Wednesday, April 29, 2009

PPI national conference

I gave an update today on judicial and legal notices during the three-day national conference of the Philippine Press Institute at the Diamond Hotel.
Also speaking on the third day was Isagani Yambot Publisher of the Philippine Daily Inquirer. He gave an update on the status of the right-of-reply bill pending in the House of Representatives. Also present were veteran newspapermen Johnny Mercado, who writes in the Philippine Daily Inquirer, and many other newspapers including the Negros Chronicle, and Jake Macasaet, publisher of Malaya and Chair of the PPI

Saturday, April 25, 2009

Four Seasons Bangkok

There is a modest and convenient place to stay for many Filipinos visting Bangkok.
This is the Four Seasons International House located in Soi Petchburi 19, Petchburi Road.
Once, during a brief visit to Bangkok with the family, we sought recommendation.
Our friend Nikki said there is a place where many Filipinos frequent and stay when in Bangkok.
We went to the internet and looked for Four Seasons and we were pleseantly surprised to get a very affordable, discounted price, perhaps because it was not peak time.

I think we only got it at an equivalent (in pesos) of P2,400 per night when we booked in an internet hotel booking agency.
From the airport, which is around forty kilometers outside Bangkok, the taxi fare is about 600 Baht.
Four Seasons International House is located near a commercial center.
Taxis, the metro rail,and even Tuk-tuks are accessible.

If you stay at Four Seasons there is a free half-day tour in one tourist destination of our choice within Bangkok.
We availed of this half-day complimentary tour and selected the Grand Palace.
We enjoyed the free tour, accompanied by guide who took our pictures.
The necessary amenties are available at the Four Seasons.
There is WiFi connectivity, by buying consummable internet cards at the reception.
Bufffet breakfast is free.
We noticed there were many Filipinos staying, and there were Filipino meals served also.
Maybe you can check Four Seasons in one of your Bagkok trips.
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Friday, April 24, 2009

The Mandatory Legal Aid

A Supreme Court directive is causing a stir among practicing lawyers all over the country.
I am referring to Bar Matter 2012, approved by the Supreme Court last February 10, 2009.
The Supreme Court has directed that starting July, all court-practicing lawyers--the litigators---shall render mandatory legal aid to the poor, free of charge.
The directive mandates that lawyers must provide at least sixty hours per year(five hours a month) of litigation assistance.
Failure to render such service would result in dire consequences like supsension from the practice of law.
The voice of the gods at mount olympus have been met with opposition from practicing lawyers.
Some have said this is a form of legalized slavery.
Involuntary servitude, say others.
On my part, I have a different take on this.
My personal view is that being a lawyer, it is part of our system to assist those who canot afford.
We should balance things out between the poor and the rich, in terms of access to the courts.
True, there is justice for the rich, and justice for the the poor.
But we should not be stopped from working towards having equal justice for all, whether rich or poor.
So fundamentally, I do not oppose the directive of the Supreme Court.
Perhaps, there can be some modifications here and there, as the directive seems to be shockingly radical to many.
Anyway, a lawyer-friend, May Saga-Aguilar, has written a piece giving her reason why she is against Bar Matter 2012.
She is the former May Saga, fellow-announcer of DYEM-FM, and active student leader during our school days at Silliman.
She presently litigates in Cebu, after years of corporate lawyering in Manila.
She published her piece in her Facebook account.
She permitted me to re-publish. Here it is:

WITH ALL DUE RESPECT. I am in trial practice not for the money, but for the love of litigation, because if truth be told, there is no money in pure trial practice.

I worked for Aboitiz and Company, Inc. for five years, then for SGV and Co., Inc. for almost two years. During those years, I was receiving salary higher than those of most people my age. But I was unhappy because I was not allowed to litigate. So I gave up my handsome pay, and in the next few years, I would wonder if my decision was right.

Being in trial practice has not been financially easy. I pay for the rental of my own office. I pay for the salary and other benefits of my four staff. I pay for overhead expenses like electricity and telephone bills.

My office spends non-revenue time preparing my clients’ monthly Statements of Account, and non-revenue time making follow ups for payment. And then we are lucky if we get paid 70% of our billings for the month.

