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, 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.

Friday, September 21, 2007

God answers suit, cites immunity

I blogged a few days ago about a United States state senator who sued God the Almighty.
I thought the incredulity ended there.
But here's more suprise--- God answered the suit.
The Answer submitted by God raised the defense of immunity from suit and lack of jurisdiction.
Just as I anticipated, God filed the Answer in his own behalf, without any lawyer to defend him.

Thursday, September 20, 2007

The Anti Graft law

The Anti graft law (Republic Act No. 3019) must be one of the best pieces of legislation that has come out of the Congress.
There is one rather obscure provision that has taken centerstage in this law, in the wake of the controversial multi-million dollar broadband project now under investigation.
I am referring to the prohibition on certain relatives of influential government officials.
The provision states:
"Section 5. Prohibition on certain relatives. - It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice President of the Philippines, the President of the Senate, the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract, or application with the Government: 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 capacityor in the exercise of a profession."

Wednesday, September 19, 2007

Faved rebel resto

Occassionally, we partake of a weekly salo-salo of home made food, drinks and refreshments in a park in Makati at Velasquez Street.
Every Saturday there are a variety of home made food sold to the public.
They range from common Filipino food and dishes like sinugbang isda, barbique, lechon, roasted calf, to French food (which I can't recognize, nay remember), Italian pasta and pizza.
I brought my camera one Saturday and what caught my eye was a food stall which perhaps could be a favorite restaurant of the dreaded terrorists/bandits from the south.
Meantime, a stall selling roasted calf had a catchy and amusing name for thier store.
If you are in Manila, tyring visiting Veslasquez park in Makati, along Alfaro Street.
There is different kind of a food festival going around the area.

God sued; injunction sought

I couldn't believe my eyes when I stumbled upon an article reporting that a U.S. state senator has sued God for alleged terroristic threats.
The complainant-senator even sought a permanent injunction.
As to how the Summons would be served on the defendant, the news article did not state.
Some people may be worried that if this case progresses, God may be left without any lawyer.
The living lawyers are under Satan's payroll.
The dead ones are burning in hell.

Editors Publishers shouldn't be liable in libel suits

The problem about Philipine libel law is that the editor, and even the publisher are charged together with the reporter.
There are good reasons to say that the editor, and specially the publisher shouldn't be charged together with the person who wrote the purportedly libelous article.
I believe the New York Times v Sullivan ruling supports this theorem, which I intend to elaborate in my future blogs.
One should read closely the ratiocinations of the U.S. Supreme Court when it found that the New York Times Company were not driven by actual malice in publishing that full page ad containing false statements.
You would notice that determination of actual malice should be directed at the persons directly responsible for the false publications in the newspaper organization.
Let me quote that significant statement in the NYTC v Sullivan ruling : "the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement"
Also, Manila Bulletin Publisher Napoleon Rama, who until now, seemingly possesses that potion called the fountain of youth, wrote a position paper once that contended that publishers (like him) should not be made co-respondents in libel actions.

Tuesday, September 18, 2007

A matter of credibility

The open war between Comelec chair Benjamin Abalos and the son of House Speaker Jose De Venecia boils down to one quesition: Who is more credible?
Filipinos are of course aware of the public feud between Abalos (some prefer to call him "commissioner Abalos" for obvious reasons) and Jose "Joey"De Venecia III.
Joey is accusing Abalos of pocketing millions of dollars of kickback in the broadband deal which Joey says was brokered by the Comelec chair.
Comelec chair and commissioner Abalos has flatly denied Joey's accusations.
Incidentally, Joey has dragged the sickly First Gentleman Mike Arroyo of backing Abalos and bullying him (Joey) to "back off" the broadband deal.
The money involved is so huge that it makes the jueteng collections of former President Joseph Estrada, which was one of the basis of his plunder charges, seem like peanuts.
What is involved is at least US$130million worth of kickbacks which Abalos allegedly is responsible for arranging with the Chinese telecommunications firm, ZTE Corp.
Who is believable, Joey De Venecia or Abalos?
At this point I am not preapred to take Joey's revelations hook line and sinker.
But the problem is that commissioner Abalos does not appear in the Senate investigation to refute the charges.
Neither will the cabinet secretaries.
Comelec chair Abalos says he wants to preserve the independence of a constituional body which is the Comelec, so he won't attend the Senate hearings.
The problem with this excuse is that the charges against Abalos has got nothing to do with Comelec, but his sideline deals as the most powerful man in the Philippines from January 15, 2007 to June 30, 2007.
Comelec chair Abalos said that Joey's testimony in the Senate were "all lies"
That's a general denial, Mr. Abalos. As a lawyer you know the effect of general denials. That won't work.
What goes against Abalos and the Arroyo government is that they are refusing to refute the accusations of Joey in the Senate.
Worse, Mike Aroryo slip out of the counrty on the eve of Joey's scheduled Senate testimony.
If Mike Arroyo didn't know beforehand that Joey was going to involve him in this multi-million dollar transaction, so now he knows.
He should be rushing back to the Philipines to explain things.
He shouldn't be on vacation, as his legal parrots want the people to believe.
President Arroyo also is not of help when she directed Transportation Sec. Leandro Mendoza to answer Joey's accusations in the Supreme Court and not in the Senate.
How can Mendoza do that when he is not a lawyer?
Only lawyers appear before the Supreme Court.
More, the Supreme Court is not a trier of facts but resolves and adjudicates questions of law.
The people are waiting for the government's response to Joey's accusations.
If they don't, Joey's testimony's stands, and the government looses by default.
The government stands to loose the credibility war.

