Saturday, December 22, 2007

Carnap me scheme

One of the common modus operandi in insurance fraud is the "carnap-me" scheme.
This is a situation where a car owner insures his vehicle agasint theft or carnapping, then later, have the vehicle carnapped.
The vehicle owner will then report to the insurance company and claim for the insurance proceeds.
In this fradulent scheme, the vehicle owner earns money because of the carnapping.
The "carnapped" vehicle will either be re-sold, after making changes, or it will be chopped to pieces and sold by piece.
Either way the vehilce owner gets income from it.
Aside from this, the vehicle owner gets income from the insurance proceeds due to his fraudulent claim.
For this reason, insurance companies have expert and experienced evaluators to investigate on thier own, whether an insurance claim for theft is a carnap-me scheme.
If the insurance company evaluators discover badges of fraud, or indicators that a claim is a carnap-me scheme, the claim will be denied.
Goin to basics, Insurance is a concept that seeks to indemnify a person for loss arising from an unknown peril.
In carnap-me situations, the insurance is not payable or indemnifiable because the loss did not arise from an unknown peril, but from a previously known, well-planned peril.
As it has been said, insurance is a means to indemniify, not to enrich one person at the expense of another.

Tuesday, December 18, 2007

Dan

The internet gave me the bad news of the passing of Dan Fogelberg.
I am a huge fan of Dan Fogelberg, grew up listening, playing his music.
Dan Fogelberg is the voice behind monstrous ballad hits such as "Longer", "Leader of the band".
In leader of the band, he writes of his father: "His gentle means of sculpting souls took me years to understand."
To me, Dan wanted to describe his father as a man of wisdom, a man who knew better.
See how musicians express?
My other favorite is his version of the Cascades original "Rhythm of the Rain".
Equally memorable is "Believe In Me."
I learned of Dan's passing from the CNN website.
He battled prostate cancer for three years.
Cancer was discovered in the advanced stage in 2004.
He was 58.
I checked his website, and in the "News" section I read the sad announcement.
I also check the DAn Fogelberg fan-based website called living legacy which devotes its space to receive words of sympathies.
There is also a personal note from Dan Fogelberg himself, about his experience.
And he gave a "sermon" on how to prevent prostate cancer.
By the way I love the lyrics of "Leader of the Band"
It was a song Dan made for his father who was a band leader.
One thing adorable about singers/songwriters is that their unique impact to the world is permanently etched in peoples' memories through their music.
The singer comes and goes. They grow old. But their music stays.
In that sense, music defies mortality.
Goodbye Dan.
Thanks for the music.

Monday, December 17, 2007

Pre trial rule mis-impression

I had the erroneous mis-impression about a rule in pre-trial proceedings.
It is Section 3 of Rule 18 of the rules on civil procedure.
The existing rule is that the notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him.
The sentence in bold is what kept me ignorant.
For such a long time---until just recently---I had the mis-impression that the notice of pre-trial is to be served separately to the party and to the counsel.
I was living in the dark ages.
The new rule is that the notice of pre-trial is served only on the counsel, and not any more on the party.
The counsel now bears the responsibility of informing his client of the pre-trial.
The rule was changed apparently to save on bond paper.
But more important, the rule now adheres to the principle that notice to counsel is notice to party.
I think the old rule was the source of a lot of 'palusot' by some parties, because at times, there are lapses that ensue on account of the requirement of notifying separately the party and the counsel.
Now it is simpler. Notify only the counsel.
However, if the notice of pre-trial is sent to the party, and not to counsel, this kind of service is insufficient and the party and counsel cannot be penalized if the counsel is not able to attend the pre-trial.
And even if there was a previous agreement among counsels of the schedule of the pre-trial, the notice of pre-trial cannot be dispensed with. It still must be served, according to a Supreme Court decision.
So I ought to remember the new (this is actually not new) rule.
Notice of pre-trial is served only to counsel, no longer to both counsel and party.

Thursday, December 13, 2007

Erap protests "most corrupt" hierarchy

Even a six year absence due to "resthouse" arrest has not made a dent on former president Joseph Esrtada's rare talent to amuse.
The former president protested why he is third in the list of "most corrupt" Philippine presidents.
In a survey done by Pulse Asia, the following were the most corrupt Presidents in the order of severity: (1) Gloria Arroyo (2) Ferdinand Marcos (3) Erap Estrada (4) Fidel V. Ramos (5) Corazon Aquino.
Erap says he should not be third most corrupt, but fourth most corrupt.
He says Fidel Ramos should be in the third spot because Ramos administration was marred by graver corrupt deals.
If leaders were labeled as very very corrupt, very corrupt, and just corrupt, it seems Erap is protesting and saying that instead of being labelled as "very corrupt", he should be labled as "corrupt" only.
But corrupt just the same.
Si Erap talaga....
I think he is the only one who can say or do things like these, and get away with it.

Wednesday, December 12, 2007

'Most corrupt' tag: Fact or perception?

From time to time, we have to review what the meaning of news is.
This comes to light with the recent "news" that a survey among Filipinos showed Gloria Arroyo is the most corrupt President in recent history.
Is this news?
It hogged the headlines. It must be.
Anyway, Gloria Arroyo has responded to this stingy accusation by saying this is merely perception and not based on facts.
Thus, the government says it would be difficult, if not futile to respond to baseless perceptions.
But is the opinion that Mrs. Arroyo is the "most, corrupt president" not based on facts?
When the President called a Comelec Commissioner by phone-- many believe she really called Virgilio "Garci" Garciliano--- at the height of the presidential elections, and was analyzed to have said "yung dagdag, yung dagdag", is this not a fact?
As a matter of fact, the President herself went on nationwide television to say "I'm sorry."
To me, that is a fact.
Why say sorry if the politically debilitating phone-chat was not fact?
When some honorable congressmen admit receiving P500,000 cash in Malcanang, the home of the most senior official, amidst moves in the house to impeach the President, is this not a fact?
When Ed Panlilio, governor of the president's home-province, and the governor of a neighboring province admit have been given P500,000 right in Malcanang, is this not a fact?
Until now there is yet no explanation from the President or her allies convincing enough to dissuade Filipinos from thinking those were bribes.
Filipinos may not be that sophisticated, but definitely they are not dumb, much less stupid.
If these instances are not facts, then I don't know what a fact is.
In fairness to the scientifically selected samples in the survey, and with due respect to the President, I think they based their opinions on established facts, and not perceptions.

Sunday, December 09, 2007

Mr. policeman what are you doing

This policeman I caught in my cellphone camera doesn't look like he's trying to raid a pirated DVD outlet.
Indeed, he is trying to choose which DVD he is going to take that day without paying.
Those manning these video outlets complained that the policeman would just get any DVD he wants without paying for it.
According to one of the sellers, even the mayor's boys would even pay. Some don't even ask for change.
Indeed, I heard this policman say "Eto, hiramin ko" (I'll borrow this)
The seller said the policeman ain't returning it.
Abusado.

Saturday, December 08, 2007

Policy Additions Endorsements

I handle a several insurance cases where the issue is the validity of endorsements, riders, attachments, added warranties to insurance policies.
The rule is that anything added, attached to the insurance policy, after its issuance, must be countersigned by the insured. Otherwise, any term, condition set forth in these additions, attachments, riders, warranties would not be binding.
The logic is simple.
Without any countersignature by the insured, there would be no evidence that the insured ever agreed to the additional terms and conditions in the riders, attachments, endorsements after the issuance of the policies.
That is fine.
But what if the terms and conditions added are favorable to the insured, but there is no countersignature by the insured.
Can the insured invoke the unsigned terms and condition in the rider, attachment, endorsement?
Can the insurer claim that the endorsement, rider, attachment, added warranties issued after the policy does not have eny effect because the insured did not counter-sign?
Remember in contracts, it takes two to tango.
A contract is a meeting of the minds between two persons.
If there is no evidence of any meeting of minds, i.e. no counter signature, are the endorsmements, riders, attachments, additional warranties binding?
This is the case I am handling right now.
My position is that if the additions to the policies bear no counter-signatures by the insured, they are non-binding.
Thus, if the insurer cannot invoke the terms and conditions contained in additions to policies that bear no counter-signatures of the insured, then too, the insured cannot invoke additions to policies to which he did not counter-sign.
My position is that what is sauce for the goose, should also be the sauce for the gander.
No person should be denied the equal protection of the laws.
Do you agree?

Friday, December 07, 2007

Invitation

Yesterday, I received from the mails an invitation from the editor of the weekly student publication of Negros Oriental State University (NORSU):

Good day, Sir!

The NORSUnian, the official weekly student publication of Negros Oriental State University (NORSU) system, will conduct Lakra-Tinta II, a seminar-workshop and fellowship among campus journalists and advisers, on December 7-8, 2007. The theme for this year is “Enhancing Campus Journalism Through Pen and Commitment.”

In case you're in Dumaguete, we would like to invite you as one of our speakers on Friday, December 7. We would love to hear you talk about Media Laws, Roles and Ethics in an hour session.

An estimated of 40+ campus writers and advisers are expected to attend the said seminar, which will be held at the GSP Building. For questions, please contact me via landline no. 225-9400 local 167 or cell number 09169621420.