It is very common for clients to ask me to give them “discounts” on their bills. It is even more common for prospective clients to ask me for a reduction of my proposed fees prior to engagement.

Honestly, considering that I have three children to support, I am amazed that I have lasted eight years on my own. If you ask me if I have become rich in those eight years, the answer is no, and my passbooks will attest to that. I have not been able to buy a house, and I have not been able to buy a new car. I still drive the same second hand car I acquired six years ago.

People think that all lawyers are rich. They are sorely mistaken. The rich lawyers are the ones who work for big companies. Or those who work for big law firms. Or those who are engaged in tax consultancy. Or those who are into real property deals. The true-blue pure trial lawyers who practice on their own literally live on a day-to-day basis.

What fees does a trial lawyer expect from a case, and I mean the usual, normal case? Acceptance and appearance fees. Usually, time charges or hourly fees are absorbed by the acceptance fee – yes, you guessed it right – upon request of the prospective client. Contingent fee is usually done away with. Most cases simply do not give the lawyer enough basis to ask for this fee.

The acceptance fee is paid at the inception of the case. The appearance fees are paid as the case progresses. In other words, after the case is filed in court, the trial lawyer cannot expect any more income from the case other than appearance fees.

How many new cases does an average trial lawyer file in a month? Or to put it bluntly, how many new cases in a month can he afford to file or handle effectively?

There are exceptional trial lawyers who seem to have no problem attracting new clients. But unfortunately, there are even more trial lawyers who are not as lucky, and the only reason they continue to do litigation work is because of their love for it.

And here is the irony. While trial lawyers are not really earning that well, they are expected to look like they are. They must be well-dressed. They must at least drive a car. Having a house of their own is a plus. A trial lawyer who does not exhibit the form required will be thought of as unsuccessful and probably not good in trial practice. He will therefore attract less clients, and will therefore have less income, making him even more unable to comply with the form. And the evil cycle goes on and on.

And now trial lawyers are required to render 60 hours of FREE legal services a year. If the trial lawyer is normally paid P2,000.00 per hour, that is P120,000.00 lost income in one year, on top of the non-revenue hours spent on billings, administrative work, MCLE-related activities, or simply doing nothing because there is no case to handle. And if the trial lawyer earns an average net income of, say, P50,000.00 a month, or P600,000.00 a year, the amount lost to free legal services is about 20% of the his annual income.

I personally believe this is too stiff. This is punishing lawyers for being trial lawyers. This is tantamount to murder of the trial practice.

When I passed the bar examinations, and when I took my oath as a lawyer, I did not swear to render FREE legal services. Indeed, it is not the obligation of the Integrated Bar of the Philippines as a group, or of the lawyers in their personal capacities, to provide FREE legal services. This is the obligation of the Government. Why shift the burden on the trial lawyers?

Lawyers and lawyer groups have been rendering free legal services on their own. This is being done out of generosity, not out of obligation. This act deserves commendation and reward. I am disheartened that the thought of punishment even came into the picture.

Why does the rendering of free legal services have to be mandatory? Why should anyone be punished for not doing something that is not his obligation in the first place? Is it not more in keeping with justice and reason to ENCOURAGE lawyers to render free legal services, rather than to PUNISH them if they fail to do so?

Why don’t we have a program which will give lawyers CREDIT POINTS for rendering free legal services, credit points which they can use to their benefit? For instance, a lawyer who renders 10 free legal assistance hours in one year will be entitled to P100.00 discount on his annual IBP membership dues. Or, he can convert it into a coupon which he can use like money to pay for products and services purchased from selected stores and establishments.

I am sure there are one million ways of encouraging lawyers to render FREE legal services. But I am also very sure that making it mandatory is not one of them. Yes, they will comply, because they are lawyers and they have been wired to obey. But deep in their hearts they will feel that they have been shortchanged and subjected to injustice. And if justice is what we are all fighting for, then this is probably the biggest irony that the legal profession will create in this generation.

