fire. The flames spread, enveloping the City in smoke, setting even the rivers ablaze, endangering bridges and all riverside buildings. … For one week longer, the “open city” blazed—a cloud of smoke by day, a pillar of fire by night.

The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and service stations inoperative.

After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The three major oil companies resumed the operation of their depots. But the district was no longer a sparsely populated industrial zone; it had evolved into a bustling, hodgepodge community. Today, Pandacan has become a densely populated area inhabited by about 84,000 people, majority of whom are urban poor who call it home. Aside from numerous industrial installations, there are also small businesses, churches, restaurants, schools, daycare centers and residences situated there. Malacañang Palace, the official residence of the President of the Philippines and the seat of governmental power, is just two kilometers away. There is a private school near the Petron depot.

Along the walls of the Shell facility are shanties of informal settlers. More than 15,000 students are enrolled in elementary and high schools situated near these facilities. A university with a student population of about 25,000 is located directly across the depot on the banks of the Pasig [R]iver.

The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and depot facilities. The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas, respectively, are connected to the Pandacan Terminals through a 114-kilometer underground pipeline system. Petron’s refinery in Limay, Bataan, on the other hand, also services the depot. The terminals store fuel and other petroleum products and supply 95% of the fuel requirements of Metro Manila, 50% of Luzon’s consumption and 35% nationwide. Fuel can also be transported through barges along the Pasig [R]iver or tank trucks via the South Luzon Expressway. (Citations omitted)”

The Court also cited the following facts which formed the bases for the Committee on Housing, Resettlement and Urban Development of the City of Manila to recommend the approval of the ordinance:

(1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile products which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and fuel oil among others;

(2) the depot is open to attack through land, water or air;

(3) it is situated in a densely populated place and near Malacañang Palace and in case of an explosion or conflagration in the depot, the fire could spread to the neighboring communities.

The Court added –

“The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as it there is such a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat. According to [Mayor Atienza]:

Such a public need became apparent after the 9/11 incident which showed that what was perceived to be impossible to happen, to the most powerful country in the world at that, is actually possible. The destruction of property and the loss of thousands of lives on that fateful day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the threats of terrorism continued [such] that it became imperative for governments to take measures to combat their effects.”

And based on these findings, the Court made the following rulings:

Ordinance No. 8027 was enacted in accordance with the exercise of police power

The Court acknowledged that the Sangguniang Panlungsod of Manila, as the LGU’s legislature, was vested with delegated police power. The Court reminded us that “[p]olice power is the plenary power vested in the legislature to make statutes and ordinances to promote the health, morals, peace, education, good order or safety and general welfare of the people.” And that police power exists “only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a lawful method.” [emphasis supplied]

Thus, based on the history of Pandacan, the threats to life posed by the depot’s existence, and the zoning reclassification done by the city legislature, and despite curtailing the property rights of the oil companies, the Court found that -

“Ordinance No. 8027 was enacted for the purpose of promoting sound urban planning, ensuring health, public safety and general welfare of the residents of Manila. The Sanggunian was impelled to take measures to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area defined in the ordinance from industrial to commercial.”

Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which Amounts To Taking Without Compensation

The Court held that Ordinance 8027 is not unfair nor oppressive since it only prohibits the oil companies from operating inside Pandacan and not the whole of Manila.

And neither is the ordinance confiscatory because “there is a limitation on or restriction of property interests to promote public welfare which involves no compensable taking. Compensation is necessary only when the states power of eminent domain is exercised. In eminent domain, property is appropriated and applied to some public purpose. Property condemned under the exercise of police power, on the other hand, is noxious or intended for a noxious or forbidden purpose and, consequently, is not compensable.”

In upholding the ordinance’s restrictions and effect on the oil companies, their businesses, operations, income and facilities, the Court further explained police power and the social function of property -

“Police power proceeds from the principle that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the right of the community. Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.’

Ordinance No. 8027 Is Not Partial And Discriminatory

The Court also held that Ordinance 8027 does not violate the Equal Protection clause by not including in its scope “buildings and residences that do not comply with the National Building Code, Fire Code and Health and Sanitation Code.” The Court explained that the “requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only and (4) it must apply equally to all members of the same class.”

In explaining that there are “real and substantial differences” between, and a “reasonable classification’ of, those included and excluded from the ordinance’s scope, the Court said –

“… what the ordinance seeks to prevent is a catastrophic devastation that will result from a terrorist attack. Unlike the depot, the surrounding community is not a high-value terrorist target. Any damage caused by fire or explosion occurring in those areas would be nothing compared to the damage caused by a fire or explosion in the depot itself. Accordingly, there is a substantial distinction. The enactment of the ordinance which provides for the cessation of the operations of these terminals removes the threat they pose. Therefore it is germane to the purpose of the ordinance. The classification is not limited to the conditions existing when the ordinance was enacted but to future conditions as well. Finally, the ordinance is applicable to all businesses and industries in the area it delineated.”

Ordinance No. 8027 Is Not Contrary to RA 7638 (DOE Act of 1992) and RA 8479 (Downstream Oil Industry Deregulation Law of 1998)

The Court held that local autonomy as guaranteed under the Constitution, specifically Section 25 of Article II and all of Article X, justify the City of Manila’s valid exercise of police power despite the state policies and the authority given the DOE under RAs 7638 and 8479 -

“Under Section 5 I of RA 7638, DOE was given the power to establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources. On the other hand, under Section 7 of RA 8749, the DOE shall continue to encourage certain practices in the Industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products. Nothing in these statutes prohibits the City of Manila from enacting ordinances in the exercise of its police power.”

The Court further clarified -

“The laws cited merely gave DOE general powers to establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources and to encourage certain practices in the [oil] industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products. These powers can be exercised without emasculating the LGUs of the powers granted them. When these ambiguous powers are pitted against the unequivocal power of the LGU to enact police power and zoning ordinances for the general welfare of its constituents, it is not difficult to rule in favor of the latter. Considering that the powers of the DOE regarding the Pandacan Terminals are not categorical, the doubt must be resolved in favor of the City of Manila …”

The Court also emphasized that under the Article X Section 4 of the Constitution, the President’s power over LGUs is one of general supervision. The DOE Secretary, being merely the President’s alter ego cannot control LGUs -

“Thus, the President and his or her alter egos, the department heads, cannot interfere with the activities of local governments, so long as they act within the scope of their authority. Accordingly, the DOE cannot substitute its own discretion for the discretion exercised by the sanggunian of the City of Manila. In local affairs, the wisdom of local officials must prevail as long as they are acting within the parameters of the Constitution and the law.”

So there – based on the Constitution, law and public interest, the Supreme Court held Ordinance No. 8027 to be a valid exercise of police power and ordered the relocation of the Pandacan oil depot.

A happy ending, no? Of course not. We are talking about the Philippines. So, of course, elections were held and a new Manila government came into power and, on May 14, 2009, enacted Ordinance 8187 which repealed Ordinance No. 8027.

[to be continued]

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SUPPORT THE CAMPAIGN FOR THE RETURN OF THE BELLS OF BALANGIGA

2015-05-27T16:19:00.000+08:00

The Philippine-American War officially began in 1899 following the U.S occupation of the Philippines. In 1901, a notable act of resistance to the occupiers was shown by Filipinos when, upon the ringing of the Balangiga bells, about 4 dozen U.S soldiers were killed by Filipino guerillas at breakfast in the town of Balangiga, Samar province. In retaliation, U.S. General Jacob Hurd Smith ordered every one in Samar over 10 years old be killed. General Hurd ordered a “howling wilderness”. Tens of thousands were reportedly killed and the 3 bells were taken as war prizes.

The 3 balangiga bells are now in US bases in South Korea and Wyoming.

Through the years Filipinos, including Americans, have sought the return of the bells. The campaign continues.

Support the campaign to return home the Bells of Balangiga.

Know more of the background from the video “Bells of Balangiga” -

and from the web site “The Bells of Balangiga (A 100 year journey Home)”.

Sign the petition “Bring The Bells Of Balangiga Home”.

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BASIC STRUCTURAL GUIDELINES FOR EARTHQUAKE SAFETY “How Safe is My House?: Self-check for Earthquake Safety of Concrete Hollow Block (CHB) Houses in the Philippines”

2015-05-18T10:46:00.000+08:00

Let’s help protect ourselves for the major earthquake that is just around the corner.

The Philippine Institute of Volcanology and Seismology (PHIVOLCS) of the Department of Science and Technology (DOST) has a checklist for earthquake safety entitled “How Safe is My House?: Self-check for Earthquake Safety of Concrete Hollow Block (CHB) Houses in the Philippines”.

Some important notes include:

there were earthquake-resistant building standards set in 1992 implying that structures built before then need evaluation by a civil engineer;
cement hollow blocks (CHB) standard size is 6”;
diameter steel bars standard size is 10mm;
diameter steel bars should be spaced 40cm apart side to side and connected to steel bars laid every 3 layers of CHB;
walls should not be wider than 3 meters without perpendicular walls/supports;
regular house maintenance/repair should be conducted to prevent deterioration.

In the interest of accuracy, we are posting the entire “House self-check” material. There are 12 questions posed to residents which serve as guidelines as to what may be a cause for concern, close examination by an engineer or outright repair.

Please do also check out our other earthquake-related articles: PREPARING FOR AN EARTHQUAKE: Learning from the Metro Manila Earthquake Impact Reduction Study and What to do during an earthquake.

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NO MORE FORGIVE AND FORGET: It’s about time the Condonation by Re-election doctrine is overturned

2015-04-29T11:45:00.000+08:00

By Siesta-friendly

Misgivings about the SC doctrine of condonation (by re-election), a ruling exemplified in Aguinaldo vs Santos (G.R. No. 94115, August 21, 1992)

, have arisen again thanks to Makati City Mayor Junjun Binay’s argument that the Ombudsman’s preventive suspension order against him was wrong because his alleged acts of misconduct occurred in his previous term and was thus condoned once he was re-elected.

The Condonation doctrine

By the way, the Philippine cases on which Aguinaldo vs Santos is based - Pascual v. Provincial Board of Nueva Ecija (L-11959, October 31, 1959) and Lizares v. Hechanova, et al., (G.R. No. L-22059, May 17, 1966) - were decided before the 1987 Constitution so we chose not to discuss these cases as they were held long before the present Constitution and its stronger language on a public official’s accountability became effective.

There have been other condonation cases post-1987 that have been based on the Pascual and Lizares rulings, but we are choosing Aguinaldo vs Santos as this ruling is the first one held post-1987 and is oft-cited, plus the decisions are all basically the same anyway, i.e., re-election means the condonation of an administrative offense done by the re-elected official during his previous term.

Aguinaldo vs Santos

In March 19, 1990, in an administrative case against Cagayan Governor Rodolfo E. Aguinaldo, the Secretary of Local Government found the governor guilty of disloyalty to the Republic - for involvement in the failed December 1989 coup d'etat - and ordered his dismissal.

Mr. Aguinaldo went to the Supreme Court and filed a petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, questioning the decision of the Secretary of Local Government.