We hope this invitation will merit your most favorable response. Thank you.


Sincerely yours,


Merlinda Baliola
Editor in Chief, The NORSUnian


I told Merli I really would have wanted to come, had it not been for pressing engagements which I could no longer cancel.

Wednesday, December 05, 2007

Kool Kristmas

My brother Emem has sent me a link to an online FM radio station in Alaska which is spreading the spirit of Christmas on the airwaves by playing all Christmas songs day-in and day-out on the radio.
So if you want to pipe-in KOOL popular Christmas songs through the internet, tune in to Kool 97.3 http://www.kool973.com/
Happy listening.

Monday, December 03, 2007

Christmas in the courts

The courst in Makati were very recently the site of chaos and confusion with the un-anticipated walk-out of Senator Antonio Trillanes and General Danilo Lim.
But just a few days after, the courts of Makati was transformed in an instant.
The Makati courts' preparations for Christmas went to high gear.
The lobbies of the 10th, 11th, 33rd, 14th, 15th floors have been elaborately adorned with Christmas decors.
The lobbies in the courts are filled with different ornaments just to fill the minds of litigants with the spirit of Christmas.
Apparently the thrust is for litigants to imbibe the true spirit of Christmas which is to extend the hand of peace agasint their adversaries.
So if you go to the Makati courts, you cannot help but get struck by that sudden gush of light-heartedness, even if you are ready to chop into bits and pieces the testimony of your adversary.
Truth is, there is actually a competition among each floors of the building to find out which floor has the most meaningful decoration.

Friday, November 30, 2007

What's happening colonel?

I witnessed what transpired at the so-called walk-out by Senator Antonio Trillanes from the proceedings at the Makati Regional Trial Court Branch 148 last Thursday.
Pardon me for saying this, but from my vantage point, the military guards were at a loss as to what was happening.
I am pretty sure, from what I was witnesseing, the soldier-guards were blind as to the plans of Trillanes, which was to hold themselves out at the Manila Penninsula.
Teh soldier-guards looked stunned, and did not even know what to do.
They were loitering in the hallway, as Trillanes, General Danny Lim were in the elevator, about to go to the ground floor.
Had the soldiers known that the plan was to proceeding to the Penninsula, their reaction would have been different.
I was randomly taking video footages using my cellphone.
I happened to focus on a colonel who was the highest ranking military officer on that floor.
I am not sure, based on the video footage, if it would convince one to conclude that the soldiers knew what was going on, or that they were under control.
I really wanted to approach the military officer and ask: "What is happening, colonel?"
http://www.youtube.com/watch?v=rxwSZf0rmYE

Thursday, November 29, 2007

The drama at the Makati RTC 148

I happened to be loitering at the 14th floor of the Makati City Hall Thursday morning (Nov 29) at around 11 a.m. and just as I was walking along the hallway there was a commotion.
The 14th floor hosts several court salas including branch 148 of the Regional Trial Court presided by my former law teacher Judge Oscar Pimentel.
One of the cases pending there is the case against Senator Antonio Trillanes which happened to have a scheduled hearing that day.
So many men in military clothes packed the hall way.
The first thing I remember was a lady running on the hallway towards me saying "Nagkakagulo na doon."
Then I heard shouting.
Instinctively, I drew my cell phone and instantly made a video recording.
Little did I, and perhaps every one on that floor realize that what was happening was the beginning of what led to the armed stand-off at the Makati Peninsula.
While I was taking video footage, I heard somebody said a gun was drawn.
I must admit I became afraid at that point.
I no longer pursued my path, which was to go right at the center of action which was in the area of the elevators.
I was afraid that the trigger of the drawn gun might by pulled, because I sensed nobody was in full control.
I heard persons saying "May baril, may baril!"
Other soldiers saying "Hindi tayo magkalaban dito!"
As a lawyer, a drawn gun in the court premises is red alert.
There is supposed to be no guns in the court premises in the first place.
Guns are supposed to be deposited at the reception area on the ground floor.
I knew immeidately that the fact there was a gun at the 14th floor showed there was breach of security.
I even heard shouting inside the sala of Judge Oscar Pimentel.
At that point nobody knew what was going on.
One defense cousel said General Danny Lim was kidnapped.
General Danny Lim was testifying as witness for the defense that day.
When there was a brief recess in the proceedings, armed uniformed men supposedly MP's (military police) took away General Lim.
Then I saw former vice Preisident Teofisto Guingona, and former UP President Nemenzo, emerge from teh court room, and Bishop Labayan on te hallway who had wanted to enter the courtroom.
Let me show my brief own video clip of what happened at the 14th floor.
It shows scores of uniformed men, supposed to be guarding Trillanes and company, bewildered
not knowing what was going on.
http://www.youtube.com/watch?v=pU-RuTuPNp8

Re-election bar

The only elective official in the Philippines who is barred from seeking even a single re-election (for the same position) is the President.
The 1987 constitution states that "The President shall not be eligible for any re-election".
Those who are frightened at the prospect of an Erap-comeback will file this petition before the Supreme Court (just like what they did to Fernando Poe Jr.).
They will expectedly invoke the deliberations of the 1986 constitutional commission, that discussed this anti-Marcos paranoia of a provision.
Inherently, I don't like these and other "paranoid provisions" of the constitution because it restricts my God-given right---or gift--- of choice.
Perhaps, the members of the 1986 constitutional commission (concom) were of the thinking that in order to prevent the repeat of another overstaying President like Marcos, it should be best to put a provision barring re-election.
At first the 1986 constitutional comissioners decided a bar to "immediate" re-election.
In other words, initially they barred re-election of the President, but only in the very next presidential election immediately after his six-year term.
This meant that while the President will be barred from seeking re-election in the next Presidential election, he can still run in future Presidential elections.
But later on, this was put to an amendment by commissioner Padilla who proposed that the bar (on re-election) should be perpetual.
Then the concom placed the word "any" (before "re-election") courtesy of commssioner Davide, to emphasize that what the President is being barred is from running again for the same position.
The obvious reason for the bar, as can be seen in the concom deliberations, is that the President will only use the Presidency to somehow perpetuate himself in power.
So better to bar him from seeking re-election.
The seemingly paranoid commissioners said there should be a bar, forever.
The reasoning by commissioner Padilla (for a forever ban) is the Mexican experience.
In Mexico, he explained, the President there once belonged to a highly dominant, strong political party.
In the next Presidential election, while the Mexican President was barred from seeking "immediate" re-election, the President let his "tuta" (lapdog) run for President.
After the term of the lapdog president was over, the original President came back to power.
So, to avoid this, commissioner Padilla proposed that the ban against re-election should be lifetime.
Commissioner Rodrigo however, did not find commissioner Padilla's apprehensions tenable, arguing that the Philippine constitution, unlike Mexico, adopted a multi-party system.
This being so, the likelihood of a dominant political party having a stranglehold in presidential politics is remote.
When put to a vote, commissioner Padilla's proposal won.
But of course, when the matter of Presidential re-election ban was deliberated by the constitutional commission, they did not forsee the Erap experience.
Remember, Erap was unceremoniously removed from the Presidency only after two years in office.
So the reasoning of the constitutional commission for the lifetime re-election ban, i.e. that the President would only use his first term to prepare for the next election, or consolidate his resources, or to perpetuate himself in power, did not apply to Erap.
For how could Erap possibly prepare for the next election when he was already ousted at the early years of his Presidency, and he had no longer any control of the government resources?
As a matter of fact, he was imprisoned.
It can be argued therefore, and it is my humble submission, that the ban against Presidential re-election only applies to Presidents who were able to serve their FULL TERM of six years, or at least those who have served much of the six year term.
That is the only time that the President can adequately and influentially prepare for the next Preisdential election.
What are my bases for such proposition?
The deliberations of the concom iteself, and also an analysis of the commentaries of some authorities.
Erap can argue that in his case, the reason for the ban (on re-election) does not apply to his experience.
So, is Erap barred from taking a crack at the Presidency again?
I say not necessarily.
Don't you think so?

Tuesday, November 27, 2007

Erap for President (again)?

So-called presidentiables have begun surfacing this early obviously training their guns at the 2010 presidential derby.
The early birds who have waged a virtual launching of their presidential bids are Mar Roxas, who has been elected as President of one of the oldest political parties, the Liberal Party.
The other who staged a “soft launching” was Manuel Villar, Senator President and head of the Nacionalista Party.
Villar waged a media blitz by posting 30-second spots on radio, the message of which I could not even understand.
I think I heard him extolling the Nacionalista party in his radio ads.
There is a saying that the early catches the early worm.
These presidential wannabes have apparently taken this adage to heart.
However, I believe that there is a wild card in the race for the 2010 presidency
I am referring to former president Joseph Ejercito Estrada, who just might decide to make a comeback and take a crack at the presidency again.
If he does this, I believe, Erap will give both Roxas, and Villar and the rest of the ambitious politicos a run for their money.
Erap remains a credible threat to anyone aiming for the presidency.
Erap’s charisma is as strong as ever.
And Erap’s has this burning passion to prove to all and sundry that even if he was convicted by the courts, the Filipino people have absolved him.
And there is no better way to validate this than votes cast during the presidential elections.
Remember, Erap posted the highest number of votes cast ever for a presidential candidate during the 1998 elections.
And to think he was not an administration party candidate, but an opposition standard bearer, against Jose De Venecia.
For me there is no question, if Erap decides to take a crack at the presidency, he would be the man to beat.
But this is speculative at this point.
There are stumbling blocks ahead in Erap’s the quest for the presidency the second time around.
First, Erap is the beneficiary of a presidential act of grace called pardon.
This pardon can be revoked by the president.
While the president has restored Erap’s civil and political rights, the President can take this back.
Second, of course is the constitutional question as to whether or not Erap, who had been elected, and succeeded to the presidency once, and served briefly as such, is qualified for election as President in 2010.
I think there are sufficient reasons to say that constitutionally, Erap is still qualified for election as President in 2010.
This should raise a good and interesting discussion.