Tuesday, April 21, 2009

BP 22: Sufficiency of notice of dishonor

I have to journal my cross examination this afternoon in a BP 22 case (bouncing checks law), just so I can remember.
My cross examination pertains to a demand letter in the bouncing checks law.
I am counsel for the accused.
The complainant indeed, had a demand letter.
The complainant testified that the said demand letter was duly received by my client, the accused.
The complainant testified there was a handriwing below the demand letter indicating receipt by my client, as well as the date of receipt, February 4, 2003.
After saying this, I asked the complainant when the check was dishonored.
The complainant looked at the back of the check and saw the check was dishonored March 20, 2003.
So, I established that the receipt of the demand letter was before the check was presented for payment, as well as before the dishonor.
Is there sufficient notice of dishonor, as to convict my client?

Thursday, April 16, 2009

Meet Susan Boyle

If you haven't heard the extra-ordinarily surprising story of Susan Boyle, you have missed the biggest shock that happened in the T.V. show "Britain's Got Talent".
Then she conquered the Internet by storm.
Nobody expected such great talent. She was laughed at, extremely under-estimated, pre-maturely dismissed as an over-aged dreamer who has long missed the bus to stardom.
Until she sang her dream out.
And boy, does Britain have talent!
I remember what Forrest Gump said: "Life's a box of chocolates"
This one'll make you drop a tear or two....

Twelve million hits on You Tube! My God!


I dreamed a dream in time gone by
When hope was high,
And life worth living
I dreamed that love would never die
I dreamed that God would be forgiving.

Then I was young and unafraid
When dreams were made and used,
And wasted
There was no ransom to be paid
No song unsung,
No wine untasted.

But the tigers come at night
With their voices soft as thunder
As they tear your hopes apart
As they turn your dreams to shame.

And still I dream he'll come to me
And we will live our lives together
But there are dreams that cannot be
And there are storms
We cannot weather...

I had a dream my life would be
So different from this hell I'm living
So different now from what it seems
Now life has killed
The dream I dreamed.

Obstruction of justice

It looks to me like the ugly face of politics is slowly creeping into the tragedy that has befallen ABS-CBN broadcaster Ted Failon.
Early this week, the wife of Ted Failon, Trinidad Etong, was discovered having sustained a gunshot wound in the head.
Subsequently, she was described as “brain dead”. She later died.
Before her death, it could not be known whether it was an attempted suicide or attempted homicide.
It must be remembered that Ted Failon (real name Mario Teodoro Etong) is not only a high profile broadcaster.
Just last week, he was included in the short list of probable senatorial contenders of the opposition.
And he just might win.
As a broadcaster, it could not be avoided that Ted Failon would step on the toes of very very big and powerful persons.
Just recently, Mr. Failon lambasted in his radio commentary the Quecon City police involved in that rubout in the middle of EDSA that way capture by an ABS CBN cameraman.
So it is not hard to understand that the police, perhaps under instructions from higher-ups, are treating Mr. Failon more like a criminal than a pained husband.
It would not be surprising if big-time politicos would, at this early time, already discredit Mr. Failon (i.e. prematurely placing him in the immigration watch list) in order to dislodge him right away from among the top senatorial contenders
What the police now are brandishing and invoking against Ted Failon,his relatives and employees, is a martial law decree called “obstruction of justice” under Presidential Decree No. 1829.
Let’s talk about this law.
PD 1829 is a penal law that punishes obstruction in the apprehension and prosecution of criminal offenders.
What is immediately striking about this law, is that obstruction of justice” will come into play, if and only if, there is a crime committed.
Just look at the whereas clause: “whereas to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, it is necessary to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders
It is very clear that there can only be obstruction of justice if there is a crime involved.
Section 1 states: Punishment “shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects, and the investigation and prosecution of criminal cases
Again, the law is very clear that in obstruction of justice, there must be---at the very least---a crime involved.
Secondly, to be liable for obstruction of justice, the obstruction must be done “knowingly or willfully
Let us analyze the actions of the over-zealous policemen in arresting people for “obstruction of justice” in the Ted Failon episode.
The police began arresting people on the pre-text of obstruction of justice when there is yet no clarity (until now) that a crime has been committed.
The policemen were putting the cart before the horse.
It has not been established yet whether what happened was an [attempted] suicide or homicide.
Worse, as investigation progressed, the angle of attempted homicide rapidly diminished, while the theory of attempted suicide became a more logical scenario.
Yet even as the angle of [attempted] suicide became more credible, police began arresting people for "obstruction of justice".
My question is: How can one be arrested for obstruction of justice without any reasonable basis to believe, nay establish, that a crime indeed, has been committed?
The blunder of the police here is the fact that they arrested persons even if no crime is clearly in the horizon.
By the way, let me just emphasize that there is no such crime in our penal books called “attempted suicide”.
And criminal law book author Luis B. Reyes aptly reasons why:
A person who attempts at suicide is not criminally liable, because society has considered a person who attempts to kill himself as an unfortunate being, a wretched person more deserving of pity rather than of penalty.
What the police are doing is highly unnatural, besides being illegal.
(They ought to be held liable for illegal arrest).
This is the first time I encountered a situation where the police arrests people for obstruction of justice, without first determining whether indeed, the incident involved was a crime, in the first place.
Normally, the charges of obstruction of justice comes way much later after the prosecution of the main crime.
Police ate desert before the main course.
Worse, the police were arresting relatives (in the hospital) who were in the midst of suffering unbearable tragedy and anguish over their kin who had tried to take her own life.
Worst, the arrests were made deliberately at a time when the courts were closed to ensure that the arrested will sleep-over in a jail cell.
Of course, it is still possible that indeed, what happened was a crime (homicide).
But to arrest people for obstruction of justice before reasonably establishing the commission of a crime, to me, is just plain absurdity, if not stupidity.
This is yet another example of how the state can abuse the rights of individuals through the calculated, intentional mis-use of our penal laws.
And that’s a bigger tragedy.

