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.

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.]

Hubert Webb: Not guilty verdict is not innocence?

I really pity Hubert Webb.
After the Supreme Court acquitted him of the crime of rape with homicide, he is still vilified by the disgruntled.
Some people, legal observers, maintain that a “not guilty” verdict is not tantamount to innocence.
Some say the supreme court merely declared that the prosecution was not able to prove the guilt of the accused beyond reasonable doubt.
This does not mean the accused were innocent, they add.
While the statement is generally true, it is not true in all cases.
In acquitting an accused the supreme court looks at the prosecution’s
evidence to see if the evidence proves the guilt beyond reasonable doubt.
It is not for the accused in a criminal case to prove his innocence.
It is for the prosecution to establish with moral certainty, beyond any reasonable doubt, that indeed, the accused committed the crime.
However, the case of Hubert Webb is far different.
In Hubert Webb’s case, the supreme court not only found reasonable doubt in the prosecution’s evidence.
Not only was the court convinced of the unreliability of the prosecution’s star witness Jessica Alfaro.
Apparently, Jessica Alfaro got tangled in a web of lies (No pun intended).
Hubert Webb was also able to prove his innocence.
The Supreme Court said Hubert's alibi impeached Jesicca Alfaro's testimony.
If one reads the supreme court decision closely, it will readily be seen that the supreme court tackled Hubert Webb’s “documented alibi”.
With unassailed, unrebutted authenticated documents (by no less than two U.S. secretaries of state), Hubert Webb was able to establish that he was 8,000 miles away at the time the Vizconde massacre happened on June 30, 1991.
So for people to say that Hubert Webb’s acquittal does not mean he did not commit the crime, the same people must explain how Hubert Webb could have been in two places at the same time on June 30,1991.
The weakness of the prosecutions case, to my mind, is its failure to rebut the “documented alibi” of Hubert Webb.
And it is too late now to be producing rebuttal witnesses.
The Supreme Court is not a trier of facts.
Litigation has to have an end.
The prosecution should have proved, on rebuttal evidence during the trial in the lower court, that the alibi documents of Hubert Webb were false, fake, forged, or fabricated.
Alternatively, the prosecution should have proved, on rebuttal evidence, that it is physically possible for a human being to be in two places at the same time.
What the prosecution successfully did, was to offer conjectures, i.e. that it was possible that Hubert Webb could have sneaked into the Philippines on June 30, 1991, rape and kill three persons, and then sneak out of the country thereafter.
Can this scenario be possible without being tracked by the immigration authorities of two countries?
Yet as to how this could be possible, the prosecution did not offer any proof.
But conjecture is not proof.
Conjecture is nothing but a polluted allegation.
For those who maintain that Hubert Webbs acquittal does not mean he did not commit the crime, it would do well if they can provide a rational and convincing explanation to Hubert Webb’s unrebutted, documented alibi that he was in the United States on June 30, 1991.
Otherwise, Hubert Webb is not merely “not guilty”.
He is also innocent.