Sunday, November 25, 2007

A wireless landline?

Techonology in the communicatons front continues to advance and evolve.
Now, there is the so-called wireless landline.
This appears to be a contradictory in terms.
A "landline" usually refers to that telephone in the house or in the office which is stationary, and cannot be brought outside.
That differentiates it from the cell phone because the cell phone is "mobile".
This means that the cellphone service is to affor conveinience to the user in the sense that even if he is outside, as long as there is a "signal" one can contact other phones (whether cell phone or landlines) wherever the caller is.
But now, the landline had become wireless and is now no different from that of the cell phone.
Bayan Tel wireless is the among the first to offer "wireless landline" phones.
In other words, you can call with a "landline" phone from anywhere, as long as there is a signal, just like a cell phone.
If you have a Bayan wireless landline, and you call another landline phone, whether residential or business, or another wireless landline phone, there are no charges.
It has made a significant impact to one's professional undertakings.
For one thing, if you have a wireless landline, anybody can use another landline phone and call you for free (unlike the cellphone which imposes call charges) wherever you are, as long as you are within the signal range.
Right now, Bayan wireless is usable all over Metro Manila and some say even as far as Tagaytay and Laguna.
I got stung by the wireless landline immediately, because I saw the immediate benefits and practicalities.
With a wireless landline, I am my own secretary.
My business card bears a wireless landline number. If you call me in that number, I am the one who will answer (free of charge to the caller who uses a another landline phone).
Just last Saturday, I was in meeting in a coffee shop.
Instantly, I converted the coffee shop into a virtual office because I had with me my laptop and a wireless landline phone.
There are no charges if you call from your wireless land line, and you call another landline.
It has other features like text-message capability, internet capability, long distance (national or international).
Of course if you call a cell phone, or send a text message, or call long distance, then there are charges.
You can acquire a wirless landline by making an initial purchase of P1,995 for the unit, and a monthly charge of P699.
Another advantage is that people are now getting a wireless landline, rather than applying with the regular landline from telecom companies which take so long a time before applicants get a line.
One day I went to Greenhills, the center of bargain sales on just about anything, I saw a lot of stalls having their own wireless landline units and making business out of it by charging P5 per call.
The only thing is that my wireless landline unit is as big as the regular landline unit. It is very bulky, and I look like a telephone line man going around with that unit.
However, there are wireless landline units as tiny as cell phones, but they have limited features (like no internet feature).
The wireless landline of course, has a long way to go because its coverage is still the Metro Manila area.
But once this goes nationwide, I think this will be furtehr revolutionize wireless communications.

Monday, November 19, 2007

Roland Decker checks in

An old friend back in the radio days in Dumaguete , Roland Decker sent me an e-mail.
Roland Decker a former disc jocky in Dumaguete City, now based on Arizona is a jolly, always-smiling-if-not-laughing, amiable fellow, I distinctly remember.
He had a radio show over DYEM-FM Dumaguete on Sundays.
Here is his email:

hoy, kamusta jay...I don’t know if you still remember me..I was working for your father's radio station many moons ago..jay it's me si "Decks"
or Roland Decker alias "Big D" (radio name)....I use to do the Hasarrams radio program every sunday with people calling in to reqest and dedicate songs..do remember now..I was the "tisoy" with "choy leroy" as my sidekick....I see your doing very successfully with a prominent occapation.
I actually ran into your blog by accident, I was just checking out manang happening sa dumaguete, then "walla" your website came up. so I thought
I can drop you a hello, and whazz uppp!
well jay it's been a longtime since I vacated my dj position at dyem-fm, when I left in 88-89 I came here (u.s.) to join the us airforce,
instead I sign up for the us marines...I put in 8 years with assignments ranging from recon, extraction (going in combat zone and pull out combat units
that needed) and search and rescue..I married my high school sweetheart, she's from valencia, mga los banos, elopres, I have 2 great kids (jacob he's 16yr old and samantha my 12 yr old) currently nga reside ug traboho ko dinhi sa tucson arizona..I work as a paramedic for a number of years this can be a thankless job sometimes jay....pulling people out from burning buildings, houses, severe traffic accidents and with this job is breaking in the bad news to people about their love ones, family members, not making it (died) from an accident or some physical trauma (cardiac arrest, drowning). this
part of the job I hate..
then as a person I pray everyday when I'm going to work or even at work that these emergency units at the end of an 18 or 24 hour shift that we all go home to our family safe and well. after the 9-11 disaster it can be an erier feeling sometimes when a call comes thru..whether it's fire or accident..listen jay I know your probably busy but if you can drop me a line or two say hello to choy gallyarde, mario opena, also your dad (ely) take care my young friend and good luck in all your endeavor.

Saturday, November 17, 2007

Law school reunion

Time has flown so fast.
We realized it's been ten years since graduation from law school.
So some classmates thought of gathering those who are based in Manila for a dinner at Greenbelt last Friday.
It was a reunion of members of Section B of class 1997.
It was a way not only to touch base with former classmates, but to update the whereabouts of others, many of whom have crossed borders and settled elsewhere.
One, according to Bong Montesa has relocated in N. America, where is he now both happy and gay.
One update that struck me was that those who had been married during our student days, are already single. That is just after ten years.
So the average span of married life, is about ten years after law school?
At least that was the outcome, based on expereience of our classmates.
Who were there?
There was Anna Bautista, Roselle Tenefrancia, dubbed as the Swing Out Spinsters.
There was Jiggs Paraiso, who expressed some exasperateration after ten gruelling years of litigation.
Bong Montesa, the perrenial joker, after a stint with the Department of Education, is setting his eye in politics.
Jomar Castillo, is into labor law.
Boyet Del Prado has just gotten a presidenital appointed to the Inter Country Adoption Board.
Voltz Enriquez is busy tightening Quezon City's grip over the ownership Boracay Mansion.
Marlo Magdoza, has just arrived from a study leave in London, and has begun warming her bench as presiding judge of MeTC Manila.
Jason Natividad said is happy with Mimi Factoran's Dad.
It's a two member firm.
Bong suggested in jest that Jason petition to change his name from Natividad to "Associates" so that they can re-name their law firm to "Fatoran and Associates."
Edward Maceda is councilor of Manila and still has to confirm whether to upgrade the airconditioning of Marlo's sala.
Andrew Isip is into banking law and litigation. We constantly see each other in the sala of that pretty RTC judge.
As for Mimi Factoran, I don't exactly know no where is connected, after leaving both Ayala Land and her husband.
As for Diday Moya, she was late as usual.




















































Tuesday, November 13, 2007

Henry Teves injured in House bombing

Henry Pryde A. Teves, representative of the third district of Negros Oriental was reported to be one of the congressmen injured by the strong blast that rocked the south wing ofthe House of Representatives at around 8:30 p.m. today.
He was brought to the St. Lukes Hospital for treatment of burns on his face and fractures on different parts of his body, media reports say.
The 34-year old Henry Teves, a neophyte congressman, is the grandson of former Rep. Herminio G. Teves.
His uncle Margarito Teves, is the Secretary of Finance, and also a former three-term congressman.
Henry succeeded his grandfather who had served three consecutive terms in the House.
Reports also disclosed that several members of the staff of Henry Teves were also injured.
It was reported that Henry and his staff were near the south wing waiting for their ride home at the time of the blast.
One staff member of Rep. Teves, Ma-an Abustanilla, was reported to be in critical condition and was fighting for her life, according to reports.

Explosion at the House

It is 9:15 p.m. and I have just received a report that the South Wing of the Batasang Pambansa is the site of a massive explosion .
Initial reports say at least three members of the House were injured as a result of the blast. There were others also injured.
Henry Pryde Teves, congressman of the third district of Negros Oriental is reported to be one of those who may have been injured in the blast, but this has yet to be confirmed.
There is yet no report whether the explosion was a result of a bomb, or any other source.
The Batasan Pambansa is the official venue of the lower house of Congress.
This is where the House of Representatives holds session
It also hosts the offices of more than two hundred members of the House.
The explosion comes at the heels of major controversies hounding members of the House.
The House justice committee is tackling the latest impeachment complaint against President Arroyo.
The committee, it is said, is poised to junk the impeachment complaint.
Earlier, many congressmen were embroiled in what was seen to be cash distribution in amounts of P500,000 each in Malacanang.
Some members of congress have confirmed having received such cash distribution.

