Saturday, October 24, 2009

Defying court orders is bad

Recently, I wrote about a Supreme Court directive to the Ombudsman to file formal criminal charges in the Sandiganbayan against Valencia Mayor Rodolfo V. Gonzales, Jr., and his treasurer, Rolando Obanana and two private contractors.
This came after the Supreme Court ruled there is sufficient basis to hold Gonzales and company for trial for violating the anti graft and corrupt practices act.
They are to be charged because Gonzales ordered the release of public funds to a private contractor despite a previous attachment order issued by the regional trial court prohibiting such release.
Subsequently, comments were raised defending Gonzales.
Defenders of Mayor Gonzales argue that it was a damn-if-you-do-damn-if-you-don’t situation.
They said that Gonzales would have been sued either way, anyway.
If Gonzales did not release the public funds to the contractor, he would have been sued by the contractor for contractual breach, it was argued.
If Gonzales released the public funds to the contractor, he was sued for graft.
So either way, Gonzales faced lawsuits, defenders said.
This is such a tricky argument.
First. Under the rules of court, if there is an attachment order issued by the court against a certain property, there are legal ways to discharge this attachment.
The person against whom the attachment is issued, can file what is called counter-attachment bond.
The purpose of this counter attachment bond is to provide a security, to ensure that the judgment in favor of the person seeking the attachment, is satisfied.
The question now is: Did Gonzales file a counter-attachment bond to discharge the attachment? (Its not in the Supreme Court decision) If not, why not?
Why did he take the law into his own hands, and proceeded to defy the court order by releasing public funds to a private contractor despite a court prohibition?
There is no excuse to defy a lawful court order.
The real issue here is the observance of the rule of law.
If we advocate defiance of court orders, as Gonzales did, there will be chaos and anarchy in society.
Second. Why should Gonzales be afraid of a civil suit for contractual breach? Gonzales has a complete defense against a civil suit for breach of contract.
His Exhibit “1” would have been the court attachment order.
In other words, Gonzales’ ready defense is that, he couldn’t pay the contractor because he was prevented by a lawful order of the court.
Third. Which would Gonzales prefer to face, a mere civil suit for contractual breach (of which he has a ready defense), or a criminal action for graft?
Isn’t the answer clear?
Fourth. If Gonzales was not agreeable with the court attachment order, did he question the attachment order in a higher court by certiorari?
If not, why not?
He could even have asked for a T.R.O./injunction in the higher court to prevent the attachment order from being enforced. Was this done?
Fifth. By defying a lawful court order, Gonzales' behavior is contumacious.
He can be held in contempt of court for disobeying a lawful court order.
Sixth. Gonzales cannot claim good faith by alleging that he was merely following an opinion by the provincial attorney.
Which should be followed: a mere opinion by a provincial attorney, or a court order?
Is the answer still debatable, or is the answer clear?
So why did he insist in paying the private contractor, in the face of a court prohibition?
What could be the reason?
That is a 64-dollar question.
This (damn-if-you-do-damn-if-you-don’t) “dilemma-defense” being peddled to excuse Gonzales’ defiance of a court attachment order, does not hold water.
It is even insulting to the mind.
Elected officials should lead by example as followers---not violators---of court orders.
Elected public officials, should lead in the observance of the rule of law.
For if they don't, what's the use of electing them into office?

Sunday, October 18, 2009

Odol Gonzales Jr. faces criminal raps in Sandiganbayan

Sayang. Bad timing.
Just as the elections are up and coming, the venerable and honorable Valencia mayor Rodolfo “Odol” V. Gonzales, Jr. will be facing criminal charges before the Sandiganbayan for graft and corruption.
This came through a now-irreversible order of the Supreme Court.
Together with Gonzales, also facing the same criminal raps are his municipal treasurer Rolando B. Obanana and two private contractors Alex and Dominador Abelido.