While the SC case was pending, Mr. Aguinaldo filed his certificate of candidacy for the May 11, 1992 elections to run again for the governorship. On May 9, 1992, petitions for disqualification were filed against him with the COMELEC, and the COMELEC ordered his disqualification. In May 14, 1992, the SC issued a TRO against the COMELEC to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the SC disqualification case. The TRO, in effect, allowed the canvassing of the votes and returns in Cagayan. The SC also ordered COMELEC not to proclaim a winner until the SC’s decision. Later, the SC annulled COMELEC’s May 9, 1992 resolution because the disqualification case was still pending before the SC. Eventually, Mr. Aguinaldo won by a landslide which led to his being proclaimed governor.

The SC then held that Mr. Aguinaldo’s “re-election to the position of Governor of Cagayan has rendered the administration case pending before Us moot and academic.” (So convenient, no?)

In ruling that –

“a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefore.”

the SC cited the following US and Philippine rulings, to wit:

“The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553.”

“The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57 SCRA 163 [1974])”

It is peculiar that the post-1987 cases on condonation by re-election do not involve a discussion of the provisions of the 1987 Constitution on the accountability of public officers and the apparent conflict between the doctrine and the 1987 Constitution.

The Condonation doctrine vs the 1987 Constitution

Clearly, the condonation doctrine does not uphold the following Constitutional directives on the public accountability of public officials.

Public Accountability

Article XI (Accountability Of Public Officers), Section 1 –

“Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.”

Article XII Section 27 -

“The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.”

Powers of the Ombudsman

In addition, the condonation doctrine hampers the Ombudsman from exercising his/her constitutionally-mandated powers to make public officers accountable to the people.

Under Article XI (Accountability Of Public Officers), Section 13 –

“The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.”

The Condonation doctrine vs the Local Government Code

While we’re at it, we might as well add that the condonation doctrine prevents the removal of an elective official as provided in the Local Government Code’s provisions on Disciplinary Actions.

Under Chapter IV (Disciplinary Actions) Section 60 of the Local Government Code –

“Grounds for Disciplinary Actions. – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.”

The condonation doctrine is indefensible without Pascual vs. Provincial Board of Nueva Ecija. The doctrine has no constitutional nor statutory basis. In fact, it runs counter to significant constitutional and statutory provisions meant to protect the public from erring public officials.

Remember –

· The Constitution said “public officers and employees must, at all times, be accountable to the people” and NOT “public officers and employees must, only during their current term of office, be accountable to the people”.

· The Constitution said “public officers and employees must, at all times, be accountable to the people” and NOT “public officers and employees must, at all times, be accountable only to the people who voted for them”.

It’s about time the Supreme Court gets with the program long set by the Constitution and by law. If a public official violates his oath of office, then he should be properly punished. At best, allow only the President, under his/her Constitutionally-granted pardon powers to condone the offense. No one else has been granted, by Constitution or statute, the power to pardon.

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MORALITY PLAY: Pre-marital relations as ground for Dismissal

2015-03-30T11:42:00.000+08:00

By Obiter07

In LEUS vs ST. SCHOLASTICA'S COLLEGE, et al G.R. No. 187226, January 28, 2015, we see how a school’s strict moral standards do not necessarily justify the dismissal of an employee. In this case, the petitioner was hired by a Catholic school as part of its non-teaching personnel. She engaged in pre-marital sexual relations and got pregnant. When the school discovered the pregnancy, the Directress advised her to resign. She refused. The Directress then directed her to explain why she should not be dismissed for “engaging in pre-marital sexual relations and getting pregnant as a result thereof, which amounts to serious misconduct and conduct unbecoming of an employee of a Catholic school.”

In response, she explained “that her pregnancy out of wedlock does not amount to serious misconduct or conduct unbecoming of an employee.” She stated that she was not aware of any policy that this constituted serious misconduct and, thus, a ground for dismissal. She asked for a copy of the school’s policy and guidelines.

The Directress informed her that the school follows the 1992 Manual of Regulations for Private Schools (1992 MRPS); that Section 94(e) of the 1992 MRPS cites “disgraceful or immoral conduct” as a ground for dismissal in addition to the just causes for termination of employment provided under Article 282 of the Labor Code.”

She responded, through counsel, that “pre-marital sex between two consenting adults without legal impediment to marry each other who later on married each other does not fall within the contemplation of “disgraceful or immoral conduct” and “serious misconduct” of the Manual of Regulations for Private Schools and the Labor Code of the Philippines.” They argued that petitioner being a bad example to the students was “speculative and is more imaginary than real.”

The school, now also through counsel, “maintained that pre-marital sexual relations, even if between two consenting adults without legal impediment to marry, is considered a disgraceful and immoral conduct or a serious misconduct xxx.” And that the school “has the right to uphold the teaching of the Catholic Church xxx.” They further asserted that the petitioner’s indiscretion is further aggravated by the fact that she is the Assistant to the Director of the Lay Apostolate and Community Outreach Directorate, a position of responsibility that the students look up to as role model.” She was asked to explain why she should not be dismissed.”

The petitioner advised the school that she was adopting her counsel’s letter as her written explanation. She was thereafter terminated by the school on the ground of serious misconduct, stating that “pre-marital sexual relations between two consenting adults with no impediment to marry, even if they subsequently married, amounts to immoral conduct.”

Petitioner filed a complaint for illegal dismissal with the NLRC which was dismissed, with the Labor Arbiter and the Commission ruling against her. This was likewise upheld by the Court of Appeals.

The need for proof that pre-marital sex and

pregnancy out of wedlock are disgraceful or immoral

The Supreme Court overturned the decision of the CA. However, it did uphold the validity of the 1992 MRPS, specifically Section 94 as having been validly issued by the Secretary of Education pursuant to BP 232.

The Court then focused on the validity of the dismissal which “hinges on the determination of whether pregnancy out of wedlock by an employee of a catholic educational institution is a cause for the termination of her employment. But the Court resolved this “from a strictly neutral and secular point of view – the relationship between SSCW as employer and the petitioner as an employee, the causes provided for by law in the termination of such relationship, and the evidence on record.”

Her dismissal was based on “pre-marital sexual relations and, consequently, pregnancy out of wedlock.” This was to be assessed as to whether the same constitutes a valid ground for dismissal pursuant to Section 94(e) of the 1992 MRPS which provides that:

“Sec. 94. Causes of Terminating Employment – In addition to the just causes enumerated in the Labor Code, the employment of school personnel, including faculty, may be terminated for any of the following causes:

x x x x

e. Disgraceful or immoral conduct;

x x x x”

The Court found no substantial evidence to support the previous conclusion arrived at by the labor tribunals that she engaged in “disgraceful and immoral conduct.” Without more, pregnancy out of wedlock “is not enough to characterize the petitioner’s conduct as disgraceful or immoral. There must be substantial evidence to establish that pre-marital sexual relations and, consequently, pregnancy out of wedlock, are indeed considered disgraceful or immoral.”

Determining disgraceful and

immoral conduct

The Court held that “the determination of whether a conduct is disgraceful or immoral involves a two-step process: first, a consideration of the totality of the circumstances surrounding the conduct; and second, an assessment of the said circumstances vis-à-vis the prevailing norms of conduct, i.e., what the society generally considers moral and respectable.” It further stated that her employment by a Catholic school “per se does not absolutely determine whether her pregnancy out of wedlock is disgraceful or immoral. There is still a necessity to determine whether the petitioner’s pregnancy out of wedlock is considered disgraceful or immoral in accordance with the prevailing norms of conduct.”

Interestingly, the Court made a distinction between public and secular morality versus religious morality. The distinction “is important because the jurisdiction of the Court extends only to public and secular morality. As cited by the Court:

“The morality referred to in the law is public and necessarily secular, not religious x x x. Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms. Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. xxx Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x.”

Extramarital relations with between unmarried persons

is not disgraceful and immoral

Under these tests, two things may be concluded from the fact that an unmarried woman gives birth out of wedlock with respect to administrative cases: (i) if the father of the child is single, then the woman is not ordinarily liable for disgraceful and immoral conduct and (ii) if the father is married to someone else, then, then there is a cause for administrative sanction against either of them. The “disgraceful and immoral conduct” consists of having extramarital relations with a married person. “The sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union.”

When the law refers to morality – it is public

and secular morality, not religious morality

The Court, applying those doctrines to the case, stated that that “the right of an employee to security of tenure is protected by the Constitution. Perfunctorily, a regular employee may not be dismissed unless for cause provided under the Labor Code and other relevant laws, in this case, the 1992 MRPS. As stated above, when the law refers to morality, it necessarily pertains to public and secular morality and not religious morality. Thus, the proscription against “disgraceful or immoral conduct” under Section 94(e) of the 1992 MRPS, which is made as a cause for dismissal, must necessarily refer to public and secular morality. Accordingly, in order for a conduct to be considered as disgraceful or immoral, it must be “‘detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society’ and not because the conduct is proscribed by the beliefs of one religion or the other.”

The Court did “not find any circumstance” xxx “to conclude that the petitioner committed a disgraceful or immoral conduct. It bears stressing that the petitioner and her boyfriend, at the time they conceived a child, had no legal impediment to marry. Indeed, even prior to her dismissal, the petitioner married her boyfriend, the father of her child. As the Court has previously held, “there is no law which penalizes an unmarried mother by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons; that neither does such situation contravene any fundamental state policy enshrined in the Constitution.”

Her conduct “viewed against the prevailing norms of conduct,” xxx “cannot be considered as disgraceful or immoral; such conduct is not denounced by public and secular morality. It may be an unusual arrangement, but it certainly is not disgraceful or immoral within the contemplation of the law. To stress, pre-marital sexual relations between two consenting adults who have no impediment to marry each other, and, consequently, conceiving a child out of wedlock, gauged from a purely public and secular view of morality, does not amount to a disgraceful or immoral conduct under Section 94(e) of the 1992 MRPS.”

Contrary to the labor tribunals’ declarations, the Court also found that the school “failed to adduce substantial evidence to prove that the petitioner conduct caused grave scandal to the school and its students.” Since she was only a non-teaching personnel; her interaction with the students is minimal.

In termination cases, “the burden of proving that the dismissal of the employees was for a valid and authorized cause rests on the employer.” However, there was no valid ground for dismissal as her “conduct is not considered by law as disgraceful or immoral.” As admitted, the school at the time did not have “any policy or rule against an employee who engages in pre-marital sexual relations and conceives a child as a result thereof.” With no basis in law or in its policy and rules, the dismissal was “despotic and arbitrary and, thus, not a valid exercise of management prerogative.” The Court awarded her “separation pay, in lieu of actual reinstatement, full backwages and attorney’s fees, but not to moral and exemplary damages.”

The moral of the story appears to be that even for a Catholic school, secular and not religious standards will prevail. This highlights another separation, not of Church and State, but between Church and Court, at least when it comes to norms of conduct.

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TEACHING BAD (Yes, a Teacher Can Be Held Liable For Humiliating A Student)

2015-03-18T15:49:00.000+08:00

By Siesta-friendly

When teachers are the bullies, it is not bullying, it is ABUSE …
and should not be tolerated!

Recently, a high school senior committed suicide after being allegedly “bullied” by his teacher.

Nothing can match the heartbreak knowing that someone has hurt a child. The devastation is unspeakable when the hurt child loses his life as a result.

After reading insensitive and condemnatory online comments against the student and his family for considering filing charges against his teacher, we have to say that “condemnation without investigation is the height of ignorance” [unknown origin]. But we digress.

