Sunday, December 25, 2011

TRO effective sans compliance of conditions

My Christmas eve celebration was spoiled a bit by a disturbing read of a dissenting opinion of the Supreme Court that I am attaching.
http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_sereno.htm

I am referring to the dissenting opinion of Justice Maria Lourdes Sereno in connection with the petition of Gloria Macapagal Arroyo seeking to leave the country (G.R. Nos. 199034 and 199046).
The Sereno dissent, promulgated just eleven days ago on December 13, 2011, is unprecedented in several ways.

First, I got a front seat ticket to the internal, behind-closed-doors discussions of the Supreme Court.

Second, I just learned tonight that one of the very basic and long-observed rules on issuances of Temporary Restraining Orders has just been overturned by this Supreme Court.
The basic rule is, if a condition in a TRO is not met, the TRO does not take effect.
I have experienced in law practice not observing a TRO, when one of conditions imposed by the court is not complied with.
This is a very basic procedure.
However, the Supreme Court has overturned this in its November 29, 2011 resolution in ruling that “the TRO is not suspended despite non-compliance with a condition”. I read this in Sereno’s dissent.
This resolution will have serious repercussions in the way lawyers practice law.
This means that even if a condition in a TRO is not complied with, the TRO is still effective.
But what disturbs me more is the flip-flop of the Supreme Court in arriving at this conclusion, based on the narrations of Justice Sereno.

Third, I just learned tonight there is suppression of freedom of speech in the Supreme Court even on its own justices.
The dissent of Justice Sereno was refused publication upon directives of the Chief Justice.
This is also the first time in my law practice that a dissenting opinion is much feared, to the point that it is refused publication and/or dissemination, to the prejudice of the public’s right to know.

Fourth, this is the first time I learned that it is possible to dissent to a dissenting opinion, or to make a “counter-dissent” as Justice Sereno puts it.
I recall in law school a case we read where a lawyer was castigated by the Supreme Court for filing a motion for reconsideration to a dissenting opinion.
A dissenting opinion is supposed to be what it is--- an opinion that dissents to a main opinion.

Its been an educational Christmas eve for me.

Friday, December 23, 2011

Christmas in our hearts

Christmas is in the air.
But we must make sure Christmas is in our hearts too.
The true spirit of Christmas is giving.
But this time, giving should not be in the nature of exchange gifts.
So many have been distressed because of the devastation brought by typhoon Sendong.
Just yesterday, we received stories that the affected hinterland areas of Valencia, particularly Palimpinon, Puhagan, Mala-unay, Pulang-bato have been isolated from ordinary transport that is why relief has come a little slow.
This Christmas, the Lord is giving us a golden opportunity to celebrate the season the way it should be celebrated.
We are witnessing so many brothers and sisters suffering because of the typhoon.
We visited barangay Batinguel and Candau-ay and around 250 families there will be spending Christmas in the classrooms and sleeping atop desks.
We went to the wake of a family, the Balbon-Calijan family of Tubtubon Sibulan, six members of whom perished because of the typhoon’s merciless wrath.
It is a heart-wrenching, chest-crumpling story.
It is a difficult struggle already to loose a loved one.
How much more six family members at the same time, and worse, at Christmas?
The survivor-husband Nimuel Calijan, weeping in front of an array of coffins, summed it all: “This is like a terrible dream.”
This week, we saw the face of tragedy.
On the happy side, our eyes saw the generosity of many willing to help.
We also witnessed the eager response of kind hearted- individuals who just gave what they could to ease the pain of those who suffer.
“There was a call, so we came to help,” said one doctor bringing a box of relief items.
God does not physically come down from Heaven to give aid to the distressed.
He uses those fortunate to be spared as instruments to implement His works of mercy.
But the destruction is so overwhelming, that we need more help.
We suggest that you organize your group, your peers, your classmates, officemates, and team up to give.
There are still many others whose shoulders just need to be gently tapped, so they can extend help.
Sometimes, they are just waiting for someone to initiate.
Believe it or not, you and your friends can create your own little miracle, and see the spectacle of God’s amazing grace.
Let’s continue to give this Christmas.
Give without ceasing.
With that, we can truly say Christmas is in our hearts.
From my family to yours, Merry Christmas.

