VINTA LEGIS FRAT - UM Law: August 2010

Monday, August 30, 2010

Good Luck Vinta Legis members!!!

Do's and Dont's of Dozing

Napping at work has become acceptable at some companies. Yet pulling off a "productivity nap" at the office isn't easy. Here are suggestions from sleep scientist Dr. Sara Mednick, author of Take a Nap! Change Your Life.

1. Make Time and Space

Twenty to 30 minutes is all you need to reap the rewards of midday slumber. The best time is the early afternoon when your body is tired—so consider reserving the second half of your lunch break for shut-eye. If your employer doesn't have a nap room, a yoga mat beats a bathroom stall, though the most comfortable option may be a parked car.

2. Set the Proper Conditions

In the dark our brains produce more of the sleep-inducing hormone melatonin, so close the blinds, turn off the lights, and consider using a sleeping mask. Keep the temperature on the warmer side. If you must nap sitting up, use a travel pillow to avoid the dreaded "nap nod." And don't forget to turn off your cell phone.

3. Careful With the Chemicals

Avoid caffeine for a few hours before a nap. The same goes for nicotine, diet pills, and antidepressants. Although alcohol makes it easier to nod off during the day, it interferes with sleep and should also be avoided. Refined sugars and carbs may keep you up, but meat, dairy, and some nuts have tryptophan, which our bodies break down into melatonin.

Thursday, August 12, 2010

COVERAGE OF THE BAR EXAMINATION 2010

POLITICAL AND PUBLIC INTERNATIONAL LAW

SEPTEMBER 5, 2010

(First Sunday, Morning)

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and

amendments promulgated up to 31 December 2008

to Republic Acts, Presidential

Decrees and Executive Orders,

covering the following subjects:

1. Constitutional Law

2. Political Law

3. Administrative Law and Law on Public Officers

EXCLUDE Implementing rules and regulations of different agencies;

Laws on Suffrage

(a) Party-List Law (R.A. 7941)

(b) Omnibus Election Code of the

Philippines

(B.P Blg. 881)

(d) R.A. 7166 – An Act Providing for Synchronized National and

Local Elections and For Electoral Reforms

4. Local Government Code (R.A. No.7160) (Basics)

EXCLUDE: Provisions Relating to Local Taxation)

5. Public Corporations

7. Public International Law

LABOR STANDARDS/TERMINATION LAW AND

SOCIAL LEGISLATION

September 5, 2010

(First Sunday, Afternoon)

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and amendments promulgated up to 31 December 2008 to Republic Acts, Presidential

Decrees and Executive Orders, covering the following subjects:

I. Labor Laws (Labor Standards Law and Labor Relation Law)

(a) Labor Code of the

Philippines

(P.D. No. 442, as amended).

Books I, II, III, V, VI and VII

~~EXCLUDE: Book IV~~

(b) Thirteenth (13th) Month Pay Law (P.D. No. 851, as amended)

Philippines

(Limited to cases decided by the Supreme Court)

(d) Guidelines for the Exercise of the Right to Organize of Government Employees, etc.

(Executive Order No. 180, June 1, 1987).

II. Social Legislation

(a) Social Security Act of 1997 (R.A. No. 8282)

(b) Government Service Insurance Act of 1997 (R.A. No. 8291)

EXCLUDE:

(a) Employees Compensation and State Insurance Fund.

(b) Comprehensive Agrarian Reform Law

CIVIL LAW

September 12, 2010

(Second Sunday, Morning)

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and amendments promulgated up to 31 December 2008 to Republic Acts, Presidential

Decrees and Executive Orders, covering the following subjects:

1. Civil Code of the

Philippines

INCLUDE

The Law on Sale of Subdivision Lots and Condominium

(P.D.No. 957) and the Condominium Act (R.A. 4726)

(Basic Principles of Law)

EXCLUDE the following:

(a) Code of Muslim Personal Laws of the

Philippines

(P.D. No.1083)

(b) Water Code (P.D. 1067)

(d) Intellectual Property Law

2. The Family Code of the

Philippines

EXCLUDE Child and Youth Welfare Code (P.D. 603)