The nature of the criminal raps

The criminal charges against Gonzales and company, stems from his release of what is called “retention money” (peoples’ money) to a private contractor, even if this was prohibited by the regional trial court, through an order called a writ of preliminary attachment.
Under the anti-graft and corrupt practices act, the penalty for corruption is only ten years maximum imprisonment, and perpetual disqualification from public office.
Procedurally, after the criminal information is filed, a warrant of arrest would likely be issued.
But not to worry.
This crime is bailable.
Just as we hear that the promising Valencia mayor, is being talked about to be a vice-gubernatorial candidate in next years elections, he now has this impending criminal charge in the graft court, the Sandiganbayan.
But we still hope, that whoever the gubernatorial candidate picking mayor Gonzales as running–mate will be, would overlook the fact that he will be having a vice-gubernatorial partner with a pending criminal case before the Sandiganbayan for graft and corruption.
Hopefully, voters would not see mayor Gonzales as “political baggage”, with the pendency of his corruption charge.

The parties to the case

What is this criminal case involving Rodolfo “Odol” Gonzales Jr.?
The facts of the case can be gathered from the Supreme Court website in this address:
The case (G.R. No. 169338) is entitled New Bian Yek Commercial, Inc. versus Office of the Ombudsman (Visayas), Rodolfo V. Gonzales Jr., Rolando B. Obanana (municipal treasurer of Valencia) and Erwin Vergara, the provincial attorney, Alex and Domindor Abelido, the private contractors.
This was decided last January 20, 2009.
A motion for reconsideration was filed, but was denied in March.

The facts of the case

The writer of the decision, Justice Renato Corona, narrated the facts like a news item.
Very simple.
On August 13, 2000, the municipality of Valencia Negros Oriental awarded to Legacy Construction (Legacy), a corporation owned by respondents Alex Abelido and Dominador Abelido, the P14.6-million, 300-day-contract for the improvement of its waterworks system (Valencia project).
In connection with the Valencia project, Legacy, the contractor , through its project engineer, Jaime Lu, bought from petitioner New Bian Yek Commercial, Inc. pipes worth P2.8-million.
As payment for the pipes, Lu issued two personal checks to Bian Yek, which bounced or were dishonored.
Because Legacy had already received a significant portion of the contract price from the municipality, Bian Yek demanded payment for the pipes (amounting to P1,766,950) on December 11, 2002.
Legacy, however, ignored petitioner’s demand.
On April 15, 2002, Bian Yek requested mayor Rodolfo V. Gonzales, Jr., to pay for Legacy’s obligation using the retention money withheld by the municipality for the Valencia project.
Unsure (kuno) of what to do, Gonzales referred the matter to Negros Oriental provincial attorney, respondent Erwin B. Vergara.
On January 29, 2003, Bian Yek filed a complaint for sum of money with a prayer for the issuance of a writ of preliminary attachment against Legacy, Alex Abelido, Lu and the municipality of Valencia in the Regional Trial Court (RTC) of Dumaguete City, Branch 44.
On February 4, 2003, Vergara issued an opinion to Gonzales’ query favoring the release of the retention money by the municipality to Legacy.
Meanwhile, after conducting the requisite hearing, the RTC found that Alex Abelido had left the country.
There was a balance of the contract price (amounting to P3 million) which was the only fund Bian Yek could run after to recover Legacy’s liability.
Thus, in its February 7, 2003 order, the RTC ordered the issuance of a writ of preliminary attachment.
The court prohibited Gonzales or his agents or representatives from releasing any payment (including the retention money) to Legacy.

But what did Gonzles do?

Despite the prohibition by the court, Gonzales adopted Vergara’s recommendation and instructed the municipal treasurer Rolando Obañana, to release the retention money to Legacy on March 12, 2003.
This prompted Bian Yek, on November 19, 2004, to file a criminal complaint against mayor Gonzales, his treasurer Obanana, and the provincial attorney Erwin Vergara, and the contractor in the Office of the Ombudsman.
Bian Yek alleged that Gonzales, Vergara and Obañana allegedly violated Section 3(e) of the Anti-Graft and Corrupt Practices Act (RA 3019) when they released the retention money to Legacy in spite of the February 11, 2003 writ of preliminary attachment
It was alleged that they conspired with the Abelidos in depriving Bian Yek of payment for Legacy’s just obligation.