Monday, October 31, 2011

Ageless Jose Mari Chan


The other night, we watched a concert-for-a-cause featuring Jose Mari Chan titled “Constant Care” at the cozy open-air venue of Panglao Nature Island Resort in Bohol.
The affair is a project of the radio network of the Bohol Chronicle, under the flagship of DYRD in Tagbilaran City.
DYRD is marking its golden anniversary after fifty years of broadcast service.
DYRD first went on the air in October 1961.
It has been fifty years of radio activity starting from wirecasting to internet broadcasting.
One of the highlights of the anniversary is a concert for the benefit of Inyong Alagad, the longest running public service radio program of the station providing assistance to indigent residents of Tagbilaran and other Bohol towns.
It was a night of nostalgia.
Jose Mari Chan belted out a treasure trove of his classic hits beginning with “Big Beautiful Country”
This song begins with the lyrics “Welcome world, to this big beautiful country…”
His debut in the recording industry was his first hit single “Afterglow” in 1967.
This was a time when, as a young musical artist, Jose Mari Chan would literally bring a bunch of ‘45’ records (played then on turn tables) and would do the rounds in radio stations pleading to disc jockeys to play his new record.
The concert was also sponsored by Philippine Airlines, so Jose Mari Chan paid tribute to the flagship carrier by singing the commercial of PAL which he composed in the 1970’s titled “Love at Thirty Thousand Feet.”.
Until today, the melodic tune of PAL is played not only in media commercials but as inflight background instrumental while passengers await to soar in the air.
Jose Mari Chan is widely recognized as one of the nations most prolific balladeer.
He is known as Mr. Songwriter. He is engaged by the nation's top advertising companies owing to his ability to create catchy radio/tv jingles and commercials.
He sang one-by-one his music and romance he wrote through the years including Deep In My heart, Tell Me Your Name, Beautiful Girl.
An innovation in the concert was to select local female talents of Bohol to do the duets with Jose Mari Chan.
A talented Tagbilaran pediatrician ably replaced Regine Velasquez in “Please Be careful with My Heart”
A locally-based registered nurse did not lag in musical ability in “You’re my Girl, My woman, My Friend” which, Jose Mari Chan related, he wrote for the wedding of his sister.
The most touching love songs were those that sprang his true-to-life love experience.
In his bachelorhood, he was heart broken when his girl friend left for Osaka to do missionary work.
In his loneliness, he wrote “Refrain” which was a smash when it was recorded and released in the market.
He said he considered “Refrain” as his “winning” song, among his array of hits, because with this song he won the heart of his girlfriend, who later became his wife.
His beautiful wife, who could easily fit the pretty lass, in the song Beautiful Girl, is Mary Ann Chan who was seated at the front row, occasionally signaling him to wipe the sweat off his face in between songs.
When he was about to celebrate his eighth weeding anniversary with his wife, he was suddenly transferred by his sugar trading company from New York to London.
He had heavy feelings about leaving his wife and family in New York.
Although destined to go to a faraway place, he wanted to assure his wife of his lifelong commitment, thus the song “Love to Last A Lifetime” was written, and eventually it became another song for the charts.
Before he sang the song, he recited the lyrics like a poem which I realized can be appreciated as pleasantly.
Capping the concert were the two of his most famous Christmas melodies “Perfect Christmas” and “Christmas in our Hearts”
“Christmas in our Hearts” is a duet with daughter Elizabeth Chan, but that night the audience willingly did the duet part.
I had promised my sister Ellen to call her while she lay in her hospital bed in Manila when Jose Mari Chan sang “Perfect Christmas” and “Christmas in Our Hearts” so I obliged, and “re-broadcast” it to her direct . It was Christmas in the air at that moment.
It was prophetic too, as Ellen would again have another ”Perfect Christmas” in December (Merry Christmas, Len)
I must admit, I have been a Jose Mari Chan fan for a long time.
In the few stacks of cd’s in the car, two of them are albums of Jose Mari Chan.
He is , to me a national treasure.
No one comes to close when it comes to creating ear-catching radio jingles.
He is one of the great modern Filipino musicians because his songs are ageless.
His melodic creations resonate only too well with the Filipino’s musical taste.
"Christmas in Our Hearts” is a classic example.
Many of us watching him live were all the more endeared witnessing his undying passion not only for music, but also his burning desire to share and showcase his abundant talents to his fellowmen.
Young and old, know the lyrics of his creations.
He has a multi-generational following.
He is an entertainer where a grandparent and grandchild can enjoy watching together.
Indeed, Jose Mari Chan, is a musical talent for the ages.