3. Domestic Adoption Act of 1998 (R.A. No. 8552)

4. Inter-Country Adoption Act of 1995 (R.A. No. 8043)

5. Property Registration Decree (P.D. No. 1529)

INCLUDE Public Land Law (C.A. No. 141, as amended)

6. Conflict of Laws (Private International Law)

TAXATION

September 12, 2010

(Second Sunday, Afternoon)

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and amendments promulgated up to 31 December 2008 to Republic Acts, Presidential

Decrees and Executive Orders, covering the following subjects:

1. General Principles of Taxation

2. National Internal Revenue Code

INCLUDE

(a) Comprehensive Tax Reform Act of 1997

(R.A. No. 8424)– Provisions in effect

(b) All Value Added Tax (VAT) laws in effect

EXCLUDE

Percentage Taxes, Excise Taxes and Documentary Stamp Taxes

3. Tariff and Customs Code

EXCLUDE Arrastre and Classification of Commodities

4. Republic Act No. 1125, Creating the Court of Tax Appeals, as amended

5. The Local Government Code on Taxation

MERCANTILE LAW

September 19, 2010

(Third Sunday, Morning)

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and amendments promulgated up to 31 December 2008 to Republic Acts, Presidential

Decrees and Executive Orders, covering the following subjects:

1. Code of Commerce

(a) Letters of Credit under the Code of Commerce

(Articles 567-572)

INCLUDE the following:

(i). The Warehouse Receipts Law (Act No. 2137 in relation to

the General Bonded Warehouse Act [Act No. 3893])

(ii). Presidential Decree 115 on Trust Receipts

2. Negotiable Instruments Law (Act No. 2031)

3. Insurance Code (P.D. No. 1460)

INCLUDE

Philippine Deposit Insurance Corporation Act

(R.A. 3591, as amended)

4. Transportation Laws

(a) Common Carriers (Civil Code, Arts. 1732 to 1766).

(b) Commercial Contracts for Transportation Overland

(Code of Commerce, Arts. 349 to 379)

also Arts. 580-584 of Code of Commerce, as superseded by

R.A. No. 6106; Arts. 806 to 845 of Code of Commerce;

Paragraph 6 of Section 3 of Carriage of Goods by Sea Act

[Com. Act 65])

(d) Public Service Act (Com. Act No.146), as amended.

(e) The Warsaw Convention of 1929

(Limited to the Carrier’s Liability).

5. Corporation Law

(a) The Corporation Code (B.P. Blg.68)

(b) Securities Regulation Code (R.A. 8799)

i) The New Central Bank Act (R.A. No. 7653) (Basics)

ii) Law on Secrecy of Bank Deposits

(R.A. No. 1405, as amended)

iii) General Banking Act (R.A. 8791)

6. Intellectual Property Code (R.A. No. 8293)(Basics)

EXCLUDE:

Implementing Rules and Regulations

7. Intra-Corporate Dispute and Controversy

(Rehablitation Law)

EXCLUDE: Insolvency Law

8. Special Laws

(a) The Chattel Mortgage Law (Act 1508 in Relation to Arts. 1484,

1485, 2140, and 2141 of the Civil Code)

(b) Real Estate Mortgage Law (Act No. 3135, as amended by R.A.

No. 4118)

EXCLUDE the following:

(1) Omnibus Investment Code of 1987 (Executive Order No. 226)

(2) Foreign Investment Act of 1991 (R.A. No. 7042)

CRIMINAL LAW

September 19, 2010

(Third Sunday, Afternoon)

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and amendments promulgated up to 31 December 2008 to Republic Acts, Presidential

Decrees and Executive Orders, covering the following subjects:

1. The Revised Penal Code (Books I and II), as amended.

EXCLUDE: Penalties for specific felonies

2. Indeterminate Sentence Law

3. Probation Law

4. Anti-Graft and Corrupt Practices Act

(R.A. No. 3019, as amended)