Thursday, April 09, 2009

Easter reflections: Celebrate life

Happy Easter!
For many of us in the Christian world, Easter is a celebration of life.
On Easter, Christians commemorate the resurrection of the Lord Jesus.
Easter marks the defeat of death, and the victory of life.
In my personal reflections of Easter, I hope continually, that life, precious as it is, will continually be celebrated and upheld.
Those who aim to defeat life should be condemned.
Unfortunately, reality paints a different picture.
It seems there are quarters who aim to defeat life, instead of upholding it.
For instance in Davao City, the mayor there appears to be on the defensive in the wake of a string of condemnations by human rights institutions against the so-called Davao Death Squads (DDS).
Nobody has directly accused the Davao mayor of being behind these death squads in Davao, which has been tagged as responsible for more than eight hundred extrajudicial killings in Davao since 1998.
There are now unavoidable calls for a thorough investigation into these mysterious killings in Davao.
Leading the calls is the Commission on Human Rights, and even international human rights groups like the New York-based Human Rigths Watch.
Even before Holy Week, the Roman Catholic church urged prayers, and enlightenment against the continued extrajudicial killings, which aim to defeat life.
Sadly, there are sectors who condone extrajudicial killings.
Even politicians see salvaging as a convenient way of complying with their legal mandate to "maintain peace and order."
It is not surprising that local politicians---for their political and personal reasons---turn a blind eye to summary executions.
Dumaguete City is not far behind Davao City, when it comes to the proliferation of extrajudicial killings.
The Commission on Human Rights should also investigate the summary killings in Dumaguete City, if only to do justice to those who have been summarily killed.
There is no need to stress that extrajudicial killings, summary executions, salvagings---no matter how they are called---are illegal.
The legality of summary executions is not debatable.
It should not have any room in a civilized society.
But why do local politicians turn blind and deaf when it comes to summary executions?
The reason is obvious.
It covers their inability and incompetence to maintain peace and order in a lawful manner.
It is to the politicians' political (and personal) advantage to "see-no-evil and hear-no-evil" when it comes to extrajudicial killings.
Their principle is: If someone else sweeps the streets of dirt, why stop it?
The big problem is that salvagings, summary executions always target the poor.
Haven't you noticed?
These so-called drug pushers, criminals (already pre-judged as such) made targets of summary killings, always belong to the economically disadvantaged.
Many of them are people driven or forced to illegal activities because government has failed to provide them decent jobs to feed their families.
"Kapit sa patalim", in other words.
Have you ever heard of a millionaire drug lord being targeted for summary killing?
In the city of Manila, those salvaged are small-time snatchers, petty thieves.
But the big-time, white-collar criminals are never targeted.
Why is that so?
Those involved in big-time swindling of hard-earned peoples' money invested in educational, pension plans are never targets of summary killings.
Those corrupt government officials, who bleed our public coffers dry by exacting fat commissions from government contracts, are spared.
Government officials who incur millions of pesos of unliquidated cash advances are never targets of summary executions.
Instead, they are heralded as "honorable".
My opposition to summary killings is not only based on legalities.
For that would be a no-brainer.
My opposition is based on social considerations.
Extrajudicialy killings only manifest and magnify our social inequities.
I oppose summary killings because it is always aimed at the poor.
I condemn summary killings because they aim to defeat life.
As we mark Easter, please pray for the continued celebration of life, like we celebrate the resurrection of Jesus Christ.