Saturday, October 08, 2011

Wednesday, April 27, 2011

My goodness, the Bulls are Back


After the end of the reigning Bulls dynasty in the nineties, I have lost interest in the NBA.
This morning I was casually watching the Bulls-Pacers Game 5 first round playoffs, and suddenly I felt getting into a time warp back to the nineties saga.
Michael Jordan is right. Derrick Rose is going to be a star.
Rose, NBA rookie of the year awardee, already played in the All-Star this year.
A Chicago native, Rose sparks the Bulls rampaging offensive.
The Bulls’ burly men provide a solid defense Joakim Noah, veteran Kurt Thomas, Sudanese Luol Deng, Carlos Boozer and Kyle Korver.
The Chicago Bulls has re-built a formidable team in just a decade, and has quietly crept its way to the top once again.
I think I’ll be watching more NBA basketball.

Sunday, April 17, 2011

Credit card charges: only 2% monthly

In the Philippines the Supreme Court has declared that credit card charges should only be two percent (2%) per month or twenty-four percent (24%) per annum.
This drastically reduces the contractual stipulation by credit card companies, which impose as high as one hundred eleven percent (111%) of interest, penalty and finance charges on credit card holders.
Based on contract, credit card companies can charge as high as 9.25% per month, broken down as follows:
Every month the credit card company slaps card holders with three percent (3%) interest .
In addition, another three percent (3%) imposed for penalty charges.
In addition, another 3.25 % percent is imposed for finance charges, for a total of 9.25% per month.
In one year, that could accumulate to 111% additional charges.
Thus, if you have a principal obligation of P100,000 to the credit card company, in one year, your debt can accumulate to more than double the principal amount.
This is just a ball bark figure (more or less) because we are not talking about monthly compounding of these charges, if this is in the contract..
The Supreme Court said these charges are too much.
“We are of the opinion that that the interest rate and penalty charge should be equitably reduced… to 2% per month or 24% per annum,” The Supreme Court said.
Courts are authorized by law to reduce interest and penalty charges if the court believes that the contractually agreed charges are unconscionable.
Under our example, if the credit card debt is P100,000.00, after a year, the total debt can accumulate to only around P124,000.00, more or less.
If you are in default in your credit card payments, and the credit card company slaps you will all sorts of charges, you can argue that the additional charges should only be two percent (2%) monthly.
It would also be advisable if the card holder go as far back in his/her bills so he/she can seek a re-computation at a rate of two percent (2%) per month in past statements of account.
[Ileana DR Macalinao versus Bank of the Philippine Islands, G.R. No. 175490, September 17, 2009.]