Monday, September 17, 2007

Why no actual malice in NYTC v Sullivan

Press practitioners and advocates know already that the significance of the New York Times Co v L.B. Sullivan decision in 1964 established the actual malice doctrine.
Perhaps, the most significant statement by the United States Supreme Court in that decision was:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

This has become widely known as the actual malice doctrine.

The issue in defamation is not so much about determining whether or not the published material was false, but whether the publisher exercised reckless disregard of whether the defamatory published matieral was false or not.

The issue in defamation is determning whether the publisher knew the material to be false, and yet proceeded to publish it.

So how do we know whether the publisher "knew the material to be false"?
So how do we know whether the publisher exercised "reckless disregard" of whether the defamatory mateiral was false or not?

To answer this, one really needs to look at the environmental facts, specially those facts which arose prior, or even contemporaneous to the publication.
Knowing a defamatory material to be false is a state of mind.
How do we know the publisher knew beforehand that the defamatory mateiral was false?

In the Sullivan decision, the U.S. Supreme Court took steps to look at the surrounding facts, before it concluded that the New York Times Company, or its editors, were not in reckless disregard of the truth, and thus did not have actual malice as to hold them liable for defamation.

Let us review the NYTC v Sullivan decision.

The Montgomery police commissioner sued NYTC for publishing falsities in a full paid page ad containing ten paragraphs.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
"In Montgomery, Alabama, after students sang `My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."
Sixth paragraph:
"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times -- for `speeding,' `loitering' and similar `offenses.' And now they have charged him with `perjury' -- a felony under which they could imprison him for ten years. . . ."

It was cleart that some of the published statements in the ad were false.

The U.S. Supreme Court of course ruled that there was no actual malice on the part of NYTC. And here is what the Supreme Court found out:

"Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The mere presence of the stories in the files does not, of course, establish that the Times "knew" the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times' policy of rejecting advertisements containing "attacks of a personal character"; their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice."

Note that in this paragraph, the U.S. Supreme Court clearly distinguished between negligence and recklessness.
Negligence is constitutionally protect. Recklessness is not.

(I am forced to draw the case of Eugenio Lopez Jr. v Court of Appeals (1970), a case of journalistic negligence [the case of unintentional photo swapping, remember?].
It did not follow the NYTC v Sullivan ruling, did it?
But that's another insightful discussion.)

Query on defamation

A newsman was convicted of libel in Tagbilaran City.
Rolly Cavan posted a query:
Dear Editor,
A publisher and reporter in Tagbilaran, Bohol was recently convicted in the regional trial court. The issue was about purchase of over-priced road equipment, Salcon Utility Joint Venture Agreement, and the expense of 160 million Ubay Dam, with no significant progress visible in the site.
Governor Aumentado, through his counsel, former governor Butalid won the case against the defendant, publisher and reporter, for libel.
Could, your interpretation of the, New York Times v. Sullivan, when creatively argued, and brilliantly explained, have prevented the conviction or perhaps help the newsmen on an appeal?

My response:
Actual malice in defamation is somewhat 'fluid'. It is not brittle.
One has to get to know the material facts of the case.
If you would notice, "reckless disregard" of the truth is kind of a state-of-mind thing. It's difficult to establish.
You have to ascertain and analyze the environmental facts.

Saturday, September 15, 2007

2001 Supreme Court Justices

The following was the composition of the Philippines Supreme Court in the year 2001:
Hilario G. Davide Jr., Chief Justice; Associate Justice Artemio Panganiban, Reynato Puno, Bernardo Pardo, Jose Melo, Jose Vitug, Minerva Gonzaga-Reyes, Arturo Buena, Leonardo Quisumbing, Sabino de Leon Jr., Jose Bellosillo, Vicente Mendoza, Angelina Gutierrez, Consuelo Ynares Santiago and Santiago Kapunan,
Six years after, only four justices have remained. The others have reached compulsory retirement age, of course.
The four are Justices Reynato Puno (current chief justice), Leonardo Quisumbing, Consuelo Santiago-Ynares, and Angelina Sandoval-Gutierrez.
Since then President Gloria Arroyo has appointed ten new justices to the high tribunal:
They are Associate Justices Antonio T. Carpio, Ma. Alicia Austria-Martinez, Renato C. Corona, Conchita Carpio-Morales, Adolfo S. Azcuna, Dante O. Tinga, Minita Chico-Nazario, Cancio C. Garcia, Presbiterio J. Velasco, Jr., Antonio Eduardo B. Nachura.