Based on Merriam-Webster online, “bully” is defined as -

Bully    : [noun] one habitually cruel to others who are weaker
              :[verb] to frighten, hurt, or threaten (a smaller or weaker person)
            : [verb] to cause (someone) to do something by making threats or insults or by using
            force

Thus, a teacher who humiliates, insults, threatens, or hurts a student is a bully; not to mention someone who is acting in abuse of his/her authority.

If we begin by choosing to value that both ourselves and our students have a HUMAN DIGNITY,

then we have a COMMON GROUND to establish a LEARNING RELATIONSHIP.

- Dale Knepper

It is distressing that despite the 25th anniversary this year of the Convention on the Rights of the Child (CRC), those in society who are given the custody and care of children are still lacking much in awareness, sensitivity and concern that, as the CRC’s Preamble states, children are “entitled to special care and assistance”, should be raised in an “atmosphere of happiness, love and understanding”, and, “by reason of [their] physical and mental immaturity, [need] special safeguards and care”.

And we are not exactly lacking in laws, rules and regulations made especially for the welfare of children and specifically applicable to teachers (and schools) regarding their roles towards their students: the Constitution, the Family Code, the Civil Code, the Anti-Bullying Act, and DepEd Order No. 40 s. 2012.

TEACHERS: Let your light shine so brightly

that others can see their way out of the dark.

1987 Constitution

The 1987 Constitution specifically provides, under Section 3 (2) of Article XIV (EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS), that all educational institutions shall “foster love of humanity, respect for human rights, … strengthen ethical and spiritual values, develop moral character and personal discipline“.

Bullying, as specifically addressed in the Anti-Bullying Act of 2013, includes causing emotional damage and distress.

Dear Teacher: the child that you like least
is probably the child who needs you the most.

Anti-Bullying Act of 2013

Included in the definition of bullying in Sec. 2 of R.A. 10627 (“An Act Requiring All Elementary And Secondary Schools To Adopt Policies To Prevent And Address The Acts Of Bullying In Their Institutions” or the “Anti-Bullying Act of 2013”) is –

“materially and substantially disrupting the education process or the orderly operation of a school; such as, but not limited to, the following:

xxx

a. Any act that causes damage to a victim’s psyche and/or emotional well-being;

b. Any slanderous statement or accusation that causes the victim undue emotional distress like directing foul language or profanity at the target, name-calling, tormenting and commenting negatively on victim’s looks, clothes and body; and

xxx”

Complaints of bullying and other acts shall be within the exclusive jurisdiction of the DepEd or the private school and shall not be brought for amicable settlement before the Barangay, subject to existing laws, rules and regulations. Complaints for acts covered by other laws shall be referred to the appropriate authorities. (Section 10.A)

While defining child abuse to include psychological abuse and emotional maltreatment, DepEd Order No. 40 s. 2012 also considers causing mental or emotional suffering as violence committed on a child.

“School should be a safe place for all students to learn and play

and it is the job of each teacher and administrator to ensure that safety.”

DepEd Child Protection Policy

Pursuant to Section 3 (2), Article XIV of the Constitution and the Convention on the Rights of the Child, the Department of Education issued DepEd Order No. 40 s.2012, the “DepEd Child Protection Policy” (or the “Policy and Guidelines on Protecting Children in School from Abuse, Violence, Exploitation, Discrimination, Bullying and Other Forms of Abuse”).

Under Sec. 3.I, “[C]hild abuse refers to the maltreatment of a child, whether habitual or not, which includes any of the following:

1) psychological or 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;

xxx”

In addition, Section 3.L states that “[v]iolence against children committed in schools refers to a single act or a series of acts committed by school administrators, academic and non-academic personnel against a child, which result in or is likely to result in physical, sexual, psychological harm or suffering, or other abuses including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

xxx

3. Psychological violence refers to acts or omissions causing or likely to cause mental or emotional suffering of the child, such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, deduction or threat of deduction from grade or merit as a form of punishment, and repeated verbal abuse.

4. Other acts of violence of a physical, sexual or psychological nature that are prejudicial to the best interest of the child.“

We note that Sec. 3.P sets the following guidelines for educators -

“Positive and Non-Violent Discipline of Children - is a way of thinking and a holistic, constructive and pro-active approach to teaching that helps children develop appropriate thinking and behavior in the short and long-term and fosters self-discipline. It is based on the fundamental principle that children are full human beings with basic human rights. Positive discipline begins with setting the long-term goals or impacts that teachers want to have on their students’ adult lives, and using everyday situations and challenges as opportunities to teach life-long skills and values to students

While Sec. 8 emphasizes the “Duties and Responsibilities of School Personnel” as follows:

“Article 218 of the Family Code of the Philippines provides the following responsibilities of school administrators, teachers, academic and non- academic and other personnel:

Exercise special parental authority and responsibility over the child while under their supervision, instruction and custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution.

Articles 220 and 233 of the Family Code of the Philippines, Presidential Decree No. 603, and other related laws enumerated the following duties and responsibilities of the abovementioned persons and personnel over the children under their supervision, instruction and custody:

Keep them in their company and support, educate and instruct them by right precept and good example;
Give them love and affection, advice and counsel, companionship and understanding;
Enhance, protect, preserve and maintain their physical and mental health at all times;
Furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company and prevent them from acquiring habits detrimental to their health, studies and morals;
Represent them in all matters affecting their interests;
Inculcate the value of respect and obedience;
Practice positive and non-violent discipline, as may be required under the circumstances; provided, that in no case shall corporal punishment be inflicted upon them;
Perform such other duties as are imposed by law upon them, as substitute parents or guardians; and
School personnel shall also strictly comply with the school’s child protection policy.“

Finally, under Section 20, “[a] complaint for child abuse, violence, exploitation or discrimination in a private school shall be filed with the School Head/Chief Executive Officer and shall be acted upon pursuant to the school’s rules of procedures on administrative cases. The penalty shall be that which is provided by the rules of the school, subject to the requirements of due process. The administrative case shall be without prejudice to any civil or criminal case that may be filed.” [emphasis supplied]

The best part of teaching is that it matters.
The hardest part of teaching is that every moment matters, every day.
– Todd Whitaker

Family Code

The Ant-Bullying Act and DepEd Order No. 40 s. 2012 cited above are specifically applicable to primary and secondary school students, regardless of age.

The following Family Code (E.O. 209) provisions on Parental Authority apply to unemancipated minors –

“Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;

(2) To give them love and affection, advice and counsel, companionship and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;

(5) To represent them in all matters affecting their interests;

(6) To demand from them respect and obedience;

(7) To impose discipline on them as may be required under the circumstances; and

(8) To perform such other duties as are imposed by law upon parents and guardians. (316a)”

Those exercising parental authority include teachers pursuant to Art. 218 and 233 –

“Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a)

xxx

Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. (n)”

… what you say and do to other people in your life holds power –

the power to lift someone from the depths of darkness,

or rip them to shreds.
- Kate Walton

Civil Code

But even without legal provisions focused solely on the welfare of students and minors, our laws recognize that there are certain acts, though not deemed criminal, are actionable nonetheless because they have caused damage. Some of these are acts are called quasi-delicts and are covered by the Civil Code -

“Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.”

Children have distinct needs and rights; and because of their age and immaturity, children need special protection. We have the laws to protect children and their human rights. We need to make sure everyone in society – especially those with parental authority over children – knows and observes them and are appropriately punished for breaking them. We adults should know better and need to step up.

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WHAT IS A CEASEFIRE AGREEMENT FOR? (Respecting the rules under the ceasefire agreement would have prevented the deadly misencounter at Mamasapano)

2015-02-10T17:04:00.000+08:00

By Siesta-friendly

Despite the reported Philippine National Police – Special Action Forces’ killing of South East Asia’s most wanted terrorist Zulkifli bin Hir (aka Marwan) on January 25, 2015, the words the Fallen 44 are those that will be etched in our collective consciousness.

On January 30, 2015, in his eulogy during the memorial services for their fallen comrades, PNP-SAF officer-in-charge Chief Supt. Noli Taliño asked “Is it worth it? One international terrorist, equivalent to 44 SAF troopers?”

Of course, stated that way, it is. Marwan, after all, is one of the world’s most wanted terrorists – a suspected bombmaker for the Jemaah Islamiyah group responsible for the 2002 bombings in Bali which killed 202 people The FBI has a $5M bounty on his head.

And Marwan’s killing likely prevented the death of many more innocents. But were the risks worth it? By ignoring the mechanisms - agreed upon by the GPH and the MILF - regarding the pursuit and apprehension of criminals, the SAF left the MILF unaware that the dozens of heavily armed SAF men entering their area were not on a warpath while placing innocent civilians in the middle of a possible crossfire.

Oplan Exodus’ cost was thus way beyond the Fallen 44. News reports indicate that apart from the Fallen 44, there were 12 injured SAF, 4 civilians who died including a 8-year old girl, 3 civilians injured and 6,000 who fled to evacuation centers. The MILF, on the other hand, lost 18 of their men with 14 injured. All these, on top of the peace process which the operation put on the brink of collapse.

Precious peace

"What we have is a war. A real war that necessitated the assistance of the international community for us to reach this point."

Such was Moro National Liberation Front (MNLF) chairman Abul Khayr Alonto’s succinct reminder of the state of affairs between the GPH and the MILF - in a Senate hearing on the constitutionality of the proposed Bangsamoro Basic Law a week after the "misencounter".

And because of this war, there is an existing ceasefire agreement - along with operational guidelines - precisely to stop the decades-long hostilities and mounting casualties and pursue the peace process. The historical animosity between the GPH and MILF are reflected in the guidelines’ list of prohibited hostile acts that even certain acts - not necessarily hostile - have been deemed provocative and declared prohibited too.

Pursuant to the ceasefire agreement, mechanics were agreed upon detailing how criminal elements - including high profile targets - were to be pursued and apprehended. In all instances, the pursuit and apprehension are supposed to be done with close coordination between GPH and MILF authorities.

The ceasefire agreement has existed since 1997. All agreements relevant to the ceasefire are public documents and can even be easily accessed on the website of the Office of the Presidential Advisor on the Peace Process. So no one can feign ignorance. Then, why pursue a police operation as if these agreements didn't exist? Why would any member of either party deem itself exempt from the scope of these agreements?

The Agreement For General Cessation of Hostilities and the Implementing Operational Guidelines of the Agreement on the General Cessation of Hostilities

On July 18, 1997, the loss and displacement of thousands of lives finally led the Government of the Philippines (GPH) and the Moro National Liberation Front (MILF) to enter into the Agreement For General Cessation of Hostilities On November 14, 1997, the Implementing Operational Guidelines of the Agreement on the General Cessation of Hostilities were then signed.

Why did the masterminds of Oplan Exodus ignore the ceasefire agreement meant precisely to stop the violent, deadly clashes between muslim rebels and government forces?