5. Anti-Fencing Law (P.D. No. 1612)

6. Bouncing Checks Law (B.P. Blg. 22)

7. Dangerous Drugs Act of 2002 (R.A. No. 9125, as amended)

8. Heinous Crimes Act (R.A. No. 7659, as amended)

9. Anti-Money Laundering Act of 2001 (R.A No. 9160)

EXCLUDE: Civil Forfeiture Rules

REMEDIAL LAW

September 26, 2010

Fourth Sunday, Morning

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and amendments promulgated up to 31 December 2008 to Republic Acts, Presidential

Decrees and Executive Orders, covering the following subjects:

1. The Rules of Court, as amended

(a) 1997 Rules of Civil Procedure

(b) Revised Rules of Criminal Procedure

(effective December 1, 2000)

INCLUDE:

i) DNA

ii) Electronic

(d) Rules on Special Proceedings

2. The 1991 Revised Rules on Summary Procedure

3. Local Government Code on Conciliation Procedures

(Book III, Title I, Chapter 7)

4. The Judiciary Reorganization Act of 1980

(B.P. Blg. 129), as amended by R.A. No. 7691

and rules issued thereunder

(emphasis on jurisdiction excluding purely

administrative provisions)

EXCLUDE:

Quasi-Judicial Bodies

5. Judiciary Act of 1948

EXCLUDE the following:

(a) P.D. No. 946 (Reorganizing the CAR)

(b) Military Justice

6. Jurisdiction of Sandiganbayan

(a) R.A. No. 7975

(b) R.A. No. 8249

7. The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC)

8. The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC)

LEGAL ETHICS AND PRACTICAL EXERCISES

September 26, 2010

(Fourth Sunday, Afternoon)

This examination covers decisions of the Supreme Court, promulgated up to 30 June 2009, and amendments promulgated up to 31 December 2008 to Republic Acts, Presidential

Decrees and Executive Orders, covering the following subjects:

1. Code of Judicial Conduct

2. Code of Professional Responsibility

3. Grievance Procedures (Rule 139-b, Rules of Court)

4. Legal Forms

Lawyers Call for Sobriety on Alleged Plagiarism Issue

Various prominent lawyers took the cudgels for the Supreme Court as they called for sobriety on the alleged plagiarism issue while awaiting for the result of the investigation of the SC Ethics Committee.

In a statement, Ateneo Law School Dean Cesar L. Villanueva said that the SC’s Ethics Committee has assumed proper jurisdiction over the matter and that the public “should abide by the findings and its recommendations to the Supreme Court en banc.”

“Any call or demand for the resignation of Mr. Justice Del Castillo at this time when the committee has just began its work is not fair, and prejudges the case against a Justice of the Republic even before he has been given the constitutional right to defend himself. It also undermines in the public’s mind the results, findings and recommendations of the committee,” Dean Villanueva said.

In his Facebook account, Fr. Joaquin Bernas said that: “There is a call from quarters for Justice Mariano del Castillo to resign because of a charge of plagiarism. But the case is with the Supreme Court now. Let us wait for the verdict of the Court. Like everyone else, Justice del Castillo is entitled to due process.”

Former Pamantansan ng Lungsod ng Maynila College of Law Dean Ernesto L. Pineda described as “premature” the call of UP Professors led by Dean Marvic Leonen of the UP College of Law for the resignation of Justice Mariano del Castillo.

“It is improper to put pressure upon the Committee in the performance of its duties. The situation is akin to a subjudice matter. The Committee resolution must first be awaited which we understand, would be submitted to the Supreme Court en banc for appropriate action….The Committee is in the best position to evaluate the issue of whether or not there is plagiarism. The concurrence of the members of the Committee to the Vinuya decision is not material because plagiarism was not an issue when they decided the case. Expectedly, the Committee will limit itself to the issue of plagiarism without touching on the merits of the case regarding the pending motion for reconsideration in the case,” Dean Pineda said.