If gay teacher sexually molests student, school is primarily liable

A fourteen year old male student in one prominent Catholic school (name begins with "S") was sexually molested by a gay teacher.
The sexual molestation happened in the student’s bedroom while the teacher was conducting after-class tutorials.
The mother became uncomfortable when she noticed the child’s bedroom was locked while tutorial session were being conducted.
Mother’s instinct told her to command the house-helps to check from the window outside to see what was happening inside the bedroom.
The two house-helps came running back to the mother, shell-shocked as they actually witnessed the teacher’s mouth sucking the child’s penis while seated on the bed.
The teacher was reported to the police and was arrested and jailed.
The innocent child confessed that this had been happening several times already.
The mother’s question is whether the school---aside of course, from the teacher--- has any liability for what happened to the child.
The school was trying to explain to the mother that it had nothing to do with the incident because it happened outside the school premises.
Is the school correct?
No.
The school can be held civilly liable, even if it was done outside the school premises.
The fact that the incident happened outside the school is even irrelevant.
Article 218 of the Family Code provides that the school, its administrators and teachers, shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school.
The school likewise can be liable under the civil code.
The teacher is under the employ of the school.
The civil code provides that employers (in this case, the school) shall be liable for the damage caused by their employees (the teacher) acting within the scope of their assigned tasks.
The clause “within the scope of their assigned tasks” includes those acts by the teacher-employee, in furtherance of the interests of the school.
The crucial question is whether or not the teacher was, at the time of the incident, performing act in furtherance of his mater’s business.
It can hardly be debated that, conducting tutorial lessons by the teacher, is something in furtherance of the schools interest of providing quality education.
The fact that the teacher was merely conducting after-class tutorials, and not classroom instruction, does not relieve the school of the burden of rebutting the presumption that there was negligence in the selection and supervision of its teachers.
The complainants, the parents of the child-victim, need only establish the existence of the employer-employee relationship between the school and the erring teacher.
Also the complainants merely need to prove that the teacher was in an act not for an independent purpose of his own (tutorial), but in furtherance of the business of the school.
However, what merely arises is a presumption of negligence on the part of the school.
The school can rebut this presumption by proving that it observed the proper diligence under the circumstances.
The civil code provides that the responsibility of the employer (school) shall cease when it proves that it observed the diligence of a good father of a family to prevent the damage.
The school’s proper diligence would mean diligence in the selection and supervision of its teachers.
Supervision includes formulation of suitable rules and regulation for the guidance of its teachers in conducting tutorials.
It also includes issuance of proper instructions intended for the protection of the public and persons with whom the school has contractual relations, through its teachers.
The school is expected to impose upon its employees the necessary discipline called for, in the performance of any act indispensable to the business and beneficial to the school.
If the school fails to rebut the presumption of negligence, the school will be primarily and solidarily liable with the teacher.
Needless to say, additionally, the teacher will be liable criminally under child abuse law (Republic Act 7610).
Imprisonment under the law ranges from 14 years to 40 years.
It is very important for parents to monitor the activities of their teenage children, even right in their own bedrooms.

Write simply

In our mandatory continuing legal education, the importance of writing good, correct English was highlighted.
The correct way to write and communicate effectively is to write in very simple English (emphasis on "very").
The legal profession is not insulated from people who fail to communicate effectively.
I am not even referring to lawyers.
There are even judges who cannot communicate their decisions effectively.
As a result, their decisions cannot be understood.
One example discussed in the continuing legal education, is that judge whom the court took to task for his manner of writing a decision.
The Supreme Court was apparently pissed of with the judge's writing style, to the extent that the high court quoted verbatim a significant portion of the judge's decision.
It was indeed, horrific.
In the case of Leonor versus Court of Appeals [256 SCRA 69 (1996)], a horrified Supreme Court noted the following portion of a lower court decision:

"This is an action for 'Cancellation of Entry in the Civil Registry' particularly on the marriage contract of one Mauricio Leonor, Jr. and Virginia Amor supposedly to have taken place in a long distance past on March 13, 1960 and after a Rip Van Winkle sleep and dormancy liken to a Mt. Pinatubo explosion that rocked the peace and quiet in the lives of the supposedly participants to this drama in Calatrava and San Carlos City, Negros Occidental when out of the blue one party in the person of an aggrieved left-behind spouse revived and revealed an ancient piece of marital bond between her and a reluctant spouse."

The high court did not mince words in describing the decision.
It described the lower court decision as a "crude attempt at literary sophistication."
The high court criticized its "jarring syntax and grammatical inconsistencies."
It decried the use of "convoluted language."
Need I say more?
Its nice to go back to the basic advice in writing well: K.I.S.S.
Keep It Simple...Stupid.

