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Lessons from martial rule

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Addressing a gathering of young human rights advocates from different parts of Mindanao at the Ateneo de Davao University on September 22, Atty. Samuel Matunog, one of the founders of the Philippine Section of Amnesty International, recalled his journey as a lawyer handling urban poor cases and those of victims of human rights violations. Knowledge and courage and faith in the capacity of the youth to seek genuine change are necessary ingredients in the continuing struggle for human rights around the world.

Cybercrime Forum

On the first day of the effectivity of the Philippines’ law against cybercrimes, the law firm of Torres Matunog Gevieso Montero & Associates facilitated an ICT industry forum attended by more than 30 industry leaders. Atty. Samuel R. Matunog was the main presentor. Among the resolutions adopted were to form a special committee to draft recommendations on the law’s implementing rules and regulations and to pursue a dialogue with law enforcement agencies and the Judiciary. Sponsoring the events were Davao City’s DTI and ICT Davao, Inc.

Accusing a judge in a pleading of improper behavior without proof is direct contempt

In a proceeding for the abatement of a public nuisance, the trial court ruled against the petitioner on the ground that the civil proceeding for the abatement of a public nuisance must be commenced by the city or municipal mayor in accordance with Art. 701 of the Civil Code. In his motion for reconsideration, the petitioner accused the presiding judge of communicating with the defendant ex parte, a charge which the court took as contumacious. During the hearing on the motion for reconsideration, the petitioner did not appear. So the presiding judge issued an order requiring the petitioner to show cause why he should not be cited in direct contempt. In his compliance, the petitioner failed to present evidence to support his remark or to withdraw the same. Consequently, the petitioner was cited in direct contempt and ordered imprisoned for two days and to pay a fine of P 2,000, and with it an order of arrest.

Since no appeal is allowed in contempt proceedings, the petitioner filed a motion to post bond and to quash the warrant of arrest on the ground that he has already filed a petition for certiorari with the Supreme Court. The motion was denied by the trial court on the ground that no copy of the petition was attached to the motion showing that indeed such a petition was filed with the Supreme Court consistent with Sec. 2, Rule 71, Rules of Court.

In resolving the petition, the Supreme Court ruled:

(a) A pleading containing derogatory, offensive and malicious statements submitted to the court or judge wherein proceedings are pending is considered direct contempt.

(b) Denial of the ex parte motion to post bond and quash warrant of arrest is proper because the petitioner failed to show proof that he has indeed filed the petition with the Supreme Court, and the records show that the ex parte motion was filed ahead of the petition for certiorari. The presiding judge therefore did not abuse his authority in denying the motion.

(c) Litigants should observe the hierarchy of court in petitions for extraordinary writs. The jurisdiction of the Supreme Court to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction is concurrent with the Regional Trial Court and the Court of Appeals. Recourse to the Supreme Court is one of last resort, and special or compelling reason mus be alleged to warrant direct recourse.

Ferdinand A. Cruz v. Judge Henrick F. Gingoyon, et al., G.R. No. 170404, First Division, September 28, 2011.

 

 

Fax notice sufficient in an administrative proceeding

A national government agency requires the filing with its regional office, within 72 hours, of a notice of its application for mineral exploration. The applicant complied by sending fax copies of the application to the regional office. A claimant asserting priority opposed on the ground that fax copies are insufficient to prove compliance.
In sustaining the Court of Appeals, the Supreme Court ruled:
“Newmont in fact furnished the MGB-CAR Regional Office with copies of its FTAA applications, through fax transmission, within 72 hours from filing of the FTAA applications. Considering the distance between Quezon City and Baguio City where the MGB-CAR Regional Office is located, and the requirement to furnish the proper Regional Office (some of which are located in Visayas and Mindanao) a copy of the FTAA application within a short period of 72 hours, a fax machine copy is a reasonable and sufficient mode of serving a copy of the FTAA application to the proper Regional Office. We note that Section 8 of DAO 63 does not specify how a copy of the FTAA application should be furnished to the proper Regional Office.
“Newmont clearly satisfied the requirements for the acceptance and evaluation of its FTAA applications with the MGB. Being the first to file its FTAA applications ahead of Diamond Drilling’s MPSA application, and having furnished copies of its FTAA applications to the MGB-CAR Regional Office within 72 hours from filing, Newmont must be given preferential right to utilize the area included in its FTAA applications.”
Diamond Drilling Corporation of the Philippines v. Newmont Philippines, Incorporated, G.R. No. 183576, May 30, 2011

No estoppel on tenant when lessor loses ownership after commencement of lease

Here is one case that should be given the widest dissemination to all first level courts.