Did they not read and understand the Implementing Operational Guidelines which enumerated prohibited hostile acts including the following:

"a. Terroristic acts such as kidnapping, hijacking, piracy, sabotage, arson, bombings, grenade throwing, robberies, liquidations/assassinations, unjustified arrest, torture, unreasonable search and seizure, summary execution, as well as burning of houses, places of worship and educational institutions, destruction of properties, and abuse of civilians.

b. Aggressive action such as attacks, raids, ambuscades, landminings, and offensive military actions such as shelling, reconnoitering, and unjustified massing of troops.” (Article I) [emphasis supplied]

xxx

Did they forget that the Guidelines listed prohibited provocative acts including the following:

xxx

"c. Massive deployment and/or movement of GRP and MILF forces which are not normal administrative functions and activities.”

xxx

e. Other acts that endanger the safety and security of the people and their properties; and/or that which contribute to the deterioration of peace and order, such as blatant display of firearms. (Article I) [emphasis supplied]

Did they just decide that Guidelines Ground Rules Article III did not matter:

"1. The GRP and MILF shall desist from committing any prohibited hostile and provocative acts, as described in these Implementing Guidelines and Ground Rules. (Article III) [emphasis supplied]

xxx”

And how can they neglect Article II of the Guidelines which says:

“Actions Exempted from Cessation of Hostilities Police and military actions and administrative/logistic activities shall continue to be undertaken by the GRP throughout Mindanao and the entire country. In the pursuit thereof, confrontational situations between the GRP and the MILF forces shall be avoided by prior coordination with the latter...” [emphasis supplied]

Yes, there are allegations of excessive use of force, confiscation of SAF arms and personal effects, and coddling of terrorists, by the MILF. Pursuant to the Guidelines, those concerns - like the pursuit and apprehension of criminal elements - are for the Coordinating Committees on Cessation of Hostilities to handle .

Pursuing Criminal Elements under the Ceasefire Agreement

Apart from the ceasefire agreement and operational guidelines, there were mechanisms in place to handle the pursuit and apprehension of criminal elements. On May 6, 2002, the “Joint Communique Between Government of the Philippines and the Moro National liberation Front” was signed for the purpose of the “isolation and interdiction of all criminal syndicates and kidnap-for-ransom groups”. On February 15, 2012, the “Implementing Guidelines On The Joint Communique of 6 May 2002” was signed.

Under the Joint Communique, “[t]he MILF and the GRP shall form an Ad Hoc Joint Action Group [AHJAG] against criminal elements in order to pursue and apprehend such criminal elements. The Group will operate in tandem with their respective Coordinating Committees on the Cessation of Hostilities (CCCH).”” (Paragraph 4)

The Implementing Guidelines defined Criminal Syndicates/Kidnap-For-Ransom Groups as “a group or aggrupation of persons who engage in criminal activities as defined by the AHJAG” and Criminal Elements as “within the purview of AHJAG, refers to a leader/member of a criminal syndicate of kidnap for ransom group as distinguished from common criminals.” (Definition of Terms)

The Mechanics of Implementation are laid down in Paragraph VI of the Implementing Guidelines:

"1. The AFP/PNP shall convey to the MILF through the AHJAG the Order of Battle … containing the names and identities of the criminal elements …

2. The MILF through the AHJAG shall validate and subsequently act on the information as contained in the Order of Battle.

3. The MILF further shall provide information, as available, on other suspected criminal elements in their areas/communities that come to their attention.

4. The AHJAG shall coordinate with the AFP/PNP and MILF/BIAF [Bangsamoro Islamic Armed Force] to effect the apprehension and arrest of the suspected criminal elements.

5. To avoid unnecessary armed confrontations, the displacement of communities and damage to properties, the Tactical Operations Center (TOC) or Tactical Command Post (TCP) of the government operating forces and with the MILF forces in the area shall work and coordinate closely with the AHJAG and vide versa.

6. Except for operations against high priority targets, a list of which shall be provided by the GPH panel to the MILF panel, the AHJAG shall inform the GPH and the MILF CCCH at least 24 hours prior to the conduct of the AFP/PNP operations in order to allow sufficient time for the evacuation of civilians and to avoid armed confrontation between the GPH and MILF forces.

xxx”

Why were these procedures ignored?

Assuming the SAF mistakenly believed that their operations against a high priority target like Marwan did not need the minimum 24-hour notice required under paragraph 6 above, paragraphs 1-5 still required coordination with the AHJAG. In fact, since it is the AHJAG that is required to give the 24-hour notice, it is the AHJAG that is exempt from giving the 24-hour notice - not the GPH, AFP nor PNP.

The SAF commander, Police Director Getulio Napeñas, has admitted that –

“It was a command decision and we had been working on it for a long time and as a commander, I decided that it was best not to inform other units in the police and the Armed Forces of the Philippines about the plan of initiating the actual assault. It was a judgment call and I take full responsibility,” Napeñas, the SAF commander, told this reporter in an interview on Tuesday evening.

Seriously, what were all these agreements for?

In his eulogy, PNP-SAF OIC Chief Supt. Taliño immediately answered his questions “Is it worth it? One international terrorist, equivalent to 44 SAF troopers?” with “I am sure, if you will ask them, it is worth it.” But who can say that the deaths of the 4 civilians including that of 8-year old Sampulna Panangulon were worth it?

There is a comprehensive peace process ongoing – a very public, multi-national, decades-long peace process. Whoever are responsible for Oplan Exodus have betrayed and sacrificed all and sundry - the Fallen 44 SAF, the Fallen 18 MILF, the injured, the innocents who died and their loved ones, the 6,000 evacuees, the peace process, the country and our international partners for peace.

Within the same day of this tragedy, the doubters, warmongers, peace hindrances came out. No one said the path to peace is easy. But we can easily recall history – lost lives, displaced people, hindered progress and development – to remind us the alternative to peace and why we should honor the ceasefire agreement and resume the cessation of hostilities.

"During the hearing, Alonto criticized those who are calling on the government to abandon the peace negotiations and to restart military operations against the MILF. He pointed out that at least 200,000 people have died in the decades-long conflict in Mindanao, with 2 million rendered homeless and 3 million scattered as refugees.

"Those who call for war and the suspension of the peace process are people who even in their nightmares would never know the horrors and cruelties of war that the people in Mindanao, Muslims and Christians, have been subjected to in all those decades, neither do they know the pain of losing loved ones to war ..."

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RETURN FIRE (Some possibilities to address indiscriminate firing)

2015-01-27T15:02:00.000+08:00

By Siesta-friendly

Idiots’ Discharge

Idiots do not learn, nor do they care, from other people’s experiences. This is why idiots are also known as nitwits (with wits the size of lice), peabrained (with brains the size of peas), pinheads (with brains the size of pins), airheads (with not even a brain in their heads), and so on.

Idiots with guns are some of the worst because their mental capacity cannot make the connection between their act of indiscriminately firing dangerous weapons and the harm their acts can bring about. As evidenced by the continued deaths and injuries from stray bullets (especially by young children) – new year after new year - stray bullets do not make idiots stop and think and refrain from indiscriminately firing guns to celebrate the coming year.

Unfortunately, there is no cure for stupidity.

But while we cannot cure, it doesn’t mean we cannot prevent. Or at least try.

Presently, indiscriminate firing is punished under Art. 155 of the Revised Penal Code as follows:

Art. 155. Alarms and scandals. — The penalty of arresto menor or a fine not exceeding P200 pesos shall be imposed upon:

1. Any person who within any town or public place, shall discharge any firearm, rocket, firecracker, or other explosives calculated to cause alarm or danger;

xxx

Imposing a fine of P200 or the penalty of arresto menor (i.e., imprisonment for 1 day to 30 days) for discharging a firearm does seem to indicate any firm desire to stop harmful behavior.

Ready, Aim, File!

There is a pending bill (House Bill No. 6819) – even citing the 2013 new year’s eve still unsolved death of 7-year old Stephanie Nicole Ella from a stray bullet – that seeks to increase the penalty from arresto menor to prision correccional in its maximum period (i.e., 4 years to 6 years); and if the perpetrator is a member of the PNP or AFP or a law enforcement officer and the discharge is not in the performance of official duties, the penalty is reclusion temporal in its maximum period (i.e., 17 years to 20 years). The penalties, of course, will change if the facts constitute a crime with a higher imposable penalty. And if the indiscriminate firing causes death, the penalty is reclusion perpetua (i.e., 30 years).

We only wonder why this is not yet law.

Rats are most welcome

Apart from pushing for this bill to become law, we can also choose to exercise our civic (if not humanitarian) duties by reporting any indiscriminate firing we witness and by providing any helpful information to prevent indiscriminate firing or in order to nab the perpetrators.

Gun registration amnesty?

Perhaps we may be able to put more guns in the registry - we assume there is a computerized one - by allowing a one-time free registration for all delinquent gun owners. Then, spent bullets may be easier to trace.

SOCO and NBI may need CSI upgrade

Maybe our law enforcers can also upgrade their techniques and equipment to be able to check all possible angles and trajectories bullets take to be able to find the source.

By themselves, guns don’t kill, bullets don’t kill, humans don’t kill. Combined, they can be lethal. So we have to do all we can to make humans handle lethal weapons responsibly. And when they don’t, we must do all we can to make them responsible for the consequences of their acts.

Were it only possible that all bullets fired so carelessly be returned to sender.

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SENIOR’S MOMENT: Mandatory Philhealth Coverage For All Senior Citizens

2014-11-21T09:28:00.000+08:00

By Siesta-friendly

This November 2014, the government enacted Republic Act No. 10645 (“An Act Providing For The Mandatory Philhealth Coverage For All Senior Citizens, Amending For The Purpose Republic Act No. 7432, As Amended By Republic Act No. 9994, Otherwise Known As The “Expanded Senior Citizens Act Of 2010″) thereby providing Philhealth coverage to all our senior citizens.

Prior to the amendment, only indigent seniors were automatically covered by Philhealth. Now, all seniors are automatically covered.

The new law amends Section 5, sub-paragraph h(2) of RA 7432, as amended by RA 9994, and now reads as follows:

“SEC. 5. Government Assistance. – The government shall provide the following:

x x x

(h) Additional Government Assistance

(1) xxx

(2) Mandatory PhilHealth Coverage

“All senior citizens shall be covered by the national health insurance program of PhilHealth. Funds necessary to ensure the enrollment of all senior citizens not currently covered by any existing category shall be sourced from the National Health Insurance Fund of PhilHealth from proceeds of Republic Act No. 10351, in accordance with the pertinent laws and regulations.

(3) x x x.”

That’s the only amendment of the new law and so the rest of the rules apply, meaning, the same identification requirements apply. Under Art. 5.5 Rule III of the Implementing Rules and Regulations of RA 9994, our seniors need only present any of the following proofs of identification:

“5.5 IDENTIFICATION DOCUMENT – refers to any document or proof of being a senior citizen which may be used for the availment of benefits and privileges under the Act and its Rules. It shall be any of the following:

a) Senior Citizens’ Identification Card issued by the Office of Senior Citizens Affairs (OSCA) in the city or municipality where the elderly resides;

b) The Philippine passport of the elderly person or senior citizen concerned; and

c) Other valid documents that establish the senior citizen or elderly person as a citizen of the Republic and at least sixty (60) years of age, which shall include but not be limited to the following government-issued identification documents indicating an elderly’s birthdate or age: driver’s license, voters ID, SSS/GSIS ID, PRC card, postal ID.”

The aged do matter and this is the time when they need coverage the most.

An early Happy Christmas to all Seniors!