Friday, February 25, 2011

Life Insurance Beneficiary

I got an interesting query on life insurance.
Here is the situation:
Tatay lived a colorful life. In his lifetime he had a legal wife and children.
Later tatay separated from his legitimate family and lived with a paramour.
Tatay and paramour bore a child named R-Jay.
While living with paramour, Tatay got a life insurance naming his paramour and their minor illegitimate child R-Jay as beneficiary.
Tatay died.
Two groups now seek to claim the proceeds of Tatay’s life insurance.
First, the legitimate family members (wife and children) claim they are entitled to the insurance proceeds being the legal hers.
On the other side is paramour (with her illegitimate child R-Jay) claiming they are entitled to the proceeds since they were the named beneficiaries.
The question posed to me was: who gets the insurance proceeds, the legitimates, the paramour and her child, or share in accordance with rules on succession?
There is a rule taken from American law that whoever is named as beneficiary gets the life insurance proceeds.
Insurance proceeds are likened to a donation, a gift out of liberality.
In our case, paramour is disqualified from becoming a beneficiary of a life insurance, even if she was expressly written as one.
The mandate of Article 2012 of the Civil Code cannot be laid aside: any person who cannot receive a donation cannot be named as beneficiary in the life insurance policy of the person who cannot make the donation.
The Civil Code also bars donations between common law spouses (not married).
“Policy considerations and dictates of morality rightly justify the institution of a barrier between common law spouses in record to Property relations since such ultimately encroaches upon the nuptial and filial rights of the legitimate family,” said the Supreme Court.
The legitimates cannot also receive the insurance proceeds.
Life insurance proceeds out of special contract.
With a beneficiary, the proceeds will not belong to the category of “inheritable” items.
It is only in cases were there is no beneficiary or when the beneficiary is disqualified by law to receive the proceeds that the insurance policy proceeds shall redound to the benefit of the estate of the insured.
So it is the illegitimate child R-Jay who is entitled to the insurance proceeds.
“No legal prosprciption exists in naming as beneficiaries, children of illicit relations by the insured,” said the Supreme Court.
But since R-Jay is still a minor, someone, likely the paramour (mother) should have herself appointed by the court as legal guardian first.
Until the court appoints a guardian in behalf of the minor illegitimate, the insurance company can withhold the release of the check.

Friday, February 11, 2011

Angelo T. Reyes: Lessons learned

There are many lessons to be learned from the tragic death of Angelo T. Reyes, former Armed Forces Chief of Staff and Defense Secretary.
Reyes, who served government for almost half a century, shot himself Tuesday after hearings in the senate and congress linked him to anomalies in the Armed Forces.
Reyes plunged deep into depression after having been publicly pilloried in the senate hearings.
He himself revealed there was a concerted effort to destroy him.
When the public humiliation extended to his family, he wouldn’t allow it.
One of the lessons which I hope will be addressed is the way congressional investigations are conducted.
I once worked as a lawyer in this Blue Ribbon Committee more than a decade ago.
Things were different then.
Senators participating in blue ribbon hearings accorded respect to their resource persons.
Unfortunately, over the years, things have turned for the worst.
Resource persons, invited to senate house investigations are instantly converted into virtual accused, even criminals.
Senate investigations have become an arena for political grandstanding, headline-grabbing, power-tripping and ego enhancement, and personal vendetta.
This is not the kind of senate hearing that our constitution envisioned.
Senate hearings have a specific purpose, that is, it must be in aid of legislation, not in aid of persecution.
One of the changes we want to see in the senate is the imposition of restraint in the treatment of resource persons because these invitees come not as persons accused in a criminal case.
Senate hearings should not be likened to a police interrogation.
The best way to learn how to conduct congressional investigations properly is to watch C-SPAN coverage of U.S. congressional investigations (unfortuntately you will not see a Jinggoy Estrada manner of questioning there).
We wish to see changes in the manner of treating resources persons who invoke the right against self incrimination.
This is a very important constitutional right which insulates a person him from becoming a witness against himself.
Yet, I have sensed that this constitutional protection has been emasculated by senators who feel discomfort every time a guest invokes this right.
Again, the senate is not an arena for criminal investigation that is why leeway must be given to guests who invoke the right to refuse to be a witness against himself.
What is happening is that the senators will have to evaluate every time a resource person invokes this right.
The senators will determine whether the availment of the right by the resource person was proper.
In the United States, resource persons in congressional investigations are respected when they invoke the Fifth Amendment.
The Fifth Amendment of the U..S. Constitution is the counterpart guarantee against self incrimination.
This is in recognition of long-recognized supreme court interpretation that the privilege against self incrimination extends not only to answers that support a conviction of a crime, but also those which merely furnish a link in the chain of evidence needed to prosecute a claimant for a crime (Hoffman versus United States 341 U.S. 479)
Since a senate investigation is not a criminal inquisition, the senate should leave criminal probes to proper bodies like the office of the ombudsman and the department of justice and just focus on the proposed legislation being considered.
What is happening is that when a resource person invokes his right against self incrimination, the senators will insist in forcing the recourse person to give an anticipated answer already lingering in the legislators’ minds.
And if unsuccessful, they threaten the resource person with contempt and deprivation of liberty.
Worse they threaten to bring their family into the hearing.
What kind of legislative investigation is that?
I believe the sacred right against self incrimination that protects all of us individuals is being unconstitutionally diluted and emasculated in congressional inquiries.
I hope the death of Angelo T. Reyes will serve as a constant reminder that congressional inquiries should not endanger individual liberties and tromp personal dignity.
Legislators should not demean themselves and the institutions they represent.