Ombudsman dismissed complaint

Surprisingly, on March 10, 2005, the Ombudsman dismissed the complaint against Gonzales and others because they were acting in good faith in following the opinion of the provincial attorney Vergara.
So Bian Yek went to the Supreme Court to question the Ombudsman dismissal.

Ruling of the court

The Supreme Court reversed the dismissal by the Ombudsman.
Contrary to the ombudsman’s view, the Supreme Court said there is basis to believe that mayor Gonzales and treasurer Obanana unduly injured Bian Yek when they released the retention money despite a prohibition by the regional trial court.
In effect, by releasing the retention money even with the prohibition by the regional trial court, Gonzales and Obanana gave unwarranted benefits to the contractor Legacy and the owner Abelido.

Ombudsman: grave abuse of discretion

The ombudsman committed a grave abuse of its discretion in dismissing the complaint of Bian Yek, the Supreme Court ruled.
As a result mayor Rodolfo Gonzales Jr, treasurer Obanana, and the contractors Alex and Dominador Abelido will have to face corruption charges.
The provincial attorney was absolved, because he rendered his opinion favoring the release of the retention money, before the prohibition for its release issued by the regional trial court

The accused triumvirate ---the mayor, the treasurer and the contractors---are entitled to be presumed innocent until proven otherwise.
In the meantime, Gonzales, as an accused, can still run for public office while the criminal case is pending before the Sandiganbayan.
We wish the accused well, and the best of luck, and the best of health.
They will need it.

Saturday, October 17, 2009

Past bar questions: Things to note

This week I had occassion to read the questions that came out in the last bar examinations held in September until October.
For future bar examinees, there is something very important to be learned in studying or analyzing this year’s bar examination questions.
It is very important for future bar examinees to get hold of the latest decisions of the Supreme Court.
I saw some bar questions, whose answers can readily be provided by the very recent decisions of the high court.
This is where bar operations become handy.
The main task of bar operations is to try to make “analyzed guesses” as to possible questions that may come out in the bar.
I read for instance, the second bar question in political law.
The answer to the second bar question/s in political law is answered in the case of Rep. Jocelyn S. Limkaichong which was decided by the Supreme Court last April 1, 2009 [G.R. Nos. 1788831-32].
The second bar question in political law involved both constitutional law and election law.
To recall, there were a series of petitions seeking to disqualify Josy Limkaichong on account of her citizenship.
Notably, a sideshow, which became the main show of the Limkaichong case was the suspension of a recently retired Supreme Court justice from the practice of law.
The Limkaichong case became bar question no. 2 in political law.
The situational (bar) question (with sub-questions) goes:
“Despite lingering questions about his Filipino citizenship and
his one-year residence in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by law. His
opponent, Vito, hires you as lawyer to contest Gabriel’s candidacy.”
Question [A]: [a] Before election day, what action or actions will you institute against Gabriel, and before which court, commission or tribunal will you file such action/s? Reasons.