Meanwhile, Philippine Constitutional Assembly (Philconsa) President Manuel “Lolong” Lazaro said that the uploading in the internet of the alleged plagiarism “to place the ponente, the Court and the country in a bad light before the whole world” has caused and will continue to cause embarrassment and ill perceptions of the Supreme Court and its justices, the integrity of the legal profession and our country. The uploading in the internet has unduly brought into disrepute the honesty, integrity and competence of the Supreme Court.

Lazaro stressed that “the ratio decidendi of the decision can stand legal scrutiny sans references to the articles plagiarized. The alleged plagiarism uploaded in the internet constitute direct contempt or contempt in facie curiae, a violation of the lawyers oath and a transgression of the Code of Professional Responsibility for which the person(s)/responsible must be made accountable.”

“The reprehensible and unorthodox resort of the internet must be address quickly and properly to avert its repetition to save the judicial system from further disrepute,” he said.

Lazaro has urged the members of the bar to be more prudent and cautious in hurling accusations against the Supreme Court or any of its MEMBERS so as to preserve and protect the institution that has embodied our highest aspirations for the attainment of justice.”

Philippine Association of Law Schools (PALS) President and Xavier University Law School Dean Raul Villanueva said that the public should “let the judicial process take its course.”

“We trust our SC and leave to the better judgment of the ethics committee members and the whole court,” Dean Villanueva said. The PALS is composed of more than 85 law schools all over the country. Its opinion is hands down the most powerful view of the legal academic community and a true reflection of the sentiments of the academe.

In the meantime, Justice del Castillo has informed Chief Justice Renato C. Corona and the Associate Justices that he is inhibiting from further participation in the Vinuya case in light of “the allegations that have been thrown against [him],” and to disabuse the minds of parties as well as the public of any bias or partiality on his part.

Noteworthy projects

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated August 13, 2010 12:00 AM Comments (0)

Last week’s column, “Partners in Service” (Philippine STAR Aug. 6, 2010) regarding the non-government sector’s part in the task of nation building and the development of a just, peaceful and progressive society really needs further write-ups. For there are indeed many other Rotary districts and clubs as well as individual Rotarians who are engaged in various projects and activities significantly contributing to the peoples’ welfare and promoting the common good. They show their allegiance to the Rotary creed not only by words but by example.

While they prefer to remain anonymous, the beneficial and far reaching effects of their activities have already generated so much attention and goodwill as to be left un-noticed and un-acclaimed. Worth writing about are two of the most important ones undertaken by the organization itself and by an individual Rotarian.

The Rotary organization project is the existing working alliance between all Rotary clubs in the Philippines and the Philippine National Police (PNP) for the promotion of peace and order in the country. It is called “Rotary Watch” which is a national volunteer program by Philippine Rotarians who have more mobility and immediate access to communications facilities to assist our law enforcers in the identification and reporting of various offenses and infringements of the law. Thus Rotary Watch volunteers are tasked to identify and report to the PNP matters relating to reckless driving, smoke belching, traffic infringement, mulcting, drug abuse and other crimes as they occur. The beauty of this project is that it also aims to advocate and increase the level of citizens’ awareness that maintenance of peace and order is as much the community’s responsibility as that of the police. In addition it also aims to reduce the citizens’ level of tolerance towards those who break the law more specifically motoring and traffic violations, so that the community will be more conscious of the correctness of obeying the laws and the Filipinos as a whole will become part of solving our peace and order problems.

Last June 29, 2009, this working alliance with the PNP was formalized with the signing of the memorandum of agreement between PNP Chief Jesus Verzosa and the Rotary Watch Chairman and Chief Administrator, Albert MG Garcia, past president of the Rotary Club of Forbes Park, District 3830. With the signing of the MOA the 804 Rotary Clubs with 21,490 members nationwide will increase the capability of the police as the eyes and ears of the civil society. They will work closely with the Police Community Relations Group headed by Chief Nicanor Bartolome who also happens to be the president of the Rotary Club of Camp Crame. The 4,858 women Rotarians with specific female concerns can also help in solving certain women issues in matters of peace and order.