Notwithstanding Borre v. Court of Appeals, 242 Phil 345, 352 (1988), where the Supreme Court ruled that estoppel against tenants is subject to a qualification, and that it does not apply if the landlord’s title has expired, or has been conveyed to another, or has been defeated by a title paramount, subsequent to the commencement of lessor-lessee relationship [VII Francisco, The Revised Rules of Court in the Philippines 87 (1973)], the conclusive presumption against the tenant in Sec. 2(b), Rule 131, Rules of Court, is often strictly applied without taking note of the qualification.

It is good that once more in  Santos v. NSO, G.R. No. 171129, April 6, 2011, the Supreme Court chose to emphasize the significance of the qualification. Santos owned a parcel of land which he leased to the National Statistics Office. On the third renewal of the lease, NSO refused to pay rentals and refused to vacate despite notice. Santos filed an unlawful detainer case. In its answer, NSO stated that the property of Santos was already foreclosed by China Bank and title was already consolidated in the name of the bank. Since Santos was neither the owner, co-owner, legal representative or assignee of China Bank, landlord or a person entitled to the physical possession of the subject property, he has no legal personality to institute the complaint.

The MTC ruled that NSO’s admission that it was a lessee who failed to pay rent effectively removed its right to question Santos’ title and ownership. On appeal, the Regional Trial Court sustained the MTC. However, the Court of Appeals reversed on review and ruled that Borre applies.

The Supreme Court sustained the CA. The NSO demonstrated by the following documentary exhibits: (1) the Promissory Note executed by petitioner and his spouse in favor of China Bank for a loan of P20 million and the (Real Estate) Mortgage over the subject property; (2) the Petition for Extrajudicial Foreclosure of said Real Estate Mortgage; (3) the Notice of Auction Sale By Notary Public, Certificate of Posting, Affidavit of Publication and Certificate of Sale in favor of China Bank, all in connection with the extrajudicial foreclosure sale of the leased premises; (4) the Affidavit of Consolidation executed by China Bank’s Vice-President to inform the Registry of Deeds of Meycauayan, Bulacan that the one-year period of redemption has expired without petitioner redeeming the property and to request said office to issue the corresponding TCT under the bank’s name; and (5) TCT No. T-370128 (M) issued on August 21, 2000 in the name of China Bank covering the leased property, that the owner of the property is no longer Santos but China Bank. Consequently, following Borre, the conclusive presumption in Sec. 2(b), Rule 131, Rules of Court, does not apply.

Santos v. NSO, G.R. No. 171129, April 6, 2011, First Division.

Court upside down

IN THE Sandiganbayan resolution, also promulgated on May 9, which dismissed the Motion to Intervene in the Carlos Garcia plea-bargain case filed by the Office of the Solicitor General, the anti-graft court’s Second Division intoned: “While the Court is used to be [sic] at the center of conflicting interests, and to be the object of criticism from the losing parties, we have never seen such distortions and prevarications of the facts from people who are expected to be the sentinels of the rule of law.”

Unfortunately for the anti-corruption constituency that helped elect the second Aquino administration, the Sandiganbayan was not referring to the special prosecutors under then-Ombudsman Merceditas Gutierrez, who botched the open-and-shut case against Garcia, but against the critics of the plea bargain and of the Court itself.

Sad but true. Even though Gutierrez and her special prosecutors came to admit under specific questioning in hearings at the Senate and the House of Representatives that they had missed certain evidence or did not follow certain leads, even though it became clear to the lawyers in Congress and to the public at large that certain distortions and prevarications marked the Ombudsman’s entire effort to bring Garcia to justice, even though Gutierrez herself said, under questioning from Sen. Franklin Drilon, that she would consider filing a motion to withdraw the plea bargain agreement in the light of the new evidence and the legal principles being invoked, the Sandiganbayan’s Second Division, speaking through Justice Samuel Martires, still found what it called the “critics” of the plea bargain agreement to be in the wrong, declaring: “We must not be swayed by a public opinion which, no matter how valid and sincere the sentiments may be, is expressed in terms of emotions, if not, from a limited perception and a shallow appreciation of the facts.”

This sounds impressive, but in fact it is completely perverse, because the true adversary of the anti-graft court is not public opinion but graft and corruption. To see the judges wring their hands and then whine, “In fact, we were also amazed at the amount of money that the accused and his family own,” is to witness official inutility. Unexplained wealth of government personnel is prima facie evidence of corruption.

Worse, the justices rationalize their inutility in a way that explains why the corrupt continue to hold sway in the country. “As we have intimated above, we are aware of the existence of a big amount of money in the possession of the accused. But where these sums of money came from was not shown and explained.” Judges living in a vacuum may think that bribes are exchanged with the use of official receipts and record books which government prosecutors must track down, but everyone else knows it is the military general earning a five-digit salary per month but enjoying hundreds of millions in assets who must do the explaining.