Monday, November 12, 2007

Airborne

I have received a couple of Airborne tablets from friends from the U.S.
Airborne are those popular tablet "effervescent health formula" which is mainly desgned to ward off possible viral attacks like the common cold, and boost the immune system.
I don't know I could buy them in local drugstores here.
But friends and relatives who ask me what I would like to have from the U.S. I always ask for Airborne.
I was given Airborne recently by cousin Kathlyn and tita Kathy.
Actually, the Airborne I got from my aunt was not actually for me.
Tita Kathy brought it for her own use while in the Philippines, but she gave it out.
The other day, a friend came back from the U.S. for the vacation and brought Airborne.
The Airborne package states that it was invented by a school teacher, named Victoria Knight McDowell.
According to the box or package: Take Airborne to boost your immune system. A healthy immune system helps your body fight germs. Take before entering crowded environments, like airplanes, offices, schools.
For me, I take Airborne when I notice that I could probably catch colds.
Just before I "invite" colds to my body, I take Airborne.
Believe it or not, it has been a very effective deterrent for colds, in my case.
But Airborne won't be effective if you have the colds already.
Airborne comes in many flavors, but my favorites are lemon lime and zesty orange.
You just drop one tablet in a cup of either hot or cold water.
Allow about a minute or two for the tablet to dissolve, and just drink the water thereafter.
I do not take it everyday, just when I feel the common cold is hovering around me.
I am not endorsing this product to anyone.
Better get read some reading about it before taking it.

Saturday, November 10, 2007

Catholic Church policy on suicide

I don't undertstand this policy of the Roman Catholic church on suicide.
I read in the Philipine Daily Inquirer a story abouth a priest having a dilemma on whether or not to grant final church rites upon the body of a twelve-year old who committed suicide.
I think that with this kind policy, the Catholic Church is making a pre-judgment on a person or his or her soul.
This prerogative of making pre-judgments does not belong to the Church.
In our criminal laws, a person who attempts at suicide has no liability.
Of course if his suicide is successful there is absolutely no liability because the person who committed suicide is already dead.
Our criminal laws punish those persons who give assistance to suicide.
It is punishable under Article 253 of the revised penal code.
Any person who shall assist another to commit suicide is liable.
If such person lends his assistance to another to the extent of doing the killing himself, such person is liable.
Even if the suicide is not consummated the person giving the assistance is still liable.
But the Roman Catholic Church, with its policy of not giving appropriate rites upon the body of a person who committed suicide, is penalizing the surviving relatives for an unfortunate circumstance they were not responsible for.
I think the remains of the 12-year old who committed suicide must be accorded the proper final ceremonies.
That's the least the Roman Catholic Church can do to the child.

Tuesday, November 06, 2007

Perjury raps filed against Mayor Perdices

Dumaguete City Mayor Agustin R. Perdices has been charged with two counts of perjury with the Dumaguete City prosecutors office.
The criminal complaint against Mayor Perdices was filed by Mercedarius Dindo Patrimonio Generoso, a Filipino and former Dumaguete city councilor, who also writes a column in the Negros Chronicle, a weekly newspaper.
The criminal charges follows the civil suit for damages also filed by Generoso agasint Mayor Perdices, for violation of a person's constitutional right to press freedom.
Mercedarius Dindo Patrimonio Generoso accused Perdices of lying under oath in his sworn complaint and amended complaint which the mayor filed against Generoso in June and August this year.
According to Generoso, the city mayor is liable for violating Article 183 of the revised penal code entitled 'False testimony in other case and perjury in solemn affirmation'.
Generoso filed the perjury complaint and swore before First Assitant City Prosecutor Ely Escorial.
A person is liable for perjury if he executes a material statement under oath and swears before a notary public wherein he makes a deliberate and willful assertion of a falsehood.
Generoso said the mayor lied in his sworn complaint and amended complaint when he stated that the defendant he was suing was an Australian residing outside, and is not found in the Philippines.
After stating this, Mayor Perdices alleged uner oath that since the defendant is residing outside the Philppines, such circumnstance constitutes a ground for the issuance of a writ of attachment.
Thereafter, in the same sworn statement, mayor Perdices prayed for the issuance of a writ of attachment.
As it turned out, the summons was served upon Generoso, a Filipino and resident of Dumaguete City.
Mayor Perdices validated this service of summons and even alleged later that the Australian defendant he sued, and Generoso the Filipino, are one and the same person.
When these contemptuous acts of the mayor were exposed in the media, mayor Perdices went to court, through his lawyers, and withdrew his application for attachment.
For this Generoso is holding Perdices criminally liable for the blatant acts of mocking, abusing and disrespecting the justice system.
Generoso also said that the act of the mayor and his lawyers of trying to fool the court into issuing an illegal attachment, he will initiate separate contempt proceedings against the mayor and his lawyers.
Their contemptuous acts degrade and impede the administration of justice, Genroso said.

Monday, November 05, 2007

Ghost stories

Last Halloween we were gathered around a dinner table, cousins, uncles, and aunts.
We talked about the favorite topic on Halloween---ghost stories.
For me, my Tito Bingo's true-to-life experience was the scariest.
He worked as an executive of a bank in Makati years ago.
His (temporary) office was in a building in the vicinity of Kalayaan Avenue, Makati.
One Saturday, he went to the office to work.
After work he went to the basement parking.
He was surprised when he noticed that his car had been transferred to another parking spot in the basement.
His driver was not in the basement so he called for him and inquired whether the driver transferred the car to another parking spot.
The driver himself was surprised that the car was transferred.
The key was with the driver all along.
They gave the bizzare incident little thought and just went home.
The following day, early in the morning at around 5:30 a.m. my tito Bingo drove the car for a jogging session.
When he was about to turn to a main road he glanced at the rear view mirror.
He swore he saw the image of a lady in white, long hair, who sported the scariest face.
He was stunned. He froze. He halted the vehicle.
Then slowly, he opened the door of the car, and went outside.
He went to the back of the car and tried to analyze, what he had just seen.
He saw no one inside the car.
We asked him whether the image he saw was seated in back of the car.
He said he won't claim one hundred percent that the image he saw was at the back seat.
He said he tried to to imagine and think that the image could have been of a woman who was walking behind the car, but he thought, it's 5:30 a.m. and there's no one walking on the street.
When he reported back to the office he asked the building guards whether there have been things happening in the building.
It was only that time that the guards confirmed that the building was the venue of two female deaths.
One was killed and the other committed suicide.
The guards said naturally they do not volunteer such kinds of stories for fear the building would run out of tenants.
But yes, the guards confirmed that strange things happen in the building.
Happy (post) Halloween...

Thursday, November 01, 2007

Causality

I am not very familiar with this word "causality".
I don't even know if I am spelling it correctly.
But I associate this word with Jimmy Licauco (His legal name: Jaime T. Licauco).
Jimmy Licauco does not know me, but he is a good friend of my Tito Bingo.
It is 11:30 p.m. November 1, 2007 and a while ago we were sitting at the dinner table here in our lola's home in Tagbilaran City.
The topic of our conversation strayed to Jimmy Licauco.
By the way, if you don't know Jimmy, he is famous for his explanations about things that are not really normal.
He has a radio program over DZMM called "Inner Mind."
Anyway, we were talking about Jimmy Licauco, and Tito Bingo said that Jimmy will tell you that nothing in this world happens by accident.
So, my other uncles like Tito Tony, suggested that perhaps we should invite Jimmy to conduct a seminar here in Tagbilaran.
We agreed that if that happens, we all should come and attend.
Tito Bingo said that this can be arranged with Jimmy.
A little later, my Tito Peter, sent a text message to Jimmy saying "How are you?".
Jimmy Licauco's response to Tito Peter's text was: "Am fine, thank u. Bilib naman ako sa yo. I also thot of u earlier tonite bec somebody fr bohol textd me askg if i have a seminar to be held in bohol. I said i have nobody that will organize one over there. Then i thot of asking ur opinion about its feasibility. What do u think?"
Talk about causality.
Nothing really happens by accident...