More importantly, Rotary Watch has identified the PNP family as a community beneficiary for the Rotary Club’s various humanitarian services such as the medical and dental missions, and community improvement programs. The free legal services by lawyer Rotarians as supplemental legal support to the PNP is also under study by the PNP Legal Office under Gen. Ubalde. This sub-project under Rotary Watch is called: “Alagaan and Alagad”.

Rotary Watch started about 10 years ago as a project of the Rotary Club of Forbes Park, implemented in alliance with the Makati City Police. It is now adopted as a national Rotary project of the 10 Rotary Districts in the Philippines given its significance as a community project. The project motto is “Obey the Law Rotary Watch”.

The other noteworthy work, this time by an individual Rotarian, is the publication of a book that is of great importance to our country and a big help to our present leaders especially in effecting the necessary reforms that promises to improve governance and minimize if not eradicate corruption. This is the book entitled “Constitutions of the Philippines and Basic Documents”, Revised Edition authored by Past District Governor (PDG) of District 3780, Constantino “Tinnex” G. Jaraula.

PDG Jaraula is not only a Rotarian but one of the better politicians who started as Councilor in Cagayan de Oro City (1988-98) and subsequently became a Congressman in the 11th, 12th and 13th Congresses from 1990 to 2007. During his tenure in Congress he really stood out as one of our more effective and productive legislators especially because of his expertise in Constitutional Law, Political Law and International Law. His last stint in public service was in 2007 to 2010 when he served as the City Mayor of Cagayan de Oro City. He also belongs to the academe having been a professor of Political and International Law in Xavier University and Liceo de Cagayan. His credentials really qualify him to write this important book with his own commentaries and annotations.

“Constitutions of the Philippines and Basic Documents” was originally launched in 1996 on the occasion of the centennial celebration of Rizal’s martyrdom. Atty. Jaraula thought of revising and re-launching it at this time because of the renewed clamor for changing our present Charter. The book is a compilation of the various charters or proposed charters and other basic documents that have played important roles in our country’s history and in the birth and growth of our nation starting with the Constitution of La Liga Filipina by Dr. Rizal.

These documents will really be a big help in amending and revising our Charter and coming up with a more basic and permanent one. Apparently the author is one of the staunch advocates of charter change because as he said, the other alternative of changing the people to run our government instead of changing the system has apparently failed. We did it in 1986 but there was hardly any improvement. We change them again in 2001, but it became worse because even “good people become bad under a defective system”.

Wednesday, August 11, 2010

Continental Steel Mfg. Corp vs. Montano et.al. etc., G.R. 182836, October 13, 2009

Brazen move
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated August 12, 2010 12:00 AM Comments (2)

As expected, and despite protestations to the contrary, they are now floating the idea of legalizing abortion or the taking of the life of an innocent, defenseless, unborn child in the mother’s womb. This latest move just confirms the long held view that the so-called reproductive health and reproductive rights of women, provided for in the RH bill, necessarily presupposes access not only to contraception but also to abortion.

This is indeed a brazen and aggressive move as it is directly in violation of the constitutional mandate protecting the life even of an unborn child in the womb (Article 2, Section 12). In fact in this latest case, the Supreme Court has clearly and categorically declared that the term “child” as used in this Section includes the unborn fetus in the mother’s womb.

This is the case of Rolly, an employee of a steel manufacturing company (CSMC) and a member of a labor union (Union) which has a collective bargaining agreement (CBA) with CMSC. Among the provisions in the CBA are the grant of 7 to 11 days bereavement leave with pay and death and accident benefits amounting to P11,550 to any employee in case of death of the employee’s legitimate (dependent) parents, spouse, children brothers and sisters.

On January 5, 2006, Rolly’s wife Fe who was then on the 38th week of pregnancy had a premature delivery. According to the Certificate of Fetal Death dated January 7, the female fetus died during labor due to fetal Anoxia secondary to utero-placental insufficiency.

So on January 9, 2006 Rolly filed a claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent pursuant to the CBA. CSMC granted Rolly’s claim for paternity leave but denied his claims for bereavement and other death benefits particularly the death and accident insurance.

