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
not”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.

SC ruling final: Josy sits in House

Jocelyn S. Limkaichong shall continue to sit as member of the House representing the first district of Negros Oriental.
This is the outcome of the Supreme Court resolution of July 30, 2009, after it denied “with finality” the motion for reconsideration seeking to disqualify and unseat Limkaichong.
At the same time, the Supreme Court recognized that legal efforts to question Limkaichong’s qualifications shall now be in the House Electoral Tribunal (HRET).
The core issue in the various petitions is the qualification of Josy to run for, be elected to, and assume and discharge the position of first district representative.
The contention of those seeking Josy's disqualification is simple: Josy is not a natural born citizen. Not being a natural born citizen, she lacks the constitutional qualifications for membership in the lower house.
In the last elections, Josy garnered the highest number of votes for first district representative. She was eventually proclaimed, and has since discharged the office as member of the lower house.
According to the petitions to disqualify Josy, she is not a natural born Filipino because her parents were Chinese citizens at the time of her birth.
The petitions went on to claim that the proceedings for naturalization of Josy’s father, Julio Ong Sy, never attained finality due to procedural and substantial defects.
The supreme court rejected the petitions.
The supreme court has ruled that it is not enough that Josy’s qualification be attacked and questioned before any tribunal or government institution.
There must be proper proceedings required by law.
“First things first” said the supreme court.
If Josy’s qualification is assailed because her father’s citizenship is in question, then the first thing to do is to cancel the father’s naturalization certificate.
This is laid down in Section 18 Commonwealth Act 473.
Under the law, the solicitor general, his representative or the provincial fiscal can file a motion in court to cancel the naturalization certificate of a naturalized person, in this case Josy’s father Julio Ong Sy.
This is what the supreme court meant when it said “First things first”
Not even private persons, in an election contest, can seek a declaration of Josy’s non-qualification, said the court.
Denaturalization “is plainly not a matter that may be raised by private persons in an election case involving the naturalized citizen’s (Juilo Sy’s) descendant (Josy)”, said the supreme court.
Finally, the supreme court ruled that in seeking Josy’s disqualification on account of her citizenship, the rudiments of fair play and due process must be observed.
In observing due process, the Court said, Josy is not deprived of the right to hold office as member of the house of representatives.
Also by observing due process, her constituents would not be deprived of a leader whom they have put their trust on, through their votes, the court said.


Edgar Teves: I feel emancipated

September 9, 2009

Mr. Ely Dejaresco
Atty. Elmar Jay Dejaresco
The Negros Chronicle
Dumaguete City

Dear Ely and Jay,

I would like to convey to you my thanks for publishing last Sunday, September 6, 2009, the Supreme Court’s decision regarding my case.

It had been a burden really for the past few years as it hampered some of my ventures. I felt that your segment had in some way provided me a sense of emancipation. There is nothing next than to have cleared my name at last.
Once again, thank you.

Sincerely,

Edgar Y. Teves.

New adoption requirement

There is now a new requirement for adoption in the Philippines.
Republic Act No. 9523 is entitled "An Act requiring certification of the Department Social Welfare and Development (DSWD) to decalre a child legally available for adoption as a pre-requisite for adoption proceedings."
Under the rules and regulations recently promulgated, the secretary of DSWD or his representative, has the power to declare and issue a certification declaring a child legally available for adoption.
This certification shall be a pre-requisite in adoption proceedings.
Prior to the passage of the law, there was no required prior dtermination by a government agency that a chlid is available for adoption.

Defamation suit by Bais mayor dismissed

The Supreme Court second division has dismissed the civil defamation suit filed by Bais City Mayor Hector C. Villanueva against two national dailies, Philippine Daily Inquirer and Manila Bulletin, and its editorial personnel.
Villanueva sued the two newspapers when it erroneously published, just before the 1992 elections, that Hector Villanueva had been disqualified as a mayoralty candidate. This false news reporting, Villanueva alleged, resulted in his electoral defeat.
Penned by Justice Leonardo Quisumbing, the Supreme Court ruled, among others, that the erroneous news report constituted part of what is known as qualified prvileged communication, therefore the newspaper cannot be held liable for defamation.
The Supreme Court cited the case of Arturo Borjal versus Court of Appeals (G.R. No.126466, Januay 14, 1999), which said that the enumeration in Article 354 of the Revised Penal Code is not an exclusive list of qualified privileged communications since commentaries on matters of pubic interest constitute a valid defense in an acton for libel or slander.(G.R. 164437, May 15 2009)

JID observation:
The Borjal case involved an opinion article. The Villanueva case involved a news report. The difference is that news report is not a "commentary". A news report is a narration of facts obtained by a news oganization. So in this case, even straight news reports, or narration of facts (as oppposed to commentaries/opinons), despite being erroneous, are considered qualified privileged information, which negates any liability for damages.

Tata Villanueva can pursue this discussion in the high court. I recall that the Supreme Court in the Borjal case said that commentaries, to avoid civil liabilities, must be based on established facts. Factual correctness is a pre-condition to justify defamtory commentaries. Let me quote that particular Supreme Court statement in Borjal: "In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts." But in this recent Villanueva case, even publication of factual incorrectness itself would defeat a defamation suit.
Has the Borjal ruling (requiring factual correctness as a pre-condition) been overturned?
As journalist, this decision is a victory. As a student of the law, I think this should be clarified.

Mandatory Legal Aid deferred

June 28 2009---The Supreme Court deferred until December 31, 2009 the implementation of the Rule on Mandatory Legal Aid Service, which should have taken effect on July 1. Instead, the Rule will take effect on January 1, 2010.
Under the Rule, every practicing lawyer will be mandated to render a minimum of 60 hours of free legal aid services to indigent litigants yearly, among others.
The Rule is aimed at enhancing “the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them.”
This rule was deferred as the implementing rules have yet to be finalized by the integrated Bar of the Philippines

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.