Even if the bar examinee forgot the election law provision and procedure, if the examinee read the Limkaichong case, the examinee would at least be able to answer by stating that the action to be taken is a petition for disqualification before the Comelec.
This was what Josy’s opponents did prior to the 2007 elections.
Question [c]: “If the action/s instituted should be dismissed with finality before the election, and Gabriel assumes office after being
proclaimed the winner in the election, can the issue of his
candidacy and/or citizenship and residence still be questioned? If
so, what action or actions may be filed and where? If not, why
Again this question can be answered with the guidance of the Limkaichong case.
The suggested answer would be 'yes'.
The issue of Gabriel’s candidacy , and/or citizenship and residence can still be questioned.
The action to be filed would be either be an election protest or quo warranto before the House of Representative Electoral Tribunal.
This should be the short and simple answer to the particular bar question.
If the bar examinee wants to beautify his answer, he can of course state that under Section 17 Article VI of the Constitution, the House Electoral Tribunal (HRET) shall be the sole judge of all contests relating to the election, returns, qualifications of their respective members.
In fact, this is the express ruling by the Supreme Court in the Limkaichong case.
The Court ruled: “after the proclamation of the winning candidate in the congressional elections, the remedy of those who may assail one’s eligibility/ineligibility/qualification/disqualification is to file before the HRET a petition for an election protest, or a petition for quo warranto”Also in the Supreme Court decision, the Court emphasized that the issue of citizenship is a 'continuing requirement'.
This means that a congressman must be a natural-born citizen not only during his election, but continues until the end of his tenure, the court ruled.
“Being a continuing requirement, one who assails a member's citizenship or lack of it may still question the same at any time”, the court added.
By the way the Supreme Court has ruled with finality that Josy Limkaichong shall continue to sit as representative of the first district of Negros Oriental, notwithstanding any pendency of HRET proceedings challenging her citizenship.
The Supreme Court said: “The unseating of a Member of the House of Representatives should be exercised with great caution and after the proper proceedings for the ouster has been validly completed.”“For to arbitrarily unseat someone, who obtained the highest number of votes in the elections, and during the pendency of the proceedings determining one’s qualification or disqualification, would amount to disenfranchising the electorate in whom sovereignty resides,” the court said.
Thus, if there is any thing to be learned from reviewing these bar questions, it is the importance of keeping track of the latest rulings of the Supreme Court.
For all you know, the questions may just be derived from these recent rulings.

Wednesday, October 14, 2009

Our OFWs legal woes

I had lunch with Karl B. Miranda, the Assistant Solicitor General, and our conversation ranged from one topic to another.
Karl, was my legislative supervisor when I worked full time in government in the office of Senator Nene Pimentel in the nineties.
Karl, a graduate from the Harvard Kennedy School of government is a passionate public servant.
We were guided under the leadership of Nene Pimentel, who we all look up to when it comes to tireless, dedicated public service.
Anyway, our lunch ventured into the plight of overseas Filipino workers.
You might have heard of the names Flor Contemplacion, and Sarah Balabagan.
Flor Contemplacion, was the Filipina OFW who was executed by hanging in Singapore for "supposed" murder, during the Ramos Administration.
Sarah Balabagan was an under-aged Filipina who killed her employer who raped her in the United Arab Emirates.
Their Filipino government lawyer during their time of legal crisis was Karl Miranda.
Karl therefore, knows a lot about the legal woes of our bothers and sisters working in other countries, many in less acceptable conditions.
Karl said the government is hard put in extending legal assistance to many OFWs who get into trouble with the laws of the foreign country.
I was shocked when he told me that the P100-million budget for legal assistance to OFWs was “wiped out” handling just four cases involving Filipinos.
Virtually, when Filipinos get into legal trouble abroad, they are on their own.
The government simply does not have enough funds to provide each legally-distressed OFW with legal assistance.
Remember that in a foreign country, Filipino lawyers cannot practice law.
The Philippine government can only hire the “local lawyers” in the foreign country.
The Philippine government is left leaning upon the shoulders of these “local lawyers,” who are the ones familiar with the laws of their own country.
In the course of our conversation, we came up with an idea on how to effect long term legal help to Filipino OFWs.
Our OFWs are the true heroes of our nation.
Because of their billion dollar remittances annually, the Philippines is kept afloat.
Yet, OFWs do not receive the assistance they deserve when they get into trouble.
One suggestion we came up with is for our government to make an “investment” where we will send and fund Filipino students to study law in those countries where we have the most number of Filipinos.
Let’s take for example, Hongkong, where we have one of the largest population of OFWs, many working as domestic helpers.
Instead of paying Hongkong lawyers to take up the cases of Filipino OFWs, why don’t we send young Filipinos scholars to law schools in Hongkong?
Just like the Philippine Military Academy, these public-funded legal scholars will be made to sign a contract where they will have to serve at least eight years taking up cases of OFWs for free in the country where they are able to practice law.
That would be their way of “paying back” the people’s money paid for their foreign legal education.
Of course there could be stumbling blocks.
There may be countries, which only allow their own nationals to practice law, just like the Philippines.
In the U.S., one can practice law even if he/she is not a U.S. citizen, as long as they pass the state bar exams.
We suggest that there be a government-to-government mutual arrangement where exceptions can be made.
This can be made under an executive agreement or treaty.
Another stumbling block is the language barrier.
The laws of another country may not be in English.
The legal proceedings may not be in English, like perhaps, China.
Our suggestion is that if learning the local language is imperative, then our government should invest in teaching our international legal scholars the foreign language, aside from studying law.
My point is, let us do for the OFWs all that it takes to accord them legal assistance, when they get into trouble abroad.
I think in the long run, this investment will be less expensive, rather than budgeting P100-million yearly for legal assistance for only four cases.
We are not suggesting that we send Filipino law scholars in every country.
We suggest sending scholars only to those countries that have many Filipino OFWs.
Aside from Hongkong, we can send scholars to Singapore, Japan, Saudi Arabia.
For Saudi Arabia, we can send Filipino muslim scholars from Mindanao, who would no longer have major religious adjustments to make.
We suggest the government do a pilot project in nearby Hongkong.
Then later, let’s replicate this in other countries.
It is different when it is a Filipino lawyer advocating for an OFW abroad.
There is a built-in desire, if not passion, to help a countryman, rather than hiring a foreign advocate.
We hope the next president of this country, will have that heart for our OFWs, and will do everything to provide genuine, meaningful legal assistance our OFWs truly deserve.