According to the CSMC, the CBA did not contemplate the death of an unborn child, a fetus without legal personality. It reasoned out that a fetus that was dead from the moment of delivery was not a person at all. Hence the term dependent could not be applied to a fetus that never acquired juridical personality. A fetus that was delivered dead could not be considered dependent since it never needed any support, nor did it ever acquire the right to be supported. Was CSMC correct?

No. The rights to bereavement leave and other death benefits in the instant case pertain directly to the parents of the unborn child upon the latter’s death. While the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die.

Death is the cessation of life. Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death.

Likewise, the unborn child can be considered a dependent under the CBA. Even an unborn child is a dependent of its parents. Rolly’s child could not have reached 38-39 weeks of its gestational life without depending upon its mother for sustenance. The CBA did not provide a qualification for the child dependent, such that the child must have been born or must have acquired civil personality. Without such qualification, then child should be understood in its more general sense, which includes the unborn fetus in the mother’s womb. So Rolly is entitled to the bereavement leave pay of P4,939 and other death benefits amounting to P11,550.

Tuesday, August 10, 2010

Dontogan vs. Pagkanlungan Jr., A.M. P-06-2620. October 9, 2009. 603 SCRA, 98

Exacting standards
A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated August 11, 2010 12:00 AM Comments (0)

In a previous case, simple misconduct of officials and employees involved in the administration of justice has been illustrated and defined. This case now defines “gross misconduct” and fixes its imposable penalty.

This case involved the Process Server of a Municipal Trial Court in a remote town (Jun) who also operated a boarding house for other government employees. Oftentimes Jun could be seen smoking within the court premises or would leave his post during office hours.

On November 30, 2006, at about 11:55 a.m. he left the court premises and proceeded to his house to take lunch. Before eating Jun and Jim, one of his boarders employed as agricultural officer, drank one bottle of Beer Grande. Then when Ely a subordinate of Jim in the agricultural office arrived, Jun ordered a bottle of long neck Gran Matador brandy as Ely cooked lunch for them. Later on after lunch, Jun and Jim also consumed a bottle of whiskey.

Thereafter, between four and five in the afternoon, Jun was back in the court premises along the corridor near the office of Lita the court stenographer. Then when the court employees had left except Lita and Jun, the latter, who appeared to be still drunk, kissed Lita on the lips after telling her “I love you”. According to Lita, the kiss was so hard and evidently prompted by lust that it even left a red mark on her upper lip.

Following the kissing incident, Lita filed an administrative letter-complaint for misconduct and a criminal case for acts of lasciviousness against Jun. Acting on the said complaint the Office of the Court Administrator referred the same to the Regional Trial Court Executive Judge of the Province for investigation, report and recommendation.

In the investigation, Jun flatly denied the charges against him. He submitted the same affidavit he filed in connection with the criminal complaint for acts of lasciviousness where he claimed that he and Lita were civil, if not friendly towards each other. He said that on the afternoon in question, Lita even offered him merienda and that nothing happened between them.

But after investigation the Executive Judge believed Lita’s positive testimony than Jun’s mere denial. The Judge came to the conclusion based not only on Lita’s statements but on the affidavits of other witnesses particularly the Clerk of Court who declared that while discussing with Jun his performance rating, the latter admitted that he indeed kissed Lita but only on the cheek which was just a minor thing. Then there was also the statement of Ely who confirmed that Jun and his drinking partner Jim were really drinking that afternoon. So the Judge found Jun guilty of lascivious conduct compounded by the fact that he was drunk during office hours which was apparently not the first time it happened. The judge also reported that Jun had admitted that he smoked within the court premises during office hours and left for lunch during office hours. So the Judge recommended Jun’s suspension for six months. Was the judge correct?

The finding of the investigating judge as to Jun’s lascivious conduct is well-taken. Compounding Jun’s acts of lasciviousness and drunkenness during office hours, were, by his own admission, his smoking within the court premises and leaving his post during office hours in violation of Supreme Court Administrative Circular No. 9-99.