Bizarre court compromise

The courtroom yesterday erupted into laughter as other lawyers listening to ourt court room sparring led to the most bizzare compromise arrangement I have ever encounter.
My client sued two defendants. My client sued a life insurance company and its agent.
I entered into a compromise arrangement with the insurance company and we signed a compromise agreement which we have submitted to the court already.
During the hearing of the compromise agreement yesterday, the counsel for the other defendant, the insurance agent refused to sign the compromise agreement because he wanted my client to apologize in writing to his client, as a precondition to signing the compromise.
Otherwise, he said he will pursue with the legal proceedings and cross examine my client.
I manifested before the court that I am at a loss in convincing my client into signing an apology as a precondition to a compromise.
My client was asking me how a "sorry letter" fits in a compromise arrangement when a compromise is supposed to settle things amicably, without having to ascetain who was at fault.
The counsel for the insurance agent was struggling to respond, in the end justifying his condition by saying that since my client was a man, and his client a woman, it is only fitting that the man apologize to the woman.
This elicited a reaction from the counsel for the insurance company who manifested in jest by saying that since his client is neither a man nor a woman, he would dispense with the apologies, generating laughter from the audience.

Monday, September 10, 2007

Court blunders: photocopy a faithful reproduction

Sometimes I commit blunders in courtroom proceedings.
This is a normal thing.
I noticed a blunder I committed while reviewing the transcripts of stenographic notes (TSN) of the proceedings in a case I am handling.
Here is a portion of the TSN:
Atty. Dejaresco, please go over the document and manifest if the xerox copy is a faithful reproduction of the original. So that we can mark the xerox copy in lieu of the original.
Atty Djearesco:
We manifest your honor, that the photocopy appears to be a faithful reproduction of the original."
"The photocopy is a faithful reproduction of the original"?
In what instance would it occur that a photocopy is not a faithful reproduction of the original?
There could be such an instance, but it would defeat the purpose of photocopying, right?
The photocopy was invented for purposes of "faithful reproduction" of originals, so that orginal copies of documents can be multiplied in as many copies, to save time and effort and money.
The photocopier was invented so that one need not make many originals.
Therefore, I think the proper way of saying it is that:
"The identical copy your honor is a faithful reproduction of the original."
To say that the "photocopy is a faithful copy of the original", is a redundancy, or, stating the obvious.

Thursday, September 06, 2007

Right of representation among grandchildren

Here's a legal query from my client.
She is a legitimate child. She has illegitimate brothers and sisters.
Her father who was also a legitimate child (of her grandparents of course), just died recently.
Her late grandfather's estate, has yet to be settled.
She asks, can she inherit from her grandfather?
What about her illegitimate brothers and sisters, can they inherit from their grandfather's esate like her too?
Answer: She can inherit by right of representation, based on Artilce 981 of the civil code.
The law says, "Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation."
But her illegitimate brothers and sisters cannot inherit, based on Article 992.
Article 992 says, "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother."
Thus, her illegitimate brothers and sisters cannot inherit from her grandfather (who is a relative of her father)

Tuesday, September 04, 2007

Silliman recipient of Salonga's RM P2M bounty

Silliman University will be one of three institutions that will receive the US$50,000 (P2.25 million) monetary reward given to former Senate President Jovito R. Salonga, who is one of this year's awardee of the prestigious Ramon Magsaysay Award.
Last August 31, 2007, Salonga was one of the recipients of the 2007 Ramon Magsaysay Award for government service.
In his repsonse during the presentation held at the Cultural Center of the Philippines, Salonga mentioned Silliman University which will be a beneficiary of the US$50,000 reward.
A law center has been established in Silliman University named after the former senator presidnet, the Jovito R. Salonga law center which is devoted to conduct of law research and legal aid programs for the poor who cannot afford lawyers' fees.
In his response Salonga said, "I plan to give the cash reward to three entities...the third is an educational institution in Dumaguete City---Silliman University--- where my elder brother Benjamin Salonga, now deceased, finished in BS Chemistry. He passed the Civil Serve Examination and was employed in the Bureau of Science. I has been a self-supporting student during my years of basic law studies in the University of the Philippines, but my brother Ben supported me so I could devote more time to reach my senior year in law school and ultimaely serve our weak, marginalized people who needed legal help."
The other two recipients of the monetary reward are the two foundations which Salonga founded namely the Kilosbayan a peoples' organization, and Bantay Katarungan.