P.3M damage suit filed vs. Mayor Perdices

Dumaguete City Mayor Agustin R. Perdices was slapped with a P.3-million damage suit with the local court here last Tuesday.
Mercedarius Dindo Patrimonio Generoso, a Filipino and Dumaguete resident who writes an opinion for the Negros Chronicle, a 33-year old newspaper in Negros Oriental, filed a civil suit against the Dumaguete mayor for violating his constitutional rights and freedom to write for the press.
Generoso said the suit he filed last Tuesday is the initial salvo of several cases, administrative and criminal, which he is set to file against the mayor with various fora, including the office of the ombudsman.
The suit filed by Mercedarius Dindo P. Generoso is in connection with the earlier civil charges filed by mayor Perdices against an Australian citizen, whom the mayor alleged under oath resides outside the Philippines and is not found in the Philippines.
Yet, to Generoso’s surprise, the summons was mistakenly served upon him and the court directed him to Answer the mayor’s complaint.
The mayor alleged later that this Australian citizen he sued “claimed” to be a Filipino and led or mis-led the provincial government into entering a contract of services with him.
In the contract of services, this Australian citizen, whom the mayor alleged to have “claimed” to be a Filipino, also procured a residence certificate with the Dumaguete City government and came to the Philippines and appeared before, a notary public, Erwin Vergara, documents show.
Then later, Mayor Perdices, in a bizarre twist of his tale, alleged that this Australian citizen and Mercedarius Dindo Patrimonio Generoso, a Filipino, are one and the same person.
Mercedarius Dindo Patrimonio Generoso found the mayor’s sworn allegations ridiculous and contemptuous because he has never been an Australian citizen, and is not the defendant whom the mayor identified under oath in his complaint.
Contrary to the mayor’s allegations, I am not residing outside the Philippines, and I can be found in Dumaguete City, so I cannot be that defendant sued by the mayor, Generoso said.
Instead, it is Mercedarius Dindo Patrimonio Generoso who has been made to answer the mayor’s complaint, not the Australian who according to the mayor, under oath, resides in New South Wales, Australia and is not found in the Philippines.
Because of this harassment acts by the mayor against Generoso as a mediaman, Generoso said he has sued the mayor and is seeking damages for P300,000.00.
He explained that under the civil code, any public official who violates another person’s constitutional rights, such as the right to press freedom, can be held liable for damages.
This is the second suit of such nature filed in Philippine courts of recent recall.
The first was filed by several Manila journalists against First Gentleman Jose Miguel Arroyo, which is now pending before a Makati court.
Generoso said he has directed his lawyers to prepare other charges against the mayor before other courts for contempt, and before the office of the ombudsman.

Wednesday, October 31, 2007

Break

I am on official ten-day break from my daily routine.
I don't recall having such kind of respite from the daily grind so I am taking full advantage of it.
There have been a lot of things both old and new I have encountered so far which I would be writing about in the days ahead, all with pictures.
But for now, I'll keep on noting...

Monday, October 22, 2007

Death stalks

Death is a silent, invisible stalker.
It stalks you and me everyday.
The only question is, when will death strike?
It is only a question of when.
This is what engulfed me, and perhaps many minds when a blast at the Glorietta Makati killed more than ten innocent people.
The close relatives of those who were killed never ever thought that death was about to strike their loved ones.
Imagine, my partner Ted said he had a scheduled meeting at Gerry's Grill which is only less than thirty meters from the site of the explosion.
He said his meeting was at three p.m., and he could have used idle time at the Glorietta before the meeting, and he could have been one of those killed.
My wife just twenty four hours earlier from the blast passed by the Glorietta itself at the exact time, 1:30 p.m. of Thursday.
She said she passed by the site of the blast last Wednesday at around 12 noon. That's two days before the blast.
Me too. I go to Glorietta lunch time to buy some things like ink printer, office supplies, accessories.
The last time I was near the site of the explosion was just two days before, Wednesday.
I went to Park Square to have my computer adaptor fixed.
Park Square is about fifty meters away from the blast site.
Death is a cheat.
Many of those who were killed were young, healthy, full of energy, and even were still looking at better days or years ahead.
You could hardly meet any person terminally ill in that place.
Yet, death snatched these young innocent lives away in a single blast...like a thief in the night.

Friday, October 19, 2007

Libelous headline?

The Philippine Daily Inquirer can be embroiled in what would appear to be a publication of a "libelous headline".
The banner headline for the Inquirer's October 18, 2007 issue stated:
"GMA present, says solon"
This headline referred to the time when cash was reportedly distributed to congressmen in a meeting in Malacanang.
The story however was that the solon, Manila Rep. Bienvenido Abante, stated that President Arroyo was not present, when the cash was being distributed.
The word "NOT" was dropped in the headline, thereby giving the entirely opposite story.
The proper headline would have been:
"GMA not present, says solon"
But if this were the title of the story, this wouldn't have grabbed the headline, would it?
Let me analyze this before I discuss cases about media mistakes.
I believe that if a libel charge is to be instituted against the Inquirer, the persons who have direct cause of action would be President Arroyo, and /or Rep. Bienvenido Abante.
But quick to the draw, the Inquirer, immediately issued a retraction, plus correction, plus apology, plus explanation.
More importantly, the Inquirer conveniently described the foul-up as "inadvertent"
And then the Inquirer conveniently goes on to blame the reporter and the news desk---the natural scapegoats.
(Is there or isn't there such a thing as command responsibility in the newsroom? What are the responsibilities of the top-gun editors of the paper?
Anyway, with the retraction, correction, and apology, and the "inadvertence" explanation, the Inquirer immediately laid the groundwork for a legal defense agasint libel.
The offended parties here are public officials.
Therefore, under the New York Times standard, it would have to be the actual malice standard that would have to be applied in this case.
Was the Inquirer guilty of reckless disregard of whether or not the headline was true or not?
Did the Inquirer knew the truth that President Arroyo indeed, was not present during the cash distribution, but still proceeded to headline: "GMA present, solon says"?
But the Inqurier has already pre-empted everything by claiming "inadvertence", meaning negligence.
Negligence as we know, does not rise to the standard of actual malice sufficient enough to ensure an absolution to the offender.
In this case, the offended public official would have to establish clear proof that the Inquirer knew beforehand that GMA was not present, yet the Inquirer still proceeded with the headine: "GMA present, says solon"
We have very insteresting, and even funny jurisprudence about media mistakes, and "headline libel".
I will discuss them tomorrow.

Tuesday, October 16, 2007

Leakers in executive sessions may be criminally liable

Those responsible for leaking the events that transpire during executive sessions of the Congress or any of its committees may be held criminally liable.
In other words, to leak in executive session is a criminal act.
I surveyed the provisions of the revised penal code and I stumbled upon the following provisions:

"Article 144 Disturbance of proceedings. The penalty of arresto mayor or a fine from 200 to 1,000 pesos shall be imposed upon any person who disturbs the meetings of the National Assembly or of any of its committees or submittees, constitutional commissions or committees or divisions htereof, or of any provincial board or city or municipal council or board, or in the presence of any such bodies should behave in such manner as to interrupt its proceeding or to impair the respect due it."

So those who, during a meeting of the Senate,or any of its committees, behave in such manner as to impair the respect due it, are criminally liable.

I think to leak any information during an executive session is an impairment of the respect due the Senate. Those who leak such information, be he a senator or not, should be held criminally liable.

Another provision in the revised penal code that invited my attention is Article 229:

"Article 229. Revelation of secrets by an officer. Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification, and a fine not exceeding 2,000 pesos, if the revelationof such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification, and a fine not exceeding 500 pesos shall be imposed."

I think the very purpose of executive sessions is to enable a secret to be let out by a resource person, but to be confined among the members of the legislative body.

But if a member of the Senate, a public officer, reveals the secret which he came to know by reason of his being a senator or public officer, and such secret if revealed damages public interest, I think he can be held liable under this provision.

The third provision I came accross with is Article 291 Reveal secrets with abuse of office:

"Article 291. Revealing secrets with abuse of office. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity shall learn secrets of his principal or master and shall reveal such secrets."

So those waiters, utility persons, in the Senate lounge where executive session is being conducted may be criminally liable if they leak to news reporters what transpired during the executive session, because clearly they learned of such secrets by reason of their being waiters.

Why am I citing these penal provisions?

I think when a news reporter hears or receives a leakage from a senator or even a simple waiter or utility person during an executive session, I think the reporter is witnessing a crime being actually committed.

So what?

This has an impact on the journalist-source privilege.

Question: If a journalist, or news reporter actually witnesses a crime being committed i.e. a senator or waiter leaking secret info, and the journalist reports about this crime, but witholds the identity of his or her sources, can the journalist be compelled to reveal his or her source?
Does the journalist's source-privilege disappear in this instance?

Monday, October 15, 2007

Desperate choices

Not long ago I took a Ceres bus from Cebu City to Dumaguete.
It is the most accessible for me because there is always a bus that leasves almost every hour to Bato, where 25-minute-per-trip barges await to take passengers to Sibulan.
In one of my bus trips I had with me my camera.
One scene that amused me was this public comfort room, where the bus would make a brief stop to enable the passengers to relieve themselves.
What was amusing to me was that the price for use of the comfort room depended on what a patron/user relieved himself or herself of.
The rates for the use of the comfrot rooms were:
For "ihi" (urinate) --- one peso
For "libang" (bowel movement) --- three pesos.
I took a picture of a woman who apparently, by her looks in the photo, could not decide what she would relieve herself of.
It appeared she was in a dillema.
Or she could have been amazed at the payment scheme...