Another wrong decision

The Supreme court keeps on making wrong decisions.
I am not sure if again, the Supreme Court will back track and take an about face on their latest ruling.
I am already noticing that in our day and age, the present Supreme Court keeps on reversing its own decisions.
An example is that decision on cityhood.
Another is the decision considering as resigned appointed government officials who run for public office.
Recently the Supreme has ruled that President Arroyo can appoint a new chief justice once the current chief justice retires on his birthday on May 17, even with the constitutional ban on midnight appointments..
According to the Supreme Court the constitutional ban against midnight appointments only applies to the executive appointments and not to members of the Supreme Court.
The court reason is placements.
According to the court , since the ban against midnight appointments is found in the chapter on the executive department, then the ban must only cover executive appointments.
I could not control but laugh and shake my head when I read this portion of the decision.
I can have an analogy on the court’s weird argument.
If a newspaper editor places an ad about a missing person in the obituary section of the paper, then the interpretation must be that the missing person must already be dead.
For what reason could there be for the editor to consciously place the missing-person ad in the obituary section, other than the suggestion that such missing person has died?
Funny argument isn’t it?
I don’t know how the Supreme Court came up with such ruling, when there is nothing in the constitutional ban that exempts the Supreme Court from being covered by the ban on midnight appointments.
The Supreme Court made additions to the wordings of the constitution.
The Supreme court resorted to interpretation on the pretext of a conflict, or ambiguity.
There is no ambiguity.
And when there is no ambiguity, you are not supposed to create confusion.
The appointment of the next chief justice should be properly left to the incoming president, not to an outgoing president who will become merely a virtual caretaker, in transition to the incoming administration.
Not a few law students are now scratching their heads.
I say to our law students: Don’t despair.
To paraphrase a Chinese saying: We are living in interesting times.

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?

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.

Illegal possession of firearms

The law on illegal possession for firearms comes to light in the wake of the brief arrest-and-release of Noreco II General Manager Ephraim Taclob when the vehicle he was was driving was flagged down by Philippine Army personnel.
The Army purportedly acting on reports that rebels were in the area held checkpoint and uncovered heavy firearms in the vehicle driven by Engr. Taclob.
According to the local Philippine National Police, charges of illegal possession of firearms are going to be filed.
Not very long ago, the law on illegal possession of firearms was very harsh.
This was a product of those Marcos decrees designed to fight the so-called enemies of the state.
For Marcos to ensure that those who ever try to mount an insurrection, or rebellion against the state received the full force of the law, he enacted Presidential Decree No. 1866.
Those found guilty under this decree were meted a penalty of up to forty years in prison.
That was the law then.

Robin Padilla episode

Then came Robin Padilla.
If you recall, Robin Padilla was then the poster boy of the Ramos administration, and was once even regarded as a “role model” for the youth.
But Robin had brushes with the law.
Once, he figured in a hit-and-run while driving his Pajero.
He was pursued by police, and eventually flagged down. He was found to have in his possession various firearms.
To cut a long story short, he was convicted of illegal possession of firearms under the harsh P.D. 1866.
If you want to read this colorful episode of Robin Padilla, I refer you to the Supreme Court decision in Robin Carino Padilla versus Court of Appeals, G.R. No. 121917 March 12,1997.
Robin was sentenced and spent jail in the national penitentiary in Muntinlupa.

Ramon Revilla rescue

Then enter Senator Ramon Revilla, a fellow actor like Robin, who perhaps took pity on the sad state of a young promising colleague.
Thinking that the law is just too harsh, Senator Ramon Revilla authored what is now Republic Act 8294, the current law against illegal possession of firearms. This law took effect July 6, 1997.
I always regard R.A. 8294 as the “Robin Padilla law” because I cannot help but think---rightly or wrongly---that this law was for Robin Padilla. Or at least he was the law’s principal beneficiary.
Because of this law, Robin Padilla is now a free man.
And I think Robin has redeemed himself (so far) , as he has since shown himself to be a “responsible member of society.”

The penalty

The penalty for illegal possession of firearms had been drastically reduced. It is bailable.
The penalty for simple possession of a .38 caliber, 9 millimeter, or similarly (low) powered gun is from four to six years, with a fine of P15,000.
For possessing a higher powered firearms like a .45 caliber, .357 magnum, .22 center-fire magnum, and firearms with automatic firing capability, the penalty under the new law ranges between six to eight years, with a fine of P30,000.