To punctuate their discussion of the lack of evidence to determine Garcia’s guilt, the judges said: “It is worth emphasizing that the only evidence which the prosecution has leaned on to prove the predicate crimes is the handwritten letter and sworn statement of Clarita Garcia and the testimony of Heidi Mendoza.” Exactly. Public opinion on the case, which the judges seem to think so little of, is based also on these two sets of evidence; the public just has a different appreciation of their value.

After all, what should the anti-graft court make of Clarita’s confession, made voluntarily and in all candor and innocence before a US official, which described a breathtaking pattern of direct bribery? Surely the public is not wrong to think that Clarita’s confession damns Garcia and his entire family.

What should the court make of Mendoza’s testimony, which described a pattern of official laxity and untold opportunity for graft? Surely the public is not wrong to think that Mendoza’s painstaking audit deepens the guilt of Garcia et al.

This, then, is the real problem: What is the public to make of the Sandiganbayan’s perplexing decision? The issue is not, and has never been, about popularity. It has always been about accountability, about bringing corruption to light and the corrupt to justice. Hiding behind stirring statements expressing independence from public pressure, the justices profess their fealty to duty and the rule of law. In truth, they only deepened public frustration with the fight against corruption.

Editorial. Philippine Daily Inquirer First Posted 22:42:00 05/12/2011

New Rules on Environmental Cases

The Supreme Court yesterday promulgated the Rules of Procedure for Environmental Cases which will serve as a significant catalyst in support of sweeping and far-reaching reforms in environmental litigation and protection.  The Rules are the first of its kind in the world.

The promulgation of the Rules have been highly-anticipated by both the international and domestic community since the Supreme Court held its widely-commended Forum on Environmental Justice last April 16-17, 2009 simultaneously through video-conferencing at the University of the Cordilleras, Baguio City, University of the Philippines-Visayas, Iloilo City, and Ateneo de Davao University, Davao City.  The Forum enabled the Judiciary to receive inputs directly from the different stakeholders in the justice system, primarily aimed at determining ways on how the courts can help in the protection and preservation of the environment.  It was supported by various development partners which include the American Bar Association-Rule of Law Initiative (ABA-ROLI), the Hanns Seidel Foundation, the United Nations Development Program (UNDP), the United States Agency for International Development (USAID), the United States Department of the Interior, and the World Bank.

The 1987 Constitution mandates the right to a healthy environment via Sec. 16, Art. II of the Philippine Constitution which provides that: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” Section 15 of the same Article provides that: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”
Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, (3)environmental protection order, (4) writ of kalikasan, (5) writ of continuing mandamus,(6)strategic lawsuits against public participation (SLAPP) and (7) the precautionary principle.
The provision on citizen suits liberalizes standing for all cases filed enforcing environmental laws.  Citizen suits have proven critical in forcing government and its agencies to act on its duty to protect and preserve the environment. The terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran (G.R. No. 101083, July 30, 1993).  To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. As a procedural device, citizen suits permit deferred of payment of filing fees until after the judgment

The use of a consent decree is an innovative way to resolve environmental cases.  It allows for a compromise agreement between two parties in environmental litigation over issues that would normally be litigated in court, and other matters that may not necessarily be of issue in court.

An environmental protection order refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. It integrates both prohibitive and mandatory reliefs in order to appropriately address the factual circumstances surrounding the case.  This remedial measure can also be prayed for in the writs of kalikasan and continuing mandamus.

Similar to the writs of habeas corpusamparo and habeas data, the issuance of the writ ofkalikasan is immediate in nature. It contains a very specific set of remedies which may be availed of individually or cumulatively, to wit – it is available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.  The petition for the issuance of a writ of kalikasan can be filed with the Supreme Court or with any of the stations of the Court of Appeals.  Likewise, the summary process leading to the issuance of the writ of kalikasan dispenses with extensive litigation; this facilitates the prompt disposition of matters before the court.

Another innovation is the rule on the writ of continuing mandamus which integrates the ruling in Concerned Residents of Manila Bay v. MMDA G.R. Nos. 171947-48, December 8, 2008) and the existing rule on the issuance of the writ of mandamus. Procedurally, its filing before the courts is similar to the filing of an ordinary writ of mandamus. However, the issuance of a Temporary Environmental Protection Order is made available as an auxiliary remedy prior to the issuance of the writ itself.

As a special civil action, the writ of continuing Mandamus may be availed of to compel the performance of an act specifically enjoined by law. It permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the court’s decision. For this purpose, the court may compel the submission of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its decision.

Its availability as a special civil action likewise complements its role as a final relief in environmental civil cases and in the writ of kalikasan, where continuing mandamus may likewise be issued should the facts merit such a relief.

Both petitions for the issuance of