Friday, October 12, 2007

Tubercolosis

TB.
That is what tubercolosis is popularly known.
We were having dinner last night with aunts and uncles.
My conversation last night wth my Tital Mamel veered to her work.
She is a physician on infectious diseases, working with D.O.T.S.
I forgot what it means but her work is now focused on a world project aimed at stopping the spread of what is called Multi-Drug Resistant TB or MDR-TB.
I only knew last night that this is such a dreaded and deadly disease, more dangerous than ordinary TB.
Multi Drug Resistant TB speaks for what it is.
It is that kind of TB that resists many a drug treatment.
MDR-TB, she said affects around 30,000 Filipinos, living in urban poor areas.
She laments that their treatment rate is so low in numbers, only about 800 patients.
The reason is that treating MDR-TB is very expensive. It costs, she said US$3,500 to treat an MDR-TB patient.
Where do they get the money to treat these patients here?
She said there is a global fund, mostly coming from industrialized, developed countries that provides these funding to control the spread of MDR-TB worldwide.
Other industrial nations provide funds because they fear that with increasing migration, the threat of MDR-TB penetrating their countries, also increases.
Tita Mamel, Dr. Ma. Imelda D. Quelapio, said that is why a global fund is made available for developing countries like the Philippines.
Here is a fact that Tita Mamel told me last night.
She said the Philippines is the 2nd largest contributor of tubercolosis (not the MDR-TB, but ordinary TB) in the United States, next only to Mexico.
She said that is why visa requirements become all the more stringent due to strict medical checks to ensure that no person with TB enters the U.S.
There is a program in Saint Lukes Hospital for these medical checks for U.S. visa applicants.
Let's go back to MDR-TB.
There are two types of MDR-TB. It is either primary or secondary.
It is primary if MDR-TB is pread from one carrier to another.
It is secondary if TB patient does not follow strictly the six-month treatment.
As a consequence of not completing the six months treatement period, a patient develops secondary MDR-TB.
Ordinary TB then becomes the deadly MDR-TB because a patient will then become drug resistant, and thus could no longer be easily treated with ordinary drugs.
She said the Philippines is already advanced in terms of treating MDR-TB, sans the needed funding, as they began the treatment project in 1999.
That is why she is invited to many countries to help start off similar treatment programs for MDR-TB.
While in terms of the rate of patients treated is so low due to accutely deficient funding in the Philippines, the impact of the program is very effective.
That is why other countries look to the Philippine program as sort of a model for starting MDR-TB treatement prjects.

Thursday, October 11, 2007

Alternative law search

A few months ago I blogged about an alternative to Lex Libris, E-library. A visitor referred me to another alternative to law search called Seek Juris at http://www.geocities.com/tzitech/seekjuris.htm . I'm interested to try this out, but I don't know the contact details. Lex Libris is a little costly if you are a subscriber, I must admit.
In my own experience, as a practitioner, these law search aids have become quite indispenseable, and very helpful in my practice.
Practically, I have a mobile law office. I draft pleadings even at Starbucks, or while waiting for my hearing at the mediation center, or while waiting for a flight at the airport.
If a client calls me for a query while I am outside the office, I don't have to go back to the office to research the answer or opinion. I just open the Lex Libris in my laptop. It's saves time, generates quick response for the client.
This is modern day law practice, huh?
Its like having all the SCRA Philippine Reports and your law books tucked in four computer discs. Its a portable law library.
Good investment.
Which reminds me...I haven't paid for my 2nd quarter updates....

Thursday, October 04, 2007

Re-think the libel decriminalization position

There are a practical reasons not to push for wholesale libel decriminlization.
Journalists pressing for indiscriminate decriminalization of libel do not reach first base, mainly because it naturally does not generate support from lawmakers.
Libel is a public official's bargaining chip.
That is why lawmakers are allergic to proposals to decrminalize libel.
And even assuming it passes both houses of congress, the body language of President Arroyo when it comes to libel decriminalization seems to be: "over my dead body."
She could likely veto it.
Journalists should instead re-package, and push to remove jail terms for defamation that involves the constitutionally valued political speech.
(I think there is a pending Senate bill on this already)
That would be less an irritant to the ears of our lawmakers.
Is there a difference? Of course there is.
A journalist's position, I submit, should be to remove the jail term for liel involving political speech, but to let it remain a criminal offense.
Is it not that by removing the jail term, it removes libel from the realm of criminal processes?
No. Aside from jail term, there is a penalty called the fine.
So if the jail term is removed, let the fine remain as a punishment, aside from of course the damages which the offended party may seek (which is civil in nature).
Is there any advantange to the journalist by advocating this?
There is. A lot, I think.
First, by letting libel remain a criminal offense (but with only the penalty of fine for libel convictions involving political speech), the proof required of the state to secure a conviction is "proof beyond reason able doubt."
If libel becomes civil, the plaintff needs only to prove what is called "preponderance of evidence", where the judge just weighs the evidence and see which evidence is "heavier".
But with "proof beyond reasonable doubt" as a requirement, the prosecution needs to establish more.
This goes to the benefit of the offender, the accused.
Another benefit if libel remains a criminal offense is that there is an added avenue to wage battle, and that is at the fiscal's level.
If libel were civil, it immediately goes before the judge.
So what's the advantage of having another level to battle one's case?
Remember, at the prosecutor's level, there may be no need of a lawyer.
So it becomes economical to the journalist.
What journalist organizations should do is organize a group of lawyers that will give legal advice to journalists entagled in the prosecutor's level.
From my experience, the discussions of libel in the prosecutor's level merely recurs.
What becomes different are the factual circumstances, but the prinicples are established.
So lawyers have a "de kahon" set-up which would come in handy in helping journalists draft and file their counter affidavits.
And if the journalist gets used to being sued for libel, I'm sure he would immerse into a certain comfort zone, such that drafting counter affdiavits would be a walk in the park, so to speak.
So at the prosecutor's level, there is no need to hire a lawyer, and the journalist has the chance of having the complaint against him dismissed, except of course if the complainant is the First Gentleman.
(Was there ever a libel complaint of the First Gentleman dismissed by a prosecutor, whose boss is the First Gentleman's wife?)
So from a procedural standpoint, there are advantages to let libel remain in the penal books.
Just minor changes needed.
So all these radical bandwagon movements for wholesale libel decrminalization were done without much thinking, I believe.

Tuesday, October 02, 2007

A case against libel decriminlization

I do not support decriminalization of libel.
Many Filipino journalists are advocating sweeping decriminalization of libel.
I think, strategically it is unhelpful to the working press.
To reform our libel laws, I propose the legislation of the actual malice principle, mainly as instructional guides of the trial courts.
I propose removal of prison terms for speech of high constitutional values.

Over re-action

The band wagon decriminalization libel is an over-reaction.
Members of the press are going overboard by pushing to decriminalize criminal libel.
This is a classic case of burning down the house to roast a pig.
As a journalist, I would be among the first to protect press freedom.
As a student of libel law, I would be more cautious about total decriminalization of libel.
Criminal libel law exists because it serves to balance private interests vis-a-vis the widespread guarantees of freedom of speech.
Historically, there has been an unending tension between the need to protect private reputation, and the need to protect the freedom to speak.
The thrust has always been to find a perfect balance between two opposite interests.
Decriminalization of libel provides no assurance that this balance of interests will be preserved.

Levels of constitutional protections

The constitutional guarantees of freedom of speech and of the press exist on different levels.
A greater degree of constitutional protection is accorded that kind of speech that dwell into the affairs of society, commonly called “public speech” or “political speech.”

The problem with our libel law

The problem with our criminal libel law is its inability to distinguish the hierarchical protections that the constitution accords free speech.
The libel law does not distinguish, for instance, speech exercised in pursuit of political ends, and speech that is of public concern, as against speech of which the public has no concern.
The solution is not to eliminate (decriminalize) libel law, but to fix (amend) it.
There are areas in libel that still need to have criminal sanctions, if only to maintain that balance between private reputation interests and press freedom interests.
Libel entails penal sanctions because it is a measure designed to restrain a victim from resorting to violence or committing breach of the peace to vindicate his honor.
Instead of vindicating honor by the gun, the criminal libel law is offered so honor can be vindicated through the gavel.
What is objectionable is the sweeping effort to totally decriminalize libel, which would result in a wholesale or packaged eradication of a relief designed to maintain that balance of interests.
True, there is a need to remove penal sanctions in defamation cases involving political speech, including speech that involve public officials or public figures on matters of public interest. This is the right direction.
But the removal of penal sanctions should not be made upon all types of cases.
For instance, libel concerning speech on purely private matters involving private individuals, of which the community has no concern, need not be decriminalized. Speech of purely private concern are characterized as having reduced constitutional value compared to speech of public concern. This was discussed in the United States Supreme Court case of Dun & Bradstreet Inc. versus Greenmoss Builders Inc., 472 U.S. 749 (1985).
If there is an indiscriminate removal of penal sanctions in libel cases, the result would be the creation of an imbalance between the need to protect private reputation and to uphold free speech.
If libel is decriminalized, those whose private reputation are attacked will not have adequate means of legal relief, and would likely resort to committing breach of the peace.

Proposal

Our proposal then is to carefully institute amendments in our libel laws, so that we will substantially reduce (or virtually eliminate) the clutch of criminal libel on those speech that have been accorded the highest constitutional protections.
Specifically, it is proposed that an amendment be made to legislate the actual malice doctrine and place it in the statue books.
An amendatory provision in our libel statute, particularly on Article 354 of the Revised Penal Code may be crafted in the following manner:

“Public officials or public figures shall be prohibited from recovering damages for defamatory falsehoods relating to their official or public conduct, unless they prove that such statement was made with actual malice, that is, with knowledge of its falsity or with reckless disregard of whether or not it was false. In cases involving private individuals concerning speech of public concern, such private individuals shall not recover damages unless they prove fault and falsity. Provided that, in no case shall imprisonment be imposed.”
We propose that this suggested amendment be the start of legislative discussions for developing our libel statutes.
With this amendatory provision, we retain criminal libel as a relief for any speech other than political speech.