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WHEN CAR MAKERS GIVE YOU LEMONS, YOU’D WISH YOU COULD MAKE LEMONADE: The “Philippine Lemon Law”

2014-08-05T10:55:00.001+08:00

By Obiter07

First, we have to mention that prior to this new law, car buyers turned to the Civil Code provisions on warranties against hidden defects (Arts 1561-1581). Under the Civil Code, car buyers have “6 months, from the delivery of the thing sold” (Art. 1571) to “elect between withdrawing from the contract and demanding a proportionate reduction of the price, with damages in either case” (Art 1567).

Now here comes Republic Act No. 10642, “AN ACT STRENGTHENING CONSUMER PROTECTION IN THE PURCHASE OF BRAND NEW MOTOR VEHICLES” has been signed into law and is set to take effect on August 7, 2014 (The Philippine Star, July 20, 2013, p. B-2). This new “Philippine Lemon Law” has laudable objectives as it seeks to “to promote full protection to the rights of consumers in the sale of motor vehicles against business and trade practices which are deceptive, unfair or otherwise inimical to consumers and the public interest.” In addition, it recognizes that “a motor vehicle is a major consumer purchase or investment and the rights of consumers should be clearly defined, including the means for redress for violations thereof (Section 2)”.

But a law truly aimed to protect consumers from defective products should at the onset already provide the alternative remedies of repair, replacement or refund. This law does not and actually gives car manufacturers, distributors, dealers or retailers plenty of ways to delay a refund or replacement and even opportunities to earn from the defective product.

Period of Protection:

1 year or 20 kilometers

It should be noted that only brand-new vehicles are covered and provided that a “nonconformity” (non-repairable defect, to the layman) occurs within 12 months from delivery or up to 20,000 kilometers, whichever comes first”:

“SEC. 4. Coverage. – This Act shall cover brand new motor vehicles purchased in the Philippines reported by a consumer to be in nonconformity with the vehicle’s manufacturer or distributor’s standards or specifications within twelve (12) months from the date of original delivery to the consumer, or up to twenty thousand (20,000) kilometers of operation after such delivery, whichever comes first. xxx”

A nonconformity “refers to any defect or condition that substantially impairs the use, value or safety of a brand new motor vehicle which prevents it from conforming to the manufacturer’s or distributor’s standards or specifications, which cannot be repaired (Section 3 [k]).”

Unfortunately and inexplicably, only four-wheel passenger vehicles are included. Purchasers of motorcycles, scooters and heavy equipment will just have to seek relief elsewhere. Under the Act -

“Motor vehicle refers to any self-propelled, four (4) wheeled road vehicle designed to carry passengers including, but not limited to, sedans, coupes, station wagons, convertibles, pick-ups, vans, sports utility vehicles (SUVs) and Asian Utility Vehicles (AUVs) but excluding motorcycles, delivery trucks, dump trucks, buses, road rollers, trolley cars, street sweepers, sprinklers, lawn mowers and heavy equipment such as, but not limited to, bulldozers, payloaders, graders, forklifts, amphibian trucks, cranes, and vehicles which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating (Section 3 [j]);”

There can be no claim if the “nonconformity” arises from: “(a) Noncompliance by the consumer of the obligations under the warranty; (b) Modifications not authorized by the manufacturer, distributor, authorized dealer or retailer; (c) Abuse or neglect of the brand new motor vehicle; and (d) Damage to the vehicle due to accident or force majeure (Section 4).” A purchaser would be well-advised not to dress up or modify his vehicle lest this void his possible claims under this law. Or he should get written confirmation that it is authorized.

The law may have been initially drafted to protect consumers but we wonder how much influence car manufacturers, distributors, dealers or retailers had in the final result.

3 plus 1 strikes

It could be supposed that for a brand new car, 1 or 2 repair attempts should be enough to correct the problem. However, 4 attempts is what the law allows. And having a replacement assembly so early seems doubtful. And from when will the 12 months for the new assembly be reckoned from?

What benefits does the law give to the consumer? After four strikes, the manufacturer, distributor, authorized dealer or retailer may be out. There are only four (4) repair attempts allowed. However, these should be performed by the same entity. A buyer should be wary of any attempt for the repairs to be passed on to another party.

“SEC. 5. Repair Attempts. – At any time within the Lemon Law rights period, and after at least four (4) separate repair attempts by the same manufacturer, distributor, authorized dealer or retailer for the same complaint, and the nonconformity issue remains unresolved, the consumer may invoke his or her rights under this Act. (Emphasis supplied)

The repair may include replacement of parts components, or assemblies.”

Requirement for Notice

If the 4 repairs prove unavailing, then the consumer should send a written notice, the form of which must be based on what is prescribed in the warranty booklet. Why was discretion both for the manner and form of the notice given to the car sellers in this case? It is worrying that unduly burdensome requirements may be imposed when a simple e-mail or facsimile should suffice.

“SEC. 6. Notice of Availment of Lemon Law Rights. – Before availing of any remedy under this Act and subject to compliance with the provisions of Section 5 hereof, the consumer shall, in writing, notify the manufacturer, distributor, authorized dealer or retailer of the unresolved complaint, and the consumer’s intention to invoke his or her rights under this Act within the Lemon Law rights period.

The warranty booklet issued by the manufacturer, distributor, authorized dealer or retailer shall clearly state the manner and form of such notice to constitute a valid and legal notice to the manufacturer, distributor, authorized dealer or retailer. It shall also clearly state the responsibility of the consumer under this section.” (Emphasis supplied)

3 plus 1 plus another one!

But wait, after 4 repair opportunities and the buyer having sent the notice, the seller is given one final opportunity to remedy the matter! Considering how long some repairs might take, a buyer may just about consume almost a year just waiting for his car to be fixed. And if the car doesn’t run or does not run well or safely, how is he is supposed to bring it in for repairs? If it’s towed, who pays for it?

“SEC. 7. Availment of Lemon Law Rights. – Subsequent to filing the notice of availment referred to in the preceding section, the consumer shall bring the vehicle to the manufacturer, distributor, authorized dealer or retailer from where the vehicle was purchased for a final attempt to address the complaint of the consumer to his or her satisfaction.

It shall be the duty of the manufacturer, distributor, authorized dealer or retailer, upon receipt of the motor vehicle and the notice of nonconformity required under Section 6 hereof, to attend to the complaints of the consumer including, as may be necessary, making the repairs and undertaking such actions to make the vehicle conform to the standards or specifications of the manufacturer, distributor, authorized dealer or retailer for such vehicle.”

One better return the vehicle within 30 days after this “final attempt” or else it is deemed successful and everything can start all over again! Section 7 states that: “if the vehicle is not returned for repair, based on the same complaint, within thirty (30) calendar days from the date of notice of release of the motor vehicle to the consumer following this repair attempt within the Lemon Law rights period, the repair is deemed successful: Provided, finally, That, in the event that the nonconformity issue still exists or persists after the thirty (30)-day period but still within the Lemon Law rights period, the consumer may be allowed to avail of the same remedies under Sections 5 and 6 hereof.” Woe to you if a different problem manifests itself as only the “same complaint” is covered.

Filing the Complaint

If the conformity persists, the consumer may then file a complaint before the DTI. But wait, wasn’t this venue open to the consumer even before this law was passed? Anyway, under the Lemom Law –

“In case the nonconformity issue remains unresolved despite the manufacturer, distributor, authorized dealer or retailer’s efforts to repair the vehicle, pursuant to the consumer’s availment of his or her Lemon Law rights, the consumer may file a complaint before the DTI as provided for under this Act: xxx (Section 7)”.

Transportation Allowance

The new law does give the consumer a transportation allowance during the time of non-usage and while availing of his Lemon law rights. We trust that the allowance is due as early as when the first repair was made necessary.

“To compensate for the non-usage of the vehicle while under repair and during the period of availment of the Lemon Law rights, the consumer shall be provided a reasonable daily transportation allowance, an amount which covers the transportation of the consumer from his or her residence to his or her regular workplace or destination and vice versa, equivalent to air-conditioned taxi fare, as evidenced by official receipt, or in such amount to be agreed upon by the parties, or a service vehicle at the option of the manufacturer, distributor, authorized dealer or retailer. Any disagreement on this matter shall be resolved by the DTI.

Nothing herein shall be construed to limit or impair the rights and remedies of a consumer under any other law (Section 7).”

While useful, it does not take into account the added hassle of finding a taxi during rush hour.

Dispute Resolution

The consumer will then go before the DTI for mediation with the costs thereof to be borne jointly by the parties (Section 8). Why not let the winning party recover his losses, costs and expenses? If this is unsuccessful, then the dispute will be resolved by either arbitration, if voluntarily agreed upon by both parties or an adjudication before the DTI which can be commenced by either party.

SEC. 8. Remedies for Dispute Resolution. – The DTI shall exercise exclusive and original jurisdiction over disputes arising from the provisions of this Act. Thus, car buyers can no longer go straight to court but have to go through dispute resolution first before the DTI. And remember, DTI dispute resolution only happens after 5 repair attempts. All disputes arising from the provisions of this Act shall be settled by the DTI in accordance with the following dispute resolution mechanisms:

(a) Mediation

(1) The principles of negotiation, conciliation and mediation towards amicable settlement between the manufacturer, distributor, authorized dealer or retailer and the consumer shall be strictly observed;

(2) In the course of its dispute resolution efforts, the DTI shall endeavor to independently establish the validity of the consumer’s outstanding complaint. The DTI shall likewise retain the services of other government agencies or qualified independent private entities in the ascertainment of the validity of the consumer’s complaint. Any cost incurred in establishing the validity of the consumer’s complaint shall be borne jointly by the consumer and the manufacturer, distributor, authorized dealer or retailer;

(3) The complaint shall be deemed valid if it is independently established that the motor vehicle does not conform to the standards or specifications set by the manufacturer, distributor, authorized dealer or retailer (shouldn’t this determination already settle the matter in the consumer’s favor?) ;

(4) Upon failure of the negotiation or mediation between the manufacturer, distributor, authorized, dealer or retailer and the consumer, the parties shall execute a certificate attesting to such failure; and

(5) At any time during the dispute resolution period, the manufacturer, distributor, authorized dealer or retailer and the consumer shall be encouraged to settle amicably. All disputes that have been submitted for mediation shall be settled not later than ten (10) working days from the date of filing of the complaint with the DTI.

(b) Arbitration

In the event there is a failure to settle the complaint during the mediation proceedings, both parties may voluntarily decide to undertake arbitration proceedings.

(1) In the event that both parties do not undertake arbitration proceedings, at least one of the parties may commence adjudication proceedings, administered by the DTI. The DTI shall rely on the qualified independent findings as to conformity to standards and specifications established herein. In no case shall adjudication proceedings exceed twenty (20) working days;

(2) In case a finding of nonconformity is arrived at, the DTI shall rule in favor of the consumer and direct the manufacturer, distributor, authorized dealer or retailer to grant either of the following remedies to the consumer:

(i) Replace the motor vehicle with a similar or comparable motor vehicle in terms of specifications and values, subject to availability; or

(ii) Accept the return of the motor vehicle and pay the consumer the purchase price plus the collateral charges.

In case the consumer decides to purchase another vehicle with a higher value and specifications from the same manufacturer, distributor, authorized dealer or retailer, the consumer shall pay the difference in cost.