Friday, April 03, 2009

Every Breath You Take The Police

There were songs in my youth that kept me alive.
This is one of those songs--back in the eighties.
Listening to this song keeps you alive...with every breath you take.

Wednesday, April 01, 2009

Young SU alumna heads RP's Hong Kong Consulate

One of the youngest “head-of-post” among Philippine government stations abroad, Kira Danganan-Azucena, is an alumna of Silliman University.
Kira Danganan, as she was known in Silliman, is acting consul general of the Philippine consulate in Hong Kong.
Still in her mid-thirties, Kira is already holds the position of Deputy Consul General .
She weathered a hailstorm of controversy this week when a Hong Kong magazine columnist wrote derogatory article about Filipinos being a “nation of servants.”
Credit has to go to Kira Danganan for successfully handling the controversy.
She diffused a simmering stream of outbursts from many agitated Filipinos that could have potentially disturbed the diplomatic relations between the Philippines and Hong Kong.
It was her first real test on delicate diplomacy as head-of-post.
I think she passed with flying colors.
It was a feat for Ms. Danganan because the incident resulted in the magazine and the writer extending an apology.
Hopefully the issue should end there.
No need to escalate the tensions because the Philippines and Hong Kong have long enjoyed a symbiotic partnership that has benefited our people and theirs.
I had a meeting with Ms. Kira Danganan at the Philippine consulate the 14th floor of the United Center Building at Queensway Hong Kong early this week.
Also present was Vice consul Val T. Roque.
I had wanted to make a follow through with Ms. Danganan about a plan of Philippine-based lawyers extending free legal assistance to overseas Filipino workers in Hong Kong.
Expectedly, the problem of Filipino workers overseas deals with the huge social costs of physical absence from the family.
The numerous legal problems are those that deal with family and domestic affairs, the consul officials told me.
What pre-occupied the meeting, however, was the “civil disturbance” caused by Chip Tsao, the Hong Kong writer that drove consul officials in a continued state of annoyance.
It was the first time I heard of the incident, and Kira said the news is all over and many Filipinos are fuming.
She handed me a copy of the controversial article published on March 27.
“We’re going to make a statement,” Kira said.
The statement goes:

It is unfortunate that such an article could be published in a city that prides itself as a progressive society, that has achieved milestones in multicultural harmony, and whose very character is defined by the presence of people from all corners of the globe.
The image of racism that Mr. Tsao portrayed in his column has demeaned the members of his own household and the more than 127,000 Filipinos working in Hong Kong as household service workers. Their contributions to Hong Kong's achievements are undeniable. Their work is a noble and dignified one.
While Mr. Tsao may have intended his column to be a piece of satire, he has miserably miscalculated in this endeavour. Fortunately, his views are not shared by the larger society in Hong Kong.
Mr. Tsao and Asia City Publishing Group owe the Filipino community in Hong Kong a formal apology for the grave disrespect they have shown.
Despite this unfortunate incident, the long-standing friendship and mutual respect being enjoyed by the Filipino community and the Hong Kong society will remain.