Skeptical suicide?

I am quite intrigued at the violent death of Maria Jeanette C. Tecson, a lawyer, 40 years old.
The reason is because she died in the same building where I have my law office.
She was reported to have died under violent circumstances inside a hotel room in Richmonde Hotel which is located at No. 21 San Miguel Avenue corner Lourdes Street, Ortigas Center Pasig City.
Now let me clarify. This building is divided into two.
One is the hotel, Richmonde Hotel, while the other is where the various offices are located, the Richmonde Plaza.
I haven't heard of Atty. Tecson except that just like many, she became quite familiar because of the disqualification case agasint Fernando Poe Jr., and the infamous Pacific Plans Inc. fiasco.
Atty. Tecson was involved in the filing of the disqualification case against FPJ, while she acted as lawyer or spokesperson for Pacific Plans where she appeared on nationwide television many times.
So her face looks familiar.
Police are heavily hinting at suicide. But some are suspicious, and say the police should not rule out homicide or murder.
For me, the police should investigate more.
What strikes me immediately is that if it wasn't suicide, then how could the killer have escaped the guards of the hotel?
What time did she die?
These questions are significant to me because I know of certain secret passages in that building where one can come and go unnoticed, even by the barong-clad security guards of the hotel.

Monday, October 01, 2007

Bye Ben

It's goodbye for Benjamin Abalos from a scandal-ridden career in government service.
The embattled Comelec chair, fell from grace after sworn statements accused him directly of offering to bribes high ranking government officials, and a private businessman, in order to corner a multi-million dollar telecommunications contract between the government and a state-owned Chinese telecom firm.
The controversy has taken its toll not only to Abalos, but to his family, prompting him to step down.
Many hailed Abalos' decision to resign saying he has save so much government time and resources, and has spared the nation from another highly divisive impeachment process.
But others hinted Abalos resigned to protect other high officials who may be behind the telecom scandal.
Almost every national scandal has Benjamin Abalos' name stamped on it.
In the Comelec, Abalos' name surfaced prominently in the controversial billion Mega Pacific computerization deal. Abalos was said to have connections with the proponent, the Chua-controlled Photokina.
Under Abalos watch at teh Comelec, the nation witnessed unprecedented electoral scandals.
There was the Garci-scandal in the 2004 preidential elections where Gloria Macapagal Arroyo was caught in taped conversations with a Comelec commissioner.
There was the mind-boggling last minute spurt of Juan Miguel Zubiri in the 2007 senatorial elections, that saw Zubiri overtake Koko Pimentel solely due to the "magical" results in Maguindanao province.
This came after Abalos "co-incidentally" bumped with Zubiri's parents at the a posh Makati restaurant.
There are quite a number of similarities between that Zubiri episode and the NBN scandal.
Abalos claims his close encounters with the Zubiris at the height of the election canvass were by chance, in the same manner that he claims his meetings with government officials at the Wack Wack Golf were also chance encounters.
Then, the election returns of Maguindanao were 'lost' in the hands of election supervisor Lintang Bedol.
In the same way, the contract signed by Transportation Secretary Mendoza and Chinese officials also were lost one day after the signing.
Similar alibi, similar modus...simply too good to be true.

La Salle rips Ateneo defense

In yesterday's sudden death, death became sudden for the Blue Eagles.
The Green Archers advanced to the UAAP finals after beating Ateneo 65-60.
Nothing more can be said except that La Salle played better basketball.
Ateneo's defense collapsed and crumbled, as La Salle punctured dagger shots one after another in the late stages of the game.
La Salle deserved to advance.
'Till next season....

Sunday, September 30, 2007

Do-or-die--- ready for the big game

Today is the day.
It's do-or-die in the UAAP games this afternoon between Ateneo and La Salle.
My son Joshua is readying himself making sure he adds to the blue cheers at 3 p.m. at the Araneta Coliseum.
La Salle is the team that snatched the twice-to-beat position, so hopefully that will happen today.
Never has the UAAP season been so exicting.
For many this will be like the championship match, never mind if the unbeaten University of the East is waiting in the sidelines for the finals.
UE is the unbeatean team and the winner between La Salle and Ateneo today will advance.
Truth to tell, La Salle is very formidable this year, so it will take a lot to beat them.
Yet, this could go either way, as it did in the last few games between the Archers and the Eagles.
I am pleaeantly surprised by the performance of rookie Nony Baclao who has become a factor for the Blue Eagles speically at the post.
So let's take a break and get on with this one big fight.

Saturday, September 29, 2007

At loggerheads

I read the news that the executive department is urging the Senate (legislative branch) to just go to the Supreme Court (judiciary) and question Secretary Neri's assertion of executive privilege in dodging ultra-sensitive questions on the controversial NBN broadband contract.
This is a very loaded statement from the executive and is sending the signal of things to come.
When the executive department is prodding the Senate to just file the appropriate petition before the Supreme Court, then chances are, Secretary Neri will no longer be coming back to testify, even on executive session.
The executive department, through its legal counsel, is painting the scenario that it will be the Senate that will be the petitioner in the Supreme Court.
Therefore, it gives a signal that the executive department will do everything it can, even to the extent of using the armed forces to prevent the legislative department from cracking the shield of executive privilege.
It could have been the other way around.
Secretary Neri could go back to the Senate, in executive session, and then invoke executive privilege.
If this happens, Secretary Neri will be cited for contempt and could be detained, just like National Security Adviser Norberto Gonzales before.
In such a scenario, it would be Secretary Neri, or the executive department, through its lawyers, that will petition the Supreme Court, with the Senate as respondent.
In the second scenario, Secretary would be detained in that holding room at the parking area at the ground floor of the Senate building, and will spend his time there until he answers questions of the senators.
The executive deaprtment will then have to file a petition for habeas corpus and ask the Surpeme court to uphold the legality of Sec. Neri's availment of the executive privilege.
But the executive department, based on the latest news, is not inclined to allow the second scenario to happen. This, even as Secretary Neri has asured he's going back to the Senate.
It is probable they're going to guard Secretary Neri, and prevent him from going back to the Senate, at all costs.

Friday, September 28, 2007

Warning on filing petition for review

I squeezed myself inside the elevator at the Makati city hall after a hearing a few days ago.
It was a pack of lawyers.
I heard a colleague giving a warning that the Supreme Court has recently dismissed a peition for review allegedly for the sole reason that the affidavit of service attached to the petition contained an improper jurat.
The lawyer explained that the affidavit of service was improperly notarized, as it did not comply with the new notary rules.
The new notarial rules have set more stringent requirements, particuarly in identifying the affiants.
The colleague said, "Imagine, your petition could be dismissed based on a notarial irregularity in the affidavit of service."
He said it was a July 2007 ruling of the Supreme Court.
I should verify this.

Wednesday, September 26, 2007

FG forgives journalists, drops libel suit

First Gentleman MikeArroyo claims that because of his miracle-of-the-heart experience, he has forgiven the journslists who caused him anguish, and has decided to drop the libel suits he has filed.
Many say the real reason is that the First Gentlemans physical condition does not allow him to stand the rigors of court trials.
He could just drop dead.
Here is a dispatch I got from the National Union of Journalists in the Philippines (NUJP):

Court grants FG's motion to dismiss libel suit vs Newsbreak editors

A Manila court on Tuesday granted the motion of First Gentleman Jose Miguel Arroyo asking it to dismiss the libel case he filed against six members of the editorial staff of news magazine Newsbreak.
In his decision, Judge Jansen Rodriguez of the Manila Regional Trial Court Branch 6 said Mr. Arroyo's petition "cannot be ignored.
In the absence of his testimony, the prosecution for libel will fail."Mr. Arroyo earlier sued Marites DaƱguilan Vitug, Glenda Gloria, Ricky Carandang, R.E. Otico, Jose Dalisay Jr. and Booma Cruz over a 2004 article about his alleged real estate holdings in the United States.
They had objected to the first gentleman's motion to dismiss, saying that forgiveness should is not the ground for the dismissal of the case.
The respondents had maintained they have not committed libel.
The respondents argued that the filing of the libel case (one of several filed by Mr. Arroyo) had "brought to the fore questions which have wide ranging effects on the freedom of the press ... and even the definition of libel as it applies to the Philippine setting. It has caused fear in the hearts of many journalists."
After Mr. Arroyo's recovery from a near-fatal heart attack in April, he decided to withdraw the libel cases he had filed against Newsbreak and all other publications or a total of 46 journalists.
Mr. Arroyo holds the record of suing the most number of journalists.
In a motion to dismiss the libel case against Newsbreak, he argued: "Because I have been generously given a second lease on life, I have decided to forgive everyone who has caused me pain. Because of this, I am no longer interested in pursuing the case."