Supreme Court rules

According to the Supreme Court there are mainly two elements needed to convict one of illegal possession of firearms.
First, the prosecution needs to establish the existence of the subject firearm.
Second the prosecution should prove the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same.
To prove the second element, a certification by the PNP firearms and explosives division is needed.
But if the firearm involved is one that cannot be issued to civilians, like an M-16, this certification may be dispensed with.
Another rule laid down by the Supreme Court is that ownership is not an essential element of illegal possession of firearms and ammunition.
What the law requires is merely possession.
“Possession” includes, not only actual physical possession, but also constructive possession.
“Constructive possession” means the subjection of the thing to one's control and management.

Defenses

Essentially, it is not that difficult to prove the elements of illegal possession of firearms.
If one is in possession of a firearms, and he does not have the license to possess, then there is a strong case against him ahead.
But the new law on illegal possession of firearms, R.A. 8294 strikingly provides the accused a wide latitude of “creative” ways to raise a defense.
That is what makes this law controversial, some say non-sensical.

The controversial proviso

Under the law on illegal possession of firearms, one caught unlawfully possessing firearms can be charged with the law, “PROVIDED NO OTHER CRIME WAS COMMITTED.”
I do not know the rationale of this last phrase in the law.
This is the “escape clause” of the law on illegal possession of firearms.
One can be charged with illegal possession of firearms. But if, at the time he was caught, another crime was committed, then he cannot be charged with illegal possession of firearms?
This provision challenges the creative minds of defense lawyers.

Example

Let me give an example.
Suppose, a person is caught by a policeman possessing a .38 caliber gun.
While being arrested, the suspect gives another identity to conceal his true name.
The‘minor’ crime of concealment carries a lighter penalty.
Can the state lawfully charge the suspect of illegal possession of firearms?
Or can he be charged with concealment of name?
Remember, under the law on illegal possession of firearms, there is a proviso which states: “Provided no other crime was committed.”

Outrage in Cebu

I am reminded of that outrageous story I read that happened in Cebu not long ago.
A group of people suspected to be high profile, notorious kidnappers were caught with firearms.
At the time of the arrest they used faked military id's
The notorious gang were charged, not with illegal possession of firearms but usurpation of authoriyt
The latter carried a lighter penalty.
This sparked outrage among member of the legal community in Cebu, who called for an amendment of the law.

Conclusion

So the law on illegal possession of firearms in its present form sparks the imaginative, creative adrenalin of defense lawyers.
This is one of those laws that makes lawyering much more interesting.

Notice of hearing

In litigation, a notice of hearing is very important.
In fact it is indespensable.
The rules of court require that for every motion filed by a party, there must be a hearing so that the adverse party can also be heard before the court grants or denies the motion.
First, a motion is anything under the sun that a party asks or requests from the court to give or grant, other than the favorable judgement sought by the party.
For instance, if a party wants to go to the comfort room, he motions the court.
But of course, going to the comfort room is not litiguous or subject to legal debate that one can just orally request this from the court.
The common motions filed in court are motion to cancel hearing, motion to dismiss the case, motion to resolve, or just anything a party requests the court.
The rule is that when a motion is filed by a party, it must be set for hearing where all parties can be present to deliberate, comment on, or oppose the motion.
That is why a notice of hearing to the other parties is something that cannot be dispensed with.
When a party files a motion, at the end of the written motion, he notifies the other parties by writing: "Please be notified that I am setting this motion for hearing on August 1, 2008 at 9:00 a.m. for approval of the court."
A common mistake by some parties is that it directs the clerk of court, not the parties to set the hearing.
Some parties filing a motion write to the clerk: "Please set the hearing of the above motion on August 1, 2008 at 9:00 a,.m. for the approval of the court."
This is not a notice of hearing contemplated by the rules.
This is nothing but a written instruction to the clerk to set a hearing, not a notice of hearing.
The Supreme Court has ruled that instructions to the clerk of court, not addresed to the parties are not notices of hearing which merit attention of the court.
The Supreme Court ruled that such kind of notices of hearing are a mere scrap of paper.