Saturday, January 22, 2011

Practical benefits of dual citizenship

There is a law that allows two citizenships to Filipinos.
Republic Act No. 9225 allows the retention and re-acquisition of Filipino citizenship.
This law is applicable to one form of dual citizenship.
The dual citizenship circumstance to which this law applies, covers natural born Filipinos who loose their Philippine citizenship.
Millions of natural-born Filipinos have gone abroad to seek greener pastures.
Along the way, while living and earning abroad, they lost their Filipino citizenship and have, for practical purposes, obtained the citizenship of their adopted country
Upon their retirement and return to the Philippines, they suddenly realize they are foreigners in their own homeland.
They meet the reality of being a “non-Filipino”.
R.A. 9225 fixes this anomaly by allowing “former” Filipinos to re-acquire or retain their Filipino citizenship.
It is easy--- a do-it-yourself affair.
The former Filipino just needs to file a petition for re-acquisition.
This is a form one can obtain easily in the internet, either from the website of the Bureau of Immigration www.immigation.gov.ph or any Philippine consulate or embassy.
The petition is filed with the Bureau of Immigration or any of its offices, or consular offices abroad.
There is a payment of P3,000.00 for this.
Another important requirement is taking an oath of allegiance
There are practical benefits of re-acquiring or retaining Filipino (dual) citizenship.
Foremost of these benefits is that one who re-acquires Filipino citizenship, does not have to loose his previously acquired foreign citizenship.
That is why it is called “dual” citizenship.
Second if one re-acquires Filipino citizenship, he can stay indefinitely in the Philippines and would no longer have to report to the immigration office like foreigners do.
Re-acquiring Philippine citizenship also provides comfort, convenience for the elderly balikbayans.
Those who have obtained citizenship in countries in North America come back to the Philippines during the hardly-bearable winter.
Dual citizenship can be seriously beneficial to those who have arthritis and other weather-induced, weather-prone ailments.
When the summer heat dawns in tropical Philippines, they return to where spring has blossomed.
One who re-acquires his Filipino citizenship can perform acts, and avail of benefits accorded to ordinary Filipino citizens.
Among these practical benefits include being able to obtain senior citizen card and availing its benefits like watching free movies, buying virtually everything at discounts like medicines, food, airfares.
One who has re-acquired Philippine citizenship can buy real property, be an incorporator in corporations that require 100% Filipino ownership (like mass media ownership). He can hold vital positions in certain industries (realty, mining, logging) without running afoul with the anti-dummy law.
One who re-acquires his or her Philippine citizenship can also vote, run for certain elective offices, or be appointed in a government office, if he desires to serve the motherland this way.
Those who have lost their Filipino citizenship should seriously consider availing of the benefits of Republic Act 9225 or the dual citizenship law.The Philippine consulate in Los Angeles is the regular site of former Filipinos who, after having obtained American citizenship, apply to re-acquire Philippine citizenship by taking their oath of allegiance, and become dual citizens.