Tuesday, September 25, 2007

The Writ of Amparo

Today, the Supreme Court approved, during its en banc session the proposed rules for the adoption of what is called the writ of amparo.
It is a form of relief granted to persons whose constitutional rights are being threatened. The writ of amparo seeks to "shelter," to act as a refuge, against threats.
The promulgation of the rules for to oprationalize the issuance of this writ of amparo has come in the wake of alarming cases of forced disappearances, extrajudicial killings happening in our country.
Some international groups have pointed to the security forces of the government as having a hand in these violations of human rights.
Anyway, I am certain that not a few (in the legal profession), including of course myself, are unfamiliar with the rules or even concept writ of the writ of amparo.
But this animal called "writ of amparo" gained popularity---or properly notoriety---during the 1991 bar examinations in political law.
Political law is the first bar exam subject on he first Saturday of the bar exams.
And this was the very first question asked for the whole bar examinations:
what is the writ of amparo?
This was obviously a "killer question"
A question like that can easily drive a person to feel ominously bedeviled for the rest of the exams.
It is the legal equivalent of the medical term: dead-on-arrival.
You just arrived for the exam and you're already dead.
At the Ateneo Law School, many professors have this style of injecting so-called "killer questions" during mid-term or final examinations.
It is that question that is purposely designed to "jolt" the examinee, or to psychologically wear him down at the very first encounter of an examination question.
A killer question is usually an "out of this world question", a question least expected by an examinee. It could be the most difficult question of the exam, and the very first exam question.
It happened during the 1991 bar examinations.
And who was the examiner for political law that year, who injected this killer question?
He is now associate justice of the Supreme Court Adolfo S. Azcuna, law practitioner, professor and member of the Ateneo Law Class of 1962.
You could sense a revolting reaction after that political law exam morning among the baffled, bewildered, and bothered examinees.
No one, it seemed, knew even the tiniest thing about what the writ of amparo is. Clueless could perhaps be the best description.
There were those, out of anger, who described the question a irrelevant, outlandish, stupid, etc. What is this anyway? And how does this even come close to the practice of law?
Little did we know, that more than a decade after, the writ of amparo would become one of the most relevant concepts put to life in this juridcition by the Supreme Court.
Under the constitution, the Supreme Court is expressly empowered to promulgate rules for the protection and enforcment of constitutional rights
We have obviously a Surpeme Court sporting a high sense of judicial pro-activism, quickly responding to legal needs of the people, partaining to their basic and fundamental rights, like the right to life, and the right to liberty.
But there is a story behind that eventful bar exam question of 1991.
Not long before (or was it after?) it was posed as a bar exam question, there was a legal paper, a research about the writ of amparo, that was published in the Ateneo Law Journal.
Guess who the author was?

Monday, September 24, 2007

Corruption probe by the Supreme Court

I just heard the news that lady Supreme Court justice Consuelo Ynares-Santiago has been dragged in what appears to be a corruption probe conducted by the Supreme Court itself.
The reports are still sketchy at this point, but from what I heard from the news there was an attempt to deliver reportedly ten million pesos to her office at the Supreme Court.
The report I received was that a staff of the lady justice brought a box containing the money to the lady justice's office.
The justice reportedly fired the staff for bringing the box to the office.
The Supreme Court en banc is to investigate this incident, upon the proddings of the Justice Santiago herself, reports say.
As a practitioner, I must say it is very easy to charge and accuse judges and justices with corruption, or receiving grease money or bribes, or whatever you call it.
But what somestimes happens is that the judges and justices are just made scapegoats by unscrupulous fixers.
This is not to say, that there are no corrupt judges or justices.
Precisely, the Supreme Court continues to crack down against corrupt judges or justices.
In Makati City very recently, where I linger almost every morning, a judge reported to her office, only to find out that she had already been ordered barred from entering her own sala and office.
To the judge's shock, security guards were already placed in her office, upon orders of the Supreme Court, with orders not to allow her to enter.
This was according to some judiciary personnel in Makati.
When word of this incident circulated, there were some in the legal community who observed that T.R.O.'s suddenly became something difficult to procure.

Sunday, September 23, 2007

Just won a case

I just learned today I won for my client his case before the Supreme Court.
My client Danilo A. Dylanco sued a condominium developer ASB Devleoment Corp. and the mortgagee-bank, Metrobank before the Housing and Land Use Regulatory Board (HLURB) in 2004. My client Dylanco already fully paid for his condominium unit, but the developer failed to deliver the units to him. It failed to finish the condominium building. Worse, the developer mortgaged the building to Metrobank without informing my client and the HLURB.
The case went all the way up to the Supreme Court.
The high court issued a decision last September 14, 2007 in the consolidated cases of Metrobank versus SLDT Holdings Inc., Danilo A. Dylanco and ASB Development Corp. G.R. Nos. 185181-82.
The case is, of course not final and executory as the petitioner has fifteen days from receipt to file a motion for reconsdieration.
But the advent of technological advances allows us to be aware of the outcome of our cases through the internet (website of the supreme court www.supremecourt.gov.ph), before the hard, paper copies are received by the parties.

Desperate, silly proposal

What is this silly proposal of some congressmen to postpone the barangay elections scheduled on October 29, 2007?
According to some congressmen, the brangay elections should be postponed because of the controversies hounding the chair of the Comelec, commissioner Benjamin Abalos.
They are saying that since Abalos is busy defending himself of the anomalous broadband contract mess, the barangay elections should be postponed.
This is a silly proposal, a clear sign of desperateness.
Abalos is not the Comelec. If Abalos is busy defending himself against these charges of having received kickbacks, then Abalos should take a leave of absence so that the Comelec can function continuously, and proceed to hold the barangay elections.
Nobody is indespensable.
Besides, Abalos' legacy and stint at the Comelec is so rotten that the Comelec is better off without him.
With Abalos at the Comelec, the 2004 and the 2007 midterm elections have been scraped of all credibility.
2004 will be remembered for the Garci scandal. 2007 will be unforgotten for the Bedol black magic.
Theses were all under the auspicies of commissioner Abalos.
Don't forget, the multi-million dollar Mega Pacific botched computerization program of the Comelec.
Congressmen don't want barangay elections to proceed. They want the status quo maintained because many of these incumbent barangay officials are their political proteges.
If barangay elections are held, congressmen will have to invest and take cash out of their pockets to fund their political proteges running in the barangays polls.
Now, the latest ploy of some of these congressmen to postpone the October barangay elections is not only outlandish.
Its plain stupid.

Saturday, September 22, 2007

Joey DV can't be held liable under the anti graft law

My position is that Jose De Venecia III cannot be held liable for violation of Section 5 of the anti graft law (R.A. No. 3019).
The operative word (the verb) in the law is "to intervene".
The prohibition contemplated in Section 5 of R.A. NO. 3019 is when there is a contract between one person and the government, and a relative (son, spouse, daughter, etc) of the President, vice president, Senate President, House Speaker, intervenes in that particular contract, transaction of application.
This is my impression based on the decision of the Supreme Court in E. Razon, Inc. versus Philippine Ports Authority (151 SCRA 233) June 22, 1987.
If you would notice in that decision, the contract was nullified because Alfredo Bejo Romualdez was related to the then First Lady Imelda Marcos.

But Romualdez was not a party to the contract. The parties to the contract were E. Razon Inc. represented by its President Enrique Razon and the Philippine Ports Authority represented by general manager E.S. Baclig.

It was Romualdez' indirect intervenion, i.e. by acquiring the controlling shares of E. Razon Inc. that placed him under the coverage of Section 5.
In the case of Joey De Venecia and AHI Holdings Inc., it was Joey himself, in behalf of his own company who was trying to apply for a BOT arrangement with the government (DOTC).
Joey was not intervening for a different person, who was applying for a contract with the government.
It can be argued that the word "intervene" includes intervening as a party to the contract itself, not just intervention in behalf of another person who is a party to the government contract.
I can't agree with this argument because it would unduly deprive relatives of top government officials from entering into any contract with the government.
Are relatives prohibited from entering intro contracts with the government?
The answer is No.
What is the basis?
Section 5 itself. Look at the lower portion of the provision:

"Provided, that this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfuly performed in an official capacity or in the exercise of a profession."

If Joey De Venecia was already dealing with the government in the same line of business prior to the assumption of his father as Speaker, then Section 5 does not apply to him.
If the application by Joey De Venecia was one the approval of which is not discretionary on the part of the Speaker but depends upon compliance with requisites provided by law then Section 5 does not apply to Joey De Venecia.
If Joey's application with the government was in the exercise of his profession, then Section 5 does not apply.
I want to emphasize that just because one is a son or daughter of a top government official, his or her rights are diminished, that, for example, he or she can no longer contract with the government, or he or she can no longer run for public office, etc.That would be a violation of a basic human right. That principle would be discriminatory against certain persons by accident of birth.
What Section 5 prohibits is the possible or probably undue advantage (due to influence) that may arise due to filial relations with powerful government officials.
However, under any circumsntance, prudence, decency and delicadeza dictate that realtives of high government officials refrain from taking part in contracts with the government.
That is why, if I recall rightly, when President Estrada and President Arroyo, and President Aquino (I believe) assumed the presidency, one of their first official acts (whether sincere or not) was to issue a memorandum barring relatives from entering into contracts with the government.