A court employee who commits lascivious acts against a fellow employee is guilty of gross misconduct and immorality prejudicial to the best interest of the service. Jun’s gross misconduct and immorality not to mention his violation of the SC Circular merit his dismissal. The exacting standards of morality and decency expected of those in the service of the judiciary must be maintained, failing which the respect and confidence in the judiciary will be eroded.

So instead of mere 6 months suspension, Jun should be dismissed from the service with forfeiture of all retirement benefits and with prejudice to reemployment in any branch of government including government owned and controlled corporation.

Leyrit et. al. vs Solas etc, A.M. P-08-2567 and P-08-2568, October 30, 2009, 604 SCRA, 668

Heavy responsibility

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated August 10, 2010 12:00 AM Comments (1)

All employees and officials involved in the administration of justice, from judges to the most junior clerks, must always be guided by strict propriety and decorum in their conduct in order to merit and maintain the public’s respect for and trust in the judiciary. This case of a Clerk of Court of a Municipal Trial Circuit Court (MTCC clerk) who was administratively charged, among others, of harassment and grave misconduct by 13 employees in the Office of the Clerk of Court (OCC), illustrates this rule. It also explains what constitutes simple misconduct.

The MTCC clerk was apparently not personally close to the 13 employees in the OCC (complainants). He had been suspicious and irritable in dealing with them professionally, thus affecting the smooth and efficient discharge of the functions in the OCC.

In the investigation of their complaints by the Regional Trial Court (RTC) Executive Judge, complainants testified that the MTCC clerk had shouted at and uttered vindictive words against them and even humiliated them while doing their job and attending to the needs of the public. The MTCC clerk could not rebut such testimonies. To exonerate himself he could only impute malicious motive to the said complainants, averring that they merely had an axe to grind against him and that they had defied, disobeyed and refused to recognize him as head of the OCC-MTCC.

After investigation and despite the fact that the MTCC clerk opted to avail himself of early retirement, the Executive Judge found him guilty of failing to conduct himself with propriety, moral righteousness and decorum by scolding, embarrassing and for being abrasive to his subordinates. Was the Executive Judge correct?

Yes. The explanations of the MTCC clerk do not excuse his actions. His acts are absolutely unbecoming of a court employee who is expected to display proper decorum. The behavior of all employees and officials involved in the administration of justice is circumscribed with a heavy responsibility.

High strung and belligerent behavior has no place in government service, where the personnel are enjoined to act with self-restraint and civility at all times even when confronted with rudeness and insolence. More so is such conduct expected from court employees, since they have to earn and keep the public’s respect for and confidence in the judicial service. This standard of conduct must apply to the court employees dealing not only with the public, but also with their co-workers. How can court employees be expected to treat the public who are mostly complete strangers to them, when they cannot accord the same treatment to one another with whom they closely work on a daily basis?

Agents of the law should refrain from the use of language that is abusive, offensive, scandalous, menacing, or otherwise improper. Judicial employees are expected to accord every due respect not only to their superiors, but also to others and to their rights at all times. These norms are ever so essential in preserving the good name and integrity of the judiciary.

A clerk of court, as the administrative assistant of the presiding judge, is an important functionary of the judiciary. His administrative functions are vital to the prompt and sound administration of justice. He should be a role model for other court employees to emulate in the performance of duties as well as in the conduct and behavior of a public servant. Evidently the MTCC clerk here failed to observe proper decorum in his dealings with his subordinates and to serve as model for other court employees. His irritable and haughty behavior towards complainants affected the latter’s performance which, in turn, harmed the integrity of the entire OCC-MTCC.

While complainants may have indeed defied and disobeyed him, he should have taken the higher ground and resisted the urge to retaliate with similarly disrespectful behavior. He would not gain the respect and obedience of his subordinates by merely demanding the same and wielding an iron hand in the office.

Hence the MTCC clerk failed to live up to the norms of conduct demanded of his position. He should be held liable for simple misconduct which generally means wrongful, improper, unlawful conduct motivated by a premeditated, obstinate and intentional purpose. He should be fined equivalent to his three month’s salary to be deducted from his retirement benefits.