"M" to "F" in birth certificate

A client consulted me about her daughter's birth certificate.
The client said that instead of the letter "F" for "female" on the "sex" portion in the birth certificate, the letter "M" was erroneously typed.
I told the client in jest that perhaps the mistake was done by the nurse in the hospital who wrote the wrong "sex" of the new born.
Perhaps the nurse mistakenly saw something protruding in your daughter's private part when she was born.
That might explain the mistake, I quipped.
The mother vehemntly denied this suggestion and said this might just have been simple a typographical error.
I told the client that an interchange of the letters "F" and "M" on the sex portion of the birth certificate is not considered a typographical error.
It is a substantial error that requires one to bring the matter to court, in order that it may be changed.
It is akin to a man who undergoes a sex change and wants to change the letter "M" to "F" in the birth certificate.
That is a substantial change in the birth cetificte because it changes the person's gender.
A substantial change requires a court proceeding.
The mother was a little naughty because she asked a hypothetical question:
What if the wrong letter typed in the birth certificate is, for instance, the letter "N"?
Will that not be a typographical error, considering it is neither "M" (for male) not "F" (for female)?
I said it is still a susbtantial (not mere typographical) mistake because "N" might mean "None of the above".

Begging the question?

“Begging the question” is a form of fallacy in logic.
Let’s go back to college Logic 101.
The Skeptic’s dictionary (http://skepdic.com/begging.html ) provides a good explanation of “begging the question”
“Begging the question” is what one does in an argument when one assumes what one claims to be proving, explains the Skeptic’s Dictionary.
A simple example of “begging the question” would be:
“John is attractive because he is handsome.”
The conclusion of this example is that “John is attractive”
The premise, or the supporting statement, is “he (John) is handsome”
The statement assumes that John is handsome.
That John is actually handsome has to be established by a certain objective criteria, not some subjective form of measurement.
Since the statement, “he is handsome” is merely an assumption, it needs to be proven.
Thus, to say that “John is attractive because he is handsome” is to “beg the question.”
At the heart of Meralco’s argument in supporting its contention that Justice Jose L. Sabio Jr., should dis-engage himself from the Meralco-GSIS case, is a procedural rule in the court of appeals.
There is a rule in the court of appeals which allows a justice to whom a case is assigned, and the other justices who participated in the deliberations, to remain handling the case.
Under this particular rule, a justice to whom a case is assigned and justices who participated in deliberations, can remain handling the case if certain events happen.
One of these events listed in the rule is when a preliminary injunction is issued.
According to Meralco, in the Meralco-GSIS case, there was no injunction issued (but only a T.R. O.)
Since there was no injunction, then under the rules, Justice Joe L. Sabio Jr., should have dis-engaged himself from the case, Meralco argues.
This argument seems alright, at first glance.
But if you look at the surrounding circumstances, the argument looses its hold.
The fact is that a decision was pre-emptively rendered in the case, before the lapse of the sixty-day T.R.O.
The decision was rendered when there was really no opportunity to decide whether an injunction was to be issued.
The issue of the issuance of an injunction was to be determined only when the sixty-day T.R.O. lapses
So, the basic question is, why would Meralco assume that no injunction was issued when the opportunity to decide such matter had not arisen yet?
How could Meralco assume that there would be no injunction?
Thus, the premise that “there was no injunction” to prove that Justice Sabio should dis-engage himself (from the case), is merely an assumption, that needs to be established.
Doesn’t Meralco’s argument beg the question?