In both cases of replacement and repurchase, the reasonable allowance for use, as defined in this Act, shall be deducted in determining the value of the nonconforming motor vehicle (Amazing. Charging the consumer for using a defective product which he was not allowed to have replaced or returned and be refunded for in the first place); and

(3) In case a nonconformity of the motor vehicle is not found by the DTI (which nonconformity was already determined upon filing of the complaint), it shall rule in favor of the manufacturer, distributor, authorized dealer or retailer, and direct the consumer to reimburse the manufacturer, distributor, authorized dealer or retailer the costs incurred by the latter in validating the consumer’s complaints.”

The term “reasonable allowance for use” shall be computed at “twenty percent (20%) per annum deduction from the purchase price, or the product of the distance traveled in kilometers and the purchase price divided by one hundred thousand (100,000) kilometers, whichever is lower (Section 9).” Why does have one to pay 20% for a vehicle which failed to run correctly in the first place and still doesn’t do so after 5 repair attempts?

Collateral charges are “fees paid’ to the Land Transportation Office (LTO) for the registration of a brand new motor vehicle and other incidental expenses such as, but not limited to, the cost of insurance pertaining to the vehicle, chattel mortgage fees and interest expenses if applicable (Section 3 [b]).” [Italics supplied]

The decision can be appealed to the DTI Secretary on grounds of: “(i) Grave abuse of discretion; (ii) The decision/order is in excess of jurisdiction or authority of the Adjudication Officer; and (iii) The decision/order is not supported by the evidence or there is serious error in the findings of facts.” This is to be decided within thirty (30) days. If unsatisfied with the decision, a party may only file a case for certiorari with the Court of Appeals under Section 4, Rule 65 of the Revised Rules of Court. (Section 8)

The vehicle in question can still be resold subject to a proper disclosure on certain facts on pain of being held liable for damages in the amount of One hundred thousand pesos (P100,000.00) “without prejudice to any civil or criminal liability they and/or the responsible officer may incur under existing laws (Section 11).” After this disclosure, the “lemon law rights” seem to disappear although it is unclear what “section” is being referred to:

“SEC. 10. Disclosure on Resale. – Should the returned motor vehicle be made available for resale, the manufacturer, distributor, authorized dealer or retailer shall, prior to sale or transfer, disclose in writing to the next purchaser of the same vehicle the following information:

(a) The motor vehicle was returned to the manufacturer, distributor, authorized dealer or retailer;

(b) The nature of the nonconformity which caused the return; and

(c) The condition of the motor vehicle at the time of the transfer to the manufacturer, distributor, authorized dealer or retailer.

The responsibility of the manufacturer, distributor, authorized dealer or retailer under this section shall cease upon the sale of the affected motor vehicle to the first purchaser.” (Emphasis supplied)

The Implementing Rules are still to be issued but, offhand, the law does not seem to add that much in terms of consumer protection except to clarify the possible entitlement to transportation allowance. Worse, a consumer can be in the hole for the “reasonable allowance for use” of a clearly defective vehicle. What does one do when the legislators give you a law that appears to be a lemon? Unfortunately, there is no law against that yet and our only remedy is to replace them (the law and maybe the lawmaker).

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DAP if you do, DAP if you don’t: A question of constitutionality

2014-07-24T12:14:00.000+08:00

By Obiter07

This is a ninety-two page decision, excluding the separate opinions. But it can be distilled to the basic findings in its dispositive portion. The following acts under the Development Acceleration Program (“DAP”) of the Executive Department were declared unconstitutional in the case of Araullo, et al. vs. Aquino, et al. G.R. No. 209287:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and without complying with the statutory definition of savings contained in the General Appropriations Acts;

(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.

In addition, the Court declared void the “use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts”.

Interestingly, the decision begins with the privilege speech of currently-detained Senator Jinggoy Estrada declaring that Senators, including himself, had been allotted P50M for voting in favor of the impeachment of a former Chief Justice. To which Secretary Abad of the Department of Budget and Management responded, justifying the DAP as a “program designed to ramp up spending to accelerate economic expansion.” Ironically, a DAP beneficiary would start the ball rolling for this declaration of unconstitutionality by the Supreme Court. The President has defended the DAP anew notwithstanding the opinion of the Court.

The DAP while constitutional as a plan was implemented contrary to the Constitution

We proceed directly to the issues with respect to the DAP. The Court correctly stated that while the Executive has some discretion with respect to the budget, any transfer or appropriation of funds has to conform with Section 25(5) of Article VI of the Constitution which provides:

“Section 25. x x x

x x x x

5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

x x x x”

This was intended to keep a “tight rein on the exercise of the power to transfer funds appropriated by Congress, by the President and the other high officials of the Government named therein.” The limit on the authority to transfer savings only to augment another item in the appropriations is “strictly but reasonably construed as exclusive.” The phrase “by law” would be crucial to the determination made by the Court.

For a transfer of funds that have already been appropriated to be valid under this constitutional provision, the following are the requisites: (1) a law authorizing the transfer of funds within their respective offices (a law like the GAA); (2) the funds are savings generated from the appropriations for their respective offices; and (3) the purpose for the transfer is to augment an item in the general appropriations law for their respective offices.

Requisites for the valid transfer of appropriated funds under the Constitution -

1. There must be a law authorizing the transfer funds within respective offices

While the 2011 and 2012 GAAs allowed the augmentation of items, these failed to include the phrase “for their respective offices” as stated in the Constitution. Thus, the GAAs invalidly allowed the transfers of funds for any item even if to an office not belonging to the Executive. Hence, these particular GAAs could not be relied upon to justify the transfer of funds.

The 2013 GAA sought to remedy the lack of legal authorization in the 2011 and 2012 GAAs by indicating that the augmentation of deficiencies refers only to any item of an office’s respective appropriation.

2. The funds to be transferred must be savings generated from the appropriations for their respective offices

At the outset, the Court found that there were no savings to speak of which the Executive could have juggled. First of all, it is Congress that has the power of the purse, deciding on how the budget will be spent consisting of the projects to be funded and the amounts allocated for the same. The Executive is expected to execute the GAA and to spend the budget accordingly. In allowing the Executive to augment items in the GAA, it is given flexibility but not to the extent of overriding the authority of Congress.

Thus, the 2011 – 2013 GAAs contain a definition of savings:

“Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at a lesser cost.” [emphasis supplied]

There are savings only when the purpose for an appropriation has been fulfilled or if the need for the appropriation no longer exists. The three possible sources of savings have been outlined above. There can be savings only when the appropriation was already obligated and released. It is only at the agency level where it could be said whether the program, activity or project (“PAP”) was completed, discontinued or abandoned, if there are vacant positions or leaves without pay or if the required targets, programs and services were realized at lesser cost. Unobligated allotments should also fall under any of the three aforementioned instances before these can be considered as savings.

The DBM admitted that part of the savings came from “pooling of unreleased appropriations such as unreleased Personnel Services appropriations which will lapse at the end of the year, unreleased appropriations of slow moving projects and discontinued projects per Zero-Based Budgeting findings.” In this case, unreleased appropriations were treated as savings. The Court found that these, in fact, only refer to appropriations with allotments albeit without disbursement authority. It could not subscribe to the definition espoused by the Executive as this would undermine Congress’ power of the purse. In effect, funds were used for the DAP when the purpose for those funds had not yet been finally discontinued or abandoned. With the purpose still unfulfilled or otherwise existing, there could have been no declaration of savings from these funds. The Executive even shortened the availability of the funds for their original purposes, in order to declare them as savings. The Court ruled that there can be no withdrawal and transfer of unobligated allotments and no pooling of unreleased appropriations as there is no legal basis for the same. Section 38 of the Administrative Code cannot be relied upon to justify the withdrawal of unobligated allotments as it only allows the suspension or stoppage of expenditures, not the transfer of funds to other PAPs.

3. The purpose of the transfer must be to augment a GAA item for their respective offices

The 2011-2013 GAAs defined augmentation, to wit:

“x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act.

But the so-called savings pooled under the DAP were allocated to projects that were not covered by any appropriation in the GAAs. In one instance, the DAP allocated for one project funds in excess of 300% of what Congress originally appropriated.

In effect, the Executive “substituted its will” over Congress. While the Executive can spend in line with its mandate to execute the laws, this does not translate to an “unfettered discretion” that would allow the President to “substitute his own will for that of Congress.” He still has to abide by the GAA as the power to spend is with Congress and not the Executive consistent with the principle of separation of powers. As opined by the Court:

“Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever it deliberates and acts on the budget proposal submitted by the Executive. Its power of the purse is touted as the very foundation of its institutional strength, and underpins “all other legislative decisions and regulating the balance of influence between the legislative and executive branches of government.” Such enormous power encompasses the capacity to generate money for the Government, to appropriate public funds, and to spend the money. Pertinently, when it exercises its power of the purse, Congress wields control by specifying the PAPs for which public money should be spent.

It is the President who proposes the budget but it is Congress that has the final say on matters of appropriations. xxx”

4. No Cross-border transfers

As transfers under the DAP, for example, were made from the Executive to the COA, to the House and even to the COMELEC, the Court said that the Constitution mandates that any augmentation should only be for their respective offices and there can be no cross-border transfers or cross-border augmentations.

Respondent tried to reason out that cross-border transfers in the form of aid and not augmentation do not fall under Section 25(5) of the Constitution.

The Court said that the Section 25 (5) prohibits cross-border transfers regardless of how they are characterized.

Sourcing DAP funds from unprogrammed funds (not savings) requires revenue collections to exceed the total of revenue targets

Funds from the DAP were also sourced from unprogrammed funds in the GAAs albeit not as “savings.” However, these were supposed to be available only: (i) if revenue collections exceed revenue targets based on the total of revenue targets stated in the Budget of Expenditures and Sources of Financing (“BESF”) and (ii) from newly-approved loans or when conditions were triggered for other sources of funds such as perfected loan agreements for foreign-assisted projects. The requirement in the BESF for the use of unprogrammed funds is for revenue collections to exceed the total of the original revenue target, not just the collection from a particular revenue source. Hence, the release of unprogrammed funds could not be justified by a certification that revenue collection had been exceeded for only one identified source of revenue – that of dividends from shares in government-owned and controlled corporations.

As for funds from loans, there is no need to exceed revenue targets before these can be used.

Unprogrammed funds were intended as standby appropriations to support additional expenditures for priority PAPs if revenue collections exceed targets or if loan proceeds are realized. Revenue targets are to be considered as a whole, not individually. It would contravene the surplus budget policy if excess revenue from only one source would justify the release of unprogrammed funds.

An attempt was made to include a third source for unprogrammed funds: new revenues that were collected or realized from sources not originally considered in the BESF, to justify the sourcing of these monies for the DAP. But this source was not in the BESF or GAAs, hence, this item could not serve as basis for the release of unprogrammed funds for the DAP.

So what happens to all the DAP projects? The Court declared that despite the infirmity of the DAP and its implementing issuances, the “doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect. xxx.” Hence, the positive results of the DAP such as the construction of public infrastructure need not be undone.

But while the doctrine of operative fact can apply to the beneficiaries who “relied in good faith on the validity of the DAP”, it does not apply “to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.” Fortunately for them, the Revised Rules on Evidence does provide for a disputable presumption “That official duty has been regularly performed (Section 3 (m), Rule 131).” And “in the absence of evidence to the contrary, there is a presumption that public officers performed their official duties regularly and legally and in compliance with applicable laws, in good faith, and in the exercise of sound judgment (]BUKLOD vs. E. M. RAMOS, G.R. No. 131481. March 16, 2011)”.