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Saturday, January 08, 2011

Family roots and reunion


Last December 31, just before the new year dawned, I attended the annual Tale family reunion in Valencia of which I am a member by affinity.
My wife, Ruby is the great-great grand daughter of Policarpio Tale and Lucia Verduguillo, who lived in Dauin, Negros Oriental generations ago.
Yearly, the Tale family rewinds, replays, and rekindles the story of their ancestors Policarpio and Lucia Tale.
Policarpio Tale was born in sitio Kanghangin now Magsaysay, Dauin.
He was an illegitimate son of Nicolas Alas-as and Gavino Trumata of Poblacion Dauin.
As a young boy he spent an austere life with his mother.
An incident in the life of Policarpio carved a path in his life that spelled his destiny.
One day while cultivating the plants in his mother lot, an unusual chicken pecked Policarpio’s hand.
Immediately after the chicken dropped excreta with a ten centavo coin.
Policarpio through this was a good luck charm.
Apparently it did not turn out to be good charm initially, for the carabao he was then tending, went astray and damaged the neighbor’s crops.
This made his mother very angry.
Policarpio was severely punished.
The following day he decided to run away to Sulodpan-Isugan Bacong, where he found a job in the household of the Solamillo. family as encargador.
Seeing that young Policarpio was trustworthy and a hardworker his master prodded him to marry a young lady named Lucia Verduguillo
In the wedlock, they were blessed with eight children namely,
Valentina, Hilaria, Pedro, Bruno, Bibiana, Geronima, Melchor and Nazario.
My wife Ruby Vendiola traces her roots from Bibiana Tale, who later married Aquilino Vendiola.
Bibiana and Aquilino’s children were:
Francisco ‘Kikong’ T. Vendiola who married Felicisma Marino. Francisco and Felicisima were my wife’s grandparents.
Cesaria Vendiola was married to Jesus Tanada.
Gil T. Vendiola married Olympia Monding.
Perfecta T. Vendiola lived and died single.
Another sibling was the late Padre Galo T. Vendiola of Bacong.
Within the marriage of Francisco Vendiola and Felicisima Marino were born the following:
Epifania Vendiola (who married Arturo Baena), Revocato M. Vendiola (who married Isidra Elnar); Marcos M. Vendiola (who married Josephina Tabada), Concordio M. Vendiola (who married Aurora Sun); Maria Vendiola (married to Saludario A. Sonjaco Sr.); Blesilda Vendiola (married to Esdras Init); Rosario Vendiola (married to Antero Bongbong); Constatino Vendiola (married to Teresita Melo) (Ruby’s parents); Arturo M. Vendiola (married to Teofila Banua); Andres M. Vendiola (married to Julitalyn Feraren)
The scattered descendants of Policarpio and Lucia Tale continue to close ranks and organized a board and officers.
The board of directors of the Tale Family Circle are represented each by the heirs of the children of Policarpio and Lucia Tale.
The board members are: Antonio Wenceslao for the heirs of Valentina Tale; Josephina Teves for the heirs of Hilaria Tale; Adelina C. Alcantara representing the heirs of Pedro Tale; Ade Zamora for the heirs of Bruno Tale; Lyndon B. Vendiola representing the heirs of Bibiana Tale; Reiner Sarno Divina for the heirs of Geronima Tale; Estrella Tale for the Melchor Tale group; and Becky T. Bautista representing the heirs of Nazario Tale.
The present officers of the Tale Family circle are:
Franklin Tale, President ; Earl Tale, executive vice president; Jose Tale vice president for Luzon; Saludario V. Sonjaco Jr. vice president for Visayas; Cathrine T. Tan vice president for Mindanao; Edgar V. Init secretary; Fe Nestoria M. Cena, treasurer; Noemi S. Yuag auditor; Florita T. Ornopia, business manager; Fiel Ornopia, P.R.O.; Larry Gajelomo, Eudoxio V. Init, Sgt. at Arms;
The 46th Tale reunion in 2010 was hosted by the heirs of Bibiana Tale.