Meralco-GSIS proceedings raise eyebrows

There are some facts in the controversial Meralco-GSIS case that have raised my eyebrows, mainly because they are either so peculiar, or unusual, or they are not in accordance with ordinary court-practice experience.
If you haven’t been updated with the latest developments, there are accusations that court of appeals Justice Jose L. Sabio Jr. purportedly named the price of P50-million, in exchange for changing or reversing his position, and in effct, favor Meralco.
This is according to one Francis de Borja, a businessman who does not deny being a close friend of Manolo Lopez, one of the controllers of Meralco, and of a partner of The Firm lawyering for Meralco.
On the other hand, Justice Jose Sabio alleges that he has been offered P10-million by de Borja to inhibit (dis-engage) himself form the Meralco-GSIS case.
By the way, Justicre Jose L. Sabio has a narration of the events and it is in the internet http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20080731-151737/Full-text-of-Sabio-letter-to-Vasquez
Undeniably, the juicier part of the Meralco-GSIS legal row is the bribery aspect.
I will not disagree with the contention that bribery should be the main subject of the investigation by the Supreme Court.
Bribery is a serious matter.
However, bribery probe is difficult because transactions are always in cash, like jueteng, masiao, swertres. No paper trail.
So let me leave the bribery aspect aside.
The facts though, bother me.
There is a position paper purportedly coming from Meralco counsel ex-solicitor general Simeon Marcelo, circulating in the internet http://uw.abs-cbnnews.com/images/news/newspics/downloads/Statement%20of%20Meralco%20counsel%20Simeon%20Marcelo.doc
The paper holds the position that Justice Jose Sabio should refrain from handling the Meralco-GSIS case.
However, in the course of presenting his position, Marcelo gives out some revealing facts.
First, Meralco’s petition before the court of appeals was filed on May 29, 2008.
Upon the filing of the petition, or very immediately after, a temporary restraining order (T.R.O.) was issued.
Under the rules in the court of appeals, a temporary restraining order has a lifetime of sixty (60) days.
Assuming that the T.R.O. was issued on the day the petition was filed, or on May 29, 2008, the T.R.O. expired last July 28, 2008.
Marcelo states that the court of appeals eighth division, with Justice Roxas as ponente, rendered a decision dated July 23, 2008 and released the following day July 24, 2008.
This means that a decision on the case was rendered even before the lapse of the sixty-day period of the T.R.O.
We know that a T.R.O. means “status quo”.
This is akin to that moment in the “statue dance” where the music stops, and everybody halts like a statue.
Status quo means “freeze. ” No one moves.
There are two things that happen upon the lapse of the T.R.O. (after the sixtieth day)
Either the court does nothing.
This means that the T.R.O. is no longer in effect, and the respondent---the other party---can “resume dancing”, and do what it wants to do.
Or the court orders the issuance of a writ of preliminary injunction.
The effect of this writ is to continue the effectivity of the T.R.O.
But in this Meralco-GSIS case, none of these two “normal” occurrences happened.
Instead, a DECISION of the case was rendered.
Worse, it was rendered BEFORE the lapse of the effectivity of the 60-day T.R.O.
This is highly unusual. Uncharacteristically speedy.
Why?
To me, this is the one that raises eyebrows.
But I can venture a technical but simplistic explanation: Whether deliberately or not, the rendering of the decision had a crucial “pre-emptive” effect.
In our dialect: “Gi-unhan.”
(I’ll blog next time….)

Limkaichong-Paras oral arguments at Supreme Court

I picked up the following news story, in the Inquirer website, of the legal battle between Rep. Joselyn Limkaichong and the wife of ex-Rep. Jing Paras.
The news is that the case will be set for oreal arguments on August 12, 2008 before the Supreme Court. Here is the Inquirer story:

Status of Negros Oriental solon to be argued before SC

By Tetch Torres
INQUIRER.net
First Posted 19:53:00 07/29/2008

MANILA, Philippines -- The Supreme Court has granted Negros Oriental Representative Jocelyn S. Limkaichong’s request for an oral argument of the case she filed on the conflicting Commission on Elections (Comelec) decisions on her status as an elective official.
The high court en banc set the oral argument for August 12 after Limkaichong, through her lawyer, Pete Quirino-Quadra, said it was necessary to clarify issues involving questions on jurisdiction and constitutionality.