For the layman, what is this case all about? The President decided to deviate from the shopping list of projects given to him by Congress, the body which has the power under the Constitution to make this list and to fund each item appearing on it. He argues that he meant well and this actually did some good. The question is, do good intentions trump what the law and the Constitution require? The President has challenged the Supreme Court for this ruling. He may do well to examine what the words of his oath of office say. It does include his promise to “preserve and defend” the Constitution and to execute the country’s laws.

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CYBER ISSUES: The Supreme Court rules on the constitutionality of the Cybercrime Prevention Act of 2012

2014-04-03T20:16:00.001+08:00

By Siesta-friendly

The Cybercrime Prevention Act of 2012 (Republic Act No. 10175) has caught the attention of lawyers and netizens alike for its alleged over-reaching provisions. Because petitions challenging the constitutionality of certain provisions of the law were filed with the SC, we shall deal not with the Act but with the SC ruling on the Act which was laid down in February 2014.

To enumerate, the assailed provisions of the Act are:

Section 4(a)(1) on Illegal Access;
Section 4(a)(3) on Data Interference;
Section 4(a)(6) on Cyber-squatting;
Section 4(b)(3) on Identity Theft;
Section 4(c)(1) on Cybersex;
Section 4(c)(2) on Child Pornography;
Section 4(c)(3) on Unsolicited Commercial Communications;
Section 4(c)(4) on Libel;
Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
Section 6 on the Penalty of One Degree Higher;
Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
Section 8 on Penalties;
Section 12 on Real-Time Collection of Traffic Data;
Section 13 on Preservation of Computer Data;
Section 14 on Disclosure of Computer Data;
Section 15 on Search, Seizure and Examination of Computer Data;
Section 17 on Destruction of Computer Data;
Section 19 on Restricting or Blocking Access to Computer Data;
Section 20 on Obstruction of Justice;
Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
Section 26(a) on CICC’s Powers and Functions.

Because they were connected with some petitioners’ issues with the Cybercrime Prevention Act in relation to libel, Articles 353, 354, 361, and 362 of the Revised Penal Code (on libel) were also assailed.

Of the 21 challenged provisions, the SC struck down 3 for being unconstitutional while the other 18 provisions were declared valid and constitutional. 2 provisions, however, were partially struck down and partially upheld:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VALID and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.

For their guidance, Information and communications technology (ICT) users are encouraged to read the law and the SC decision. Warning: the decision is 50 pages long and in single space.

Ponente Justice Abad tackled each assailed provision one by one. And so shall we.

On Illegal Access

“SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.”

The SC ruled this provision is constitutional. The petitioners claimed that the provision “fails to meet the strict scrutiny standard required of laws that interfere with the fundamental rights of the people”. In upholding the provision, the SC ruled that “no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act – accessing the computer system of another without right.”

On Data Interference

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

x x x

(2) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

The SC ruled this provision is constitutional. In response to petitioners’ claim that this provision “suffers from overbreadth in that, while it seeks to discourage data interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms”, the SC held that the provision “does not encroach on these freedoms at all. It simply punishes what essentially is a form of vandalism, the act of willfully destroying without right the things that belong to others, in this case their computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other people’s computer systems and private documents.”

On Cyber-squatting

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

x x x

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

The SC ruled this provision is constitutional. Petitioners claimed that this provision “violates the equal protection clause in that, not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the name of another in satire, parody, or any other literary device.” The SC held that “it is the evil purpose for which [the alleged violator] uses the name that the law condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same.” [underscoring supplied]

On Computer-related Identity Theft

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

x x x

(b) Computer-related Offenses:

x x x

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

The SC ruled this provision is constitutional. Petitioners claimed that this provision “violates the constitutional rights to due process and to privacy and correspondence, and transgresses the freedom of the press.”

In negating the right to privacy issue, the SC held that the provision “punishes those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to privacy and correspondence as well as the right to due process of law.”

In negating the overbreadth issue, the SC held that “specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental right to acquire another’s personal data.”

In countering the freedom of the press issue that “journalists would be hindered from accessing the unrestricted user account of a person in the news to secure information about him that could be published,” the SC held that “this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be regarded as a form of theft.” Further, the SC said that since intent to gain is an essential element to fall within the provision’s scope, “the press, whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain which is required by this Section.” [underscoring supplied]

On Cybersex

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

x x x

(1) Cybersex. – The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

The SC ruled this provision is constitutional. In claiming that this provision violates the freedom of expression, petitioners alleged that “private communications of sexual character between husband and wife or consenting adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when done “for favor” in cyberspace.”

The SC went back to the deliberations in Congress and found that the “deliberations show a lack of intent to penalize a “private showing x x x between and among two private persons x x x although that may be a form of obscenity to some.” The understanding of those who drew up the cybercrime law is that the element of “engaging in a business” is necessary to constitute the illegal cybersex. The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration.” [underscoring supplied]

Okay, private non-profit exhibition of sexual organs or sexual activity may not be covered (no pun intended). But what about public, for profit, but educational/artistic/informative (as in for medical purposes) - even if lascivious - exhibition of sexual organs or sexual activity? Since a museum would normally charge entrance fees, and it is not inconceivable that a museum will have an art exhibition showing sexual organs or sexual activity, the museum may unjustly be punished under this provision once it uses ICT in relation to its exhibition.

On Child Pornography

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

x x x

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

The SC ruled this provision is constitutional. Petitioners feared “that a person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting a cybercrime.”

The SC held that this provision “merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace” and that “no one can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such higher penalty. The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded in the cyberspace is incalculable.”

Perhaps petitioners should have also challenged the constitutionality of the relevant provisions of the ACPA so that the SC could have tackled that issue as well.

On Unsolicited Commercial Communications

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

x x x

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

The SC found this provision unconstitutional. The SC that “[t]o prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression.”

On Libel

In the Revised Penal Code (RPC)

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

In the Cybercrime Prevention Act of 2012

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

x x x

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

The SC upheld the constitutionality of the libel provisions in the RPC and the Cybercrime Prevention Act even as petitioners claimed that said provisions violate the right to freedom of expression because the provisions require “presumed malice” while the latest jurisprudence already replaces it with the higher standard of “actual malice” as a basis for conviction.”

The SC held that, although Art. 356 of the RPC states that “[e]very defamatory imputation is presumed to be malicious”, where the offended party is a public official or a public figure, the accused can claim absence of actual malice even when his/her statement turns out to be false. But “where the offended party is a private individual, the prosecution need not prove the presence of malice [as it is presumed]. xxx For his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact true.”

When petitioners claimed that the provisions violated the Philippines’ obligations under the International Covenant of Civil and Political Rights (ICCPR), citing the UNHRC case “Adonis v. Republic of the Philippines” which held that “penal defamation laws should include the defense of truth”, the SC qualified this ruling by stating that the UNCHR did not hold “that the truth of the defamatory statement should constitute an all-encompassing defense.” The SC further cites Art. 361 of the RPC which “recognizes truth as a defense but under the condition that the accused has been prompted in making the statement by good motives and for justifiable ends.”

When petitioners claimed that the UNCHR, in the Adonis case, enjoined the Philippines to decriminalize libel, the SC noted that the UNCHR merely “suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.” It can be argued that it is in criminalizing libel that ensures freedom of expression is stifled – for who would dare speak freely if imprisonment is the consequence? But, that is not how the SC sees it.

Aiding and Abetting Libel under the Cybercrime Prevention Act

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

The SC made distinctions here and declared “Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography” is unconstitutional for its “chilling effect on the freedom of expression”.

The SC acknowledged that the “complex web of interaction on social media websites” - like pressing “Like”, “Comment” or “Share” in relation to, or re-tweeting, an alleged libelous statement or a statement relating to child pornography – creates many actors (potentially millions) who may be held liable under Sec. 5 thus giving “law enforcers such latitude that they could arbitrarily or selectively enforce the law” and giving the law a “broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages.“

However, Section 5 in relation to “Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex is constitutional. The SC determined that “none of these offenses borders on the exercise of the freedom of expression” and the “crime of willfully attempting to commit any of these offenses is for the same reason not objectionable.”

On the Penalty for Committing a Crime through the use of ICT

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

In upholding this provision, he SC held that “Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance x x x In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.”

The increase in penalty by one full degree, with no opportunity to mitigate the same, seems unjustifiably harsh, especially when it comes to libel where the threat of a higher penalty may deter free speech and which act, in a more enlightened world, would not be criminal in the first place.

Liability under Other Laws

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

This is about double jeopardy and the SC made distinctions on this provision’s application. In cases of online libel and online child pornography, the SC held that double jeopardy applies such that one can’t be separately prosecuted for the same online libel under the RPC and under the Cybercrime Prevention Act nor can one be separately prosecuted for the same online libel under the ACPA and the Cybercrime Prevention Act.

However, as regards all other cases, the SC held that it “would rather leave the determination of the correct application of Section 7 to actual cases”.

On the Penalties

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or the “Anti-Child Pornography Act of 2009:” Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

The SC found this provision constitutional and held that “[t]he matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. xxx Judges and magistrates can only interpret and apply them and have no authority to modify or revise their range as determined by the legislative department. The courts should not encroach on this prerogative of the lawmaking body.”

On Real-time Collection of Data

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

The SC found this provision unconstitutional for violating the right to privacy. The SC said that “[I]n assessing regulations affecting privacy rights, courts should balance the legitimate concerns of the State against constitutional guarantees.” To be upheld, a law requiring the disclosure of private matters must show that 1) “the requirement has a rational relation to the purpose of the law”, 2) “there is a compelling State interest behind the law”, and 3) “the provision itself is narrowly drawn”.

The SC held that the provision failed the “narrowly drawn” element. A crucial term in the challenged provision is in the opening sentence: “Law enforcement authorities, with due cause, shall be authorized …”. ‘Due cause’ was deemed vague in this instance as it justifies “a general gathering of data … akin to the use of a general search warrant that the Constitution prohibits.” Due Cause was also deemed “not descriptive of the purpose for which data collection will be used” and gave law enforcement agencies authority that is “too sweeping and without restraint”. The Court stated that laws that allow the use of technology to monitor individuals must be “written with specificity and definiteness as to ensure respect for the rights that the Constitution guarantees”.

The SC further noted that while the provision says “that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies.”

On Preservation of Computer Data

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

The SC found this provision constitutional. Petitioners claimed that “Section 13 constitutes an undue deprivation of the right to property. They liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic data that essentially belong to them.”

While not denying that “the contents of materials sent or received through the internet belong to their authors or recipients and are to be considered private communications”, and despite the petitioners’ claim that ICT users have the right to access and dispose “of traffic data that essentially belong to them”, the SC upheld this provision while only addressing ICT users’ right to access their data. The SC ruled that “the data that service providers preserve on orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of preserving data will not unduly hamper the normal transmission or use of the same.” No mention of ICT users’ right to dispose data that belong to them.

Disclosure of Computer Data

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.

The SC found this provision constitutional and ruled that “what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.”