Sunday, August 8, 2010

Too sweeping

Too sweeping

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated August 09, 2010 12:00 AM Comments (5)

There is no doubt that P-Noy means well for our country. But in a democratic country under the rule of law, extreme care must also be observed in taking steps towards the achievement of the needed and desirable reforms. A President under the system of government like ours really has more powers than most other President of other countries under the same kind of government because of the centralization of authority in the Executive Department. But the Executive Department also shares powers with the Legislative and the Judicial Department.

Under this principle, the most basic and simplest rule is the delineation of power of the three branches. The Legislative branch makes the laws, the Executive branch implements these laws while the Judicial branch interprets them. No branch can encroach upon or exercise the power given to other branches without violating this principle.

Of course there is nothing wrong for the P-Noy administration to undo the many irregularities committed by the past administration. Indeed this is the initial, more imperative move to have a freer hand in effecting the changes it has envisioned. But sincere and well meaning it may be, it should also guard against doing the very same thing that it is trying to undo.

One such action is Executive Order 2 “withdrawing and revoking appointments issued by the previous administration in violation of the constitutional ban on “midnight appointments”. The order appears to be a valid exercise of the executive power because it is just implementing Section 15, Article VII of the Constitution which provides that “two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety”.

Hence if the appointments were issued by the previous administration on or after March 11, 2010 (two months before the last May 10, 2010 elections) up to June 30, 2010 (the end of the term of the outgoing President),they may really be revoked or withdrawn.

Questionable however is that portion of EO 2 which also revokes all appointments issued by the previous administration before March 11, 2010 if the appointee had accepted, or taken his oath, or assumed office on or after March 11, 2010. This is already interpreting the meaning of “midnight” appointments as contemplated by Section 15, Article VII of the Constitution which is the function of the Judiciary.

It is questionable because it violates the basic principle that when the law is clear and unambiguous it should not be interpreted anymore. In this case the law is already clear. It only covers appointments made by the President or Acting President two months immediately preceding the next presidential elections and up to the end of his term.

The ban here is directed on the President. He is prohibited from naming or designating a person to a particular position in departments, agencies, offices, and instrumentalities including government owned and controlled corporations two months before the next presidential election or in this case, on or after March 11, 2010. It is not directed on appointees. It does not say that those who have been appointed before March 11, 2010 must have to accept, take oath or assume the position also before that date; otherwise their appointments also violate the Constitution.

or indeed it may really take time before the appointees receive their appointment papers or even after receiving them, they cannot assume office yet or immediately take the oath or may still be deciding on whether or not to accept the position. Hence it is quite probable that even if they are appointed before March 11, 2010, they are able to accept, take oath or assume office after March 11, 2010. But that does not mean that their appointments are already “midnight appointments”.

Furthermore some appointees covered by EO 2 have already been designated, assumed the position and taken their oath many years before as Officer-in-Charge (OIC). Their appointments were merely regularized. Indeed it is not even necessary for them to accept the position or take oath all over again. So the mere fact that they took their oath once more after March 11, 2010 does render their appointments revocable or withdraw-able on the theory that they are “midnight appointees”.

It is true that the process of appointment requires the appointee to accept, take oath or assume the position. But this process does not affect the validity of the appointments made before March 11, 2010. Said appointments are still valid except that they can still be withdrawn or revoked because the process is not yet complete. But once the appointees have already accepted, taken oath or assume the position even after March 11, 2010, their appointments can no longer be withdrawn, recalled or revoked. They can hold the position up to the expiration of the term of office unless they choose to resign earlier or unless sooner removed for cause provided by law.

EO 2 is therefore too sweeping when it revoked all appointments issued by the previous administration before March 11, 2010 in which the appointees had accepted, or taken oath or assumed the position on or after March 11, 2010. The EO has in effect interpreted the law which is a function of the Judiciary. It should have considered the circumstances peculiar to some appointments and exempted them from coverage. Or better still, instead of the EO, certain appointments which have clear signs of being “midnight” should have been singled out and revoked so as to precipitate a court case and an authoritative interpretation of the law by the proper branch of government.