Thursday, October 08, 2009

Act of God: Defending God

Whoever invented the phrase “act of God” must hate God.
The inventor refers the phrase “act of God” to natural calamities, disasters, mayhem, perils, damages.
This is unfair because it creates a mis-impression that everytime there is a natural disaster, it is a result from God’s intervention.
We--- as Christians--- believe that God does not desire to harm His own children.
Besides, if there is a natural calamity, there is no evidence, nay eyewitness, that God really was principal by direct participation in causing such calamity.
Neither can there be evidence that God masterminded the perpetration of such calamity.
So by blaming natural disasters, and human sufferings to “acts of God” is a product of human imagination.
It is hearsay.
It is a conclusion that has no basis.
So I do not know why human sufferings resulting from natural causes like volcanic eruption, lightning, landslides, flooding, are attributable to “acts of God”.
The phrase “acts of God” is even accepted as part legal language.
The Supreme Court recognizes the phrase acts of God.
For example, the case Philippine Bar Association versus Court of Appeals (October 3, 1986) defines an act of God this way:
“An act of God has been defined as an accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains or care, reasonably to have been expected, could have been prevented”.
I disagree with this.
In the first place, if it is an accident, then how could it be an act of God?
To legally recognize the phrase “act of God” is, to my mind, illegal.
Even the Bible clearly states that God's plans are not for man to suffer but to prosper.
For I know the plans I have for you,” declares the LORD, “plans to prosper you and not to harm you, plans to give you hope and a future (Jeremiah 29:11)
On the other and, and to be fair, I think reference to an “act of God” is equated with an event caused by natural causes, as opposed to events attributable to acts of man.
But this is no excuse.
We should not bring God into the picture as a cause, when natural disasters occur.
There are other more appropriate words like “force majeure” (fuerza mayor) for “fortuitous events”.
Kawawa naman si Lord.
The Supreme Court should be the one to remove the phrase “acts of God” from the annals of jurisprudence.
God must be rolling in anger everytime a natural disaster happens, and people refer to it as an “act of God”
It’s unfair to God.