“We respectfully pray that the...cases be set for oral argument on the...jurisdictional and constitutional questions that we have raised,” Limkaichong said.
Limkaichong, who ran and won under the administration Lakas-Christian Muslim Democrats, won by 7,746 votes over her rival Olivia Paras, and less than 40,000 votes over former representative Jerome Paras, in the May 14, 2007 elections.
The four cases filed over Limkaichong’s elective status -- the one she filed and those filed by Louis C. Biraogo, Renald Villando and Olivia Paras -- have been consolidated.
Limkaichong refuted the arguments of her rivals that the June 29, 2007 Comelec en banc resolution affirming the May 17, 2007 resolution of the poll body’s second division disqualifying her is final and executory because of her failure to file a petition for certiorari within five days from the promulgation of the en banc resolution.
She said she received the June 29 en banc resolution on July 3 and filed a petition for certiorari before the high court on August 1, within the reglamentary period of 30 days.
Limkaichong also urged the Supreme Court justices to resolve the conflicting decisions of the Comelec involving her candidacy and proclamation.
She was referring to the May 17, 2007 resolution of the Comelec second division and the evenly divided June 29, 2007 Comelec en banc resolution affirming the second division resolution disqualifying her from running for a seat in the House.
A day after the May 17 resolution was issued, the Comelec en banc promulgated Resolution No. 8062, ordering a “suspension of proclamation of winning candidates with pending disqualification cases...without prejudice to the continuation of the hearing and resolution of the involved cases.”
“These conflicting rulings of the Comelec on Limkaichong’s proclamation and the disqualification cases need to be clarified by our Honorable Justices during the oral argument. These vital issues must be resolved by the Court, in the interest of substantial justice,” the solon’s petition said.

Holidays are anti-poor

I woke up this morning to be greeted by news that classes in all levels in Metro Manila are suspended.
The official reason for the suspension of classes is supposed to be the typhoon, which is not passing the country, but headed for Taiwan.
Then, after lunch, I went to the city prosecutors office for a hearing.
Offices too were suspended there.
According to a staff member, the Department of Justice declared a half-day for all DOJ personnel and that included the staff members of the prosecutor's office.
Then I remembred that today is the state of the nation address.
I don't know why schools and offices have to be suspended when the President delivers the state of the nation address.
The people already know the state of the nation.
This is a nation of holidays too.
In the coming month of August, there are already two scheduled holidays, August 18 and 25.
We need to have more work days, not holidays.
Holidays are detrimental to the lowest paid members of the country's workforce---the daily wage earners, the casuals, the non-regulars.
If it is a holiday, its no-work-no-pay for them.
For each holiday, hardly will they be able to bring food on the table for their families.
Scrap those worthless holidays.

Twin requirements under Maceda Law

With all due respect to this law, R.A. 6552, it could've scribbled clearer phraseology.
Fortunately, the Supreme Court has ruled on cases which make things clearer.
In a nutshell, there are twin mandatory requirements that a seller must do in case the buyer defaults in installments.
First is a notarial notice of cancellation.
Second, seller must refund the cash surrender calue, in accordance with the forumla stated in the law, which generally, is fifty percent of all the paid installments.

The Maceda Law

A client was inquiring what rights she may have left after having defaulted in the monthly installments of her residential condominium unit. She said she has already paid more than P1.5-million in installments. She is asking whether she can still get back the installment payments she had already made.
I think the Maceda Law comes into play to this query.
Republic Act No. 6552 is a law that seeks to protect buyers of realty on installments.
It is popularly known as the Maceda law, in attribution to its author.
If one is a buyer of real estate, including residential condominium, on installments, the buyer may still retain certain rights even if he defaults in his payments.
If the buyer has already paid at least two years installments, he has two rights under the Maceda law.
First, he can continue paying the unpaid installments due without additional interest.
He must pay within the grace period.
The grace period is one month for every one year of installments paid.
Second, his other option is he can get a cash surrender value, or refund of the installment payments made.
He can get a refund of fifty percent of his total installment payments.
The buyer can opt for the cash surrender value or refund if the contract is canceled.
If the buyer has paid less than two years installment, his option is to continue paying the installments.
The seller has to give the buyer a grace period within which to continue paying the installments due.
The grace period is not less than sixty days.

Adverse claim

An adverse claim is a legal remedy for any person who may have a stake or claim upon registered property.
A person who has a claim upon a certain real property will make a sworn statement and file it with the register of deeds.
The register of deeds will inscribe the claim in the title so that the entire world will be informed that there is a person making a claim over a certain property.
The adverse effects of any adverse claim is that persons will be wary in dealing with registered property with an inscribed adverse claim.
Banks for instance, will not easily approve loans where the collaterals are registered property with an adverse claim.
Actually banks won't.
The general rule is that an adverse claim serves as a warning to people to be careful in dealing with registered property with an inscribed adverse claim.
But my client, Manny, a real estate broker says this general rule is not always applicable and there are exceptions.
He said that registered properties in Fort Bonifacio, Taguig for instance have adverse claims from the city of Makati.
This means that for every title of real property in Taguig, the city of Makati registered an adverse claim.
Manny says people dealing with real properties in Taguig always make sure that the titles have adverse claims by the city of Makati.
If there is no such adverse claim, a doubt ensues on the authenticity of the title.
Manny says people feel more secure if the titles of properties in Fort Bonifacio have adverse claims by the city of Makati.
This means that the property is genuine.
It means the property is valuable.
It is coveted.
Weird, right?

Tu Quoque

Today, I was reading numerous pleadings filed by opposing counsels in cases I am handling.
For a while I thought I would get cross-eyed in these readings.
But one pleading stood out.
The opposing counsel engaged in Tu Quoque.
Tu Quoque is one of many fallacious arguments engaged by lawyers.
I successfully asked the court to dismiss a case because the opposing party and counsel did not appear when it was their time to present their evidence.
Upon motion for reconsideration, the opposing counsel argued that I, too, asked for cancellation or postponements of hearings in the past.
This is a classic reliance of the Tu Quoque argument, a fallacy.
Translated, it means "you, too" or "you're another".
It is a diversionary tactic. It evades the issue at hand.
Tu quoque is a fallacious argument because it is really irrelevant whether I called for postponement of hearings in the past.
That I asked the court to postpone hearings in the past has no bearing on the issue at hand which is the failure of the opposing counsel to appear at the scheduled trial.
Tu quoque is also known as Red Herring. It also is part of that broader fallacy called argumentum ad hominem (argument against the person, instead of the issue).
Almost everyone engages in Tu Quoque arguments (even Osama Bin Laden).
It is a defense mechanism.
It is akin to the concept of "in pari delicto".
Here is a Tu quoque argument raised by Osama Bin Laden in an interview:http://www.fallacyfiles.org/tuquoque.html

Jurisdiction: Quieting of Title

Question: In a case of quieting of title, which court exercises jurisdiction?

Answer: It depends.

Determine the assessed value of the land involved.

The governing law is Republic Act No. 7691, entitled “An act expanding the jurisdiction of the metropolitan trial courts, municipal trial courts, and municipal circuit trial courts, amending for the purpose Batas Pambansa, Blg. 129, otherwise known as the "Judiciary Reorganization act of 1980”

Take note of the expansion of the jurisdiction of Metropolitan / Municipal Trial Courts and circuit trial courts.

Section 3 of Republic Act No. 7691 states:

“Section 3. Section 33 of the same law is hereby amended to read as follows: Section 1 of R.A. 7691 states:

Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases. — Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

"(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions;

"(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession; and

"(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the ASSESSED VALUE of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That in cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots."

It is clear that the assessed value of the property involve is a determining factor in matters of jurisdiction.

So that if you file a case of quieting of title in the municipality of Daanbantayan, where the assessed value indicated in the tax declaration is P1,250, then the municipal circuit trial court of Daanbantayan exercises jurisdiction.

If the old law were to be followed, there would have been a different result.

Batas Pambansa Blg. 129, Section 19 stated:

“Section 19. Jurisdiction in Civil Cases. — Regional Trial Courts shall exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;

(2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;”

Under the old law, in any kind of civil action involving real property, jurisdiction unqualifiedly would have been with the Regional Trial Court.

Now, one has to qualify and determine first the assessed value of the property involved.