On the Search, Seizure and Examination of Computer Data

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

The SC found this provision constitutional. While petitioners claim this provision “will supplant established search and seizure procedures, the SC ruled that the law “merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation, and use of computer system or data that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken. Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.”

On the Destruction of Computer Data

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

The SC found this provision constitutional. In denying petitioners’ claim that “such destruction of computer data subject of previous preservation or examination violates the user’s right against deprivation of property without due process of law,” the SC held that “it is unclear that the user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved them in his computer when he generated the data or received it. He could also request the service provider for a copy before it is deleted.”

On Restricting or Blocking Access to Computer Data

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

The SC found this provision unconstitutional “for being violative of the constitutional guarantees to freedom of expression and against unreasonable searches and seizures.”

The SC held that “it is indisputable that computer data, produced or created by their writers or authors may constitute personal property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their personal computers or in the service provider’s systems.”

Because the government, pursuant to this provision, will “seize[s] and place[s] the computer data under its control and disposition without a warrant,” the provision violates “Section 2, Article III of the 1987 Constitution which provides “the right to be secure in one’s papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable” and that “no search warrant shall issue except upon probable cause to be determined personally by the judge.”

Plus, the SC held that “content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace” if the restriction is 1) done without judicial warrant, 2) fails the dangerous tendency doctrine, 3) the balancing of interest test, or 4) the clear and present danger rule. Section 19’s requirement that the “computer data is prima facie found to be in violation of the provisions of this Act” is insufficient justification for the restriction

On Noncompliance with the Enforcement and Implementation of the Act

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

The SC found this provision constitutional despite petitioners’ claim that it is a bill of attainder[1]. The SC reasoned that “since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829, Section 20 necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.” So violation of Section 20, in relation to P.D. No. 1829, must still be done by “any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases” in the manner provided under P.D. 1829.

On the Powers of the Cybercrime Investigation and Coordinating Center

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(c) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

The SC found this provision constitutional. Petitioners claimed that the authority given the CICC to formulate a “national cybersecurity plan without any sufficient standards or parameters for it to follow” was an undue delegation of legislative power by the Congress to the CICC. The SC cited the 2 tests to determine undue delegation of legislative power: 1) the completeness test, i.e, “the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it”; and 2) the sufficient standard test which “mandates adequate guidelines or limitations in the law to determine the boundaries of the delegate’s authority and prevent the delegation from running riot.”

The SC found the Act is complete and gave “sufficient standards for the CICC to follow when it provided a definition of cybersecurity.” Under Sec. 3 (k), cybersecurity “refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect cyber environment and organization and user’s assets.” THE SC found that this “definition serves as the parameters within which CICC should work in formulating the cybersecurity plan.”

The SC also found that since “the formulation of the cybersecurity plan is consistent with the policy of the law” stated in Sec. 2 of the Act which is to “prevent and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation”, and because “the policy is clearly adopted in the interest of law and order, which has been considered as sufficient standard”, then the 2 provisions are valid.

Because of the multifaceted connections/transactions/relations in the realm of ITC and the nature of ITC to evolve fast, the Cybercrime Prevention Act of 2012 will likely be subject of numerous challenges filed with the courts, if not proposed amendments filed with the legislature, to jibe with the times. Changes may come sooner than we think as appeals to the decision have already been filed.

[1] bill of attainder = a legislative act that imposes punishment without a trial. Merriam-Webster. http://www.merriam-webster.com/dictionary/bill%20of%20attainder

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TIME’S UP! (Time to change from Philippine Time to Philippine Standard Time)

2014-01-09T21:16:00.000+08:00

By Siesta-friendly

It’s time we equate “Philippine Time” with Philippine Standard Time. It is best we all do now that all national and local government offices are required to “display the Philippine Standard Time (PST) on their official time devices, including bundy clocks, in accordance with the official time being provided by the Philippine Atmospheric, Geophysical and Astronomical Services Administration (PAGASA)” pursuant to Sec. 2 of R.A. 10535 (or “The Philippine Standard Time (PST) Act of 2013”).

And, yes, there are consequences - although only on a little segment of the private sector. Under Sec. 7 of RA 10535, “[o]wners of private television and radio stations who shall fail to calibrate and synchronize their time devices with the PST during their broadcast shall, upon hearing and due proceedings, be penalized with a fine of not less than Thirty thousand pesos (P30,000.00) but not more than Fifty thousand pesos (P50,000.00) and in case of second offense, revocation and cancellation of their franchises to operate.” It does seem a bit extreme for missing a second or a minute or two.

Why doesn’t the law penalize government offices for failing “to calibrate and synchronize their time devices with the PST”? And why not also punish all private offices or institutions for the same failure? Who knows?

Section 3 of Implementing Rules and Regulations, however, provide that “[a]ny government employee or office, who is principally responsible for the implementation of the law, shall fail to calibrate and synchronize the devises with the PST shall be administratively liable without prejudice to any civil or criminal liability that may be appropriately imposed.” Who are “principally responsible for the implementation of the law”? Who knows?

Go to http://kidlat.pagasa.dost.gov.ph/ourtime.shtml and follow the instructions -

Step 1: Click or select "Date and Time" in system icon tray located in the lower right corner of the taskbar.

Step 2: "Date and Time" window will pop up. Then Click or select "change date and time settings..."

Step 3: "Date and Time Setting" window will show. Then select the tab "Internet Time".

Step 4: After selecting the "Internet Time" tab, click or select "Change settings..." button and "Internet Time Settings" window will pop up.

Step 5: In "Internet Time Settings", type "ntp.pagasa.dost.gov.ph" in server textbox highlighted in red, then press "Update now".

Step 6: For the last part, wait for your computer to sync to the server. A message will inform you if update is successful.

NOTE: If you notice that after synching, your computer clock didn’t match the PhST, just keep on refreshing until it finally synched with PhST. It is normal at the beginning, because it will take time to load a page. Refresh it at least three times (3x) until it displayed the correct PhST.

Its a new year and its time we have a shed an old bad trait. Make Philippine Standard Time the new Philippine time.

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DISCOUNTING INTENTIONS: DTI’s Diskwento Caravan

2013-12-12T12:55:00.000+08:00

By Siesta-friendly

The Diskwento Caravan, according to DTI’s website “[s]tarted in 2008, … [as] a flagship project of DTI that aims to provide non-wage benefits for wage earners and employees to ease the consumers’ burden of rising prices of basic necessities and prime commodities.”

As early as November 14, 2013, or 6 days after Yolanda left thousands dead and injured and thousands more homeless, jobless, hungry, in desperate need of medical help, in search of loved ones, the government began the roll out of its Diskwento Caravans in Ormoc, Leyte. Thus, within 6 days from the worst typhoon the country and the biggest disaster area the country had ever seen, the government already saw consumers with demands and not victims in need.

Partnering with big manufacturers and distributers instead of serving calamity victims

Philstar reports that the goods sold during the Diskwento Caravan are “bottled water, canned goods, coffee, milk, noodles, rice, biscuits and bread. The participating companies are Gardenia Bakeries Philippines Inc., Nutri-Asia, Nestle Philippines, Century Canning Corp. and San Miguel Pure Foods Co. Inc. For the succeeding caravans, the DTI said other items will be added to the product offerings such as detergent, flashlights, batteries, candles, rice, eggs and dressed chicken.”

In the past, the roll out of Diskwento Caravans has been described as a “fair”, i.e., a venue to sell and promote products. In connection with one such event in July 2013, the DTI stated that “[m]anufacturer participants are no longer charged of overhead but given free venue, electricity, security and media promotion, among others”.

All these make us wonder who the Diskwento Caravan primarily serves – the manufacturer or the consumer? And why proceed with this fair when Typhoon victims, in their desperation and need to survive, have resorted to looting and eating spoiled rice?

In defense of Diskwento Caravans, DTI Secretary Gregory L. Domingo, on November 26, 2013, said that “most [manufacturers and distributors] do not make money on their Diskwento Caravan Activities”.

Since not only are manufacturers and distributors benefitting from the free “media promotion” but some are also profiting from the sale of their goods to the victims, it has become less believable that the Diskwento Caravans are primarily to help calamity victims.

Selling necessities to calamity victims

In the same November 26, 2013 statement, Secretary Domingo continues: “In calamity areas, the value of Diskwento Caravans is in providing the availability of non-relief item at a discounted price. In the last 10 days in Samar/Leyte, we have provided many truckloads of bread, canned milk, assorted other canned goods, other types of beverage, sanitary napkins/panty liners and many other products that are otherwise unavailable in the area. DTI’s 2nd Diskwento Caravan in Tacloban tomorrow will also include construction materials such as GI sheets, nails, etc. and products such as batteries, flashlights and other necessities.”

The above statement implies that “bread, canned milk, assorted other canned goods, other types of beverage, sanitary napkins/panty liners and many other products that are otherwise unavailable in the area” are non-relief items. Are rice, water, sardines and corned beef the only relief goods? So when local and foreign donations include “bread, canned milk, assorted other canned goods, other types of beverage, sanitary napkins/panty liners”, are these items taken out because they are not “relief goods”?

Secretary Domingo also mentioned selling “other necessities” to typhoon victims. What “necessities” are not considered “relief goods”? Aren’t those terms synonymous with each other?

Neglecting local livelihood while promoting big manufacturers and distributers

Secretary Domingo then attempts to elicit empathy by stating: “DTI has a very meager budget and gets zero donations. The Diskwento Caravans especially in areas in Leyte/Samar have been conducted at great sacrifice by our employees around the region and by the employees of our partner companies as they effectively take 30 hour shifts from the time they leave Cebu port on a RORO to Leyte/Samar to the time they get back to Cebu after holding the Diskwento Caravan without the benefit of a hotel room or assured toilet facilities.”

The DTI’s activities on behalf of manufacturers and distributors are not the selfless activities they are trying to make it seem. The more the goods sell, the more media promotion and goodwill these manufacturers and distributors will earn and the more favorable the Department of Trade and Industry will be in the eyes of these manufacturers and distributors.

In connection with this defense of Diskwento Caravans, Presidential Communication Operations Office Secretary Herminio Coloma, on November 27, 2013, said that “the discount caravan aims to restart and energize commercial activities in calamity areas where public markets and retail stores were destroyed.”

The only way we can think that Diskwento Caravans can help calamity areas “restart and energize commercial activities” is if the Diskwento Caravan goods are sold to stores which will in turn sell them to consumers. How then does this help victims who, while still desperate for relief, now have to pay for goods with the local store’s mark-up?

If the DTI really wanted to “restart and energize commercial activities in calamity areas” then they should have given start-up funds to support local livelihood. The predominant economic activities in the hardest hit areas, Leyte and Samar, are fishing and agriculture. It doesn’t take a lot of money to “restart and energize” these commercial activities. And, how does selling “bread, canned milk, assorted other canned goods, other types of beverage, sanitary napkins/panty liners and many other products that are otherwise unavailable in the area” to fisherman and farmers “restart and energize” the latter’s commercial activities?

Since no one person seems to be in charge of relief operations, it would be difficult to stop the Diskwento Caravans. Each government arm seems to be doing only what it knows best which may not necessarily be the best for the calamity victims. But good intentions are not enough at a time like this. So, let us just do as much we can to reach out to as many victims as we can. We all know by now we can do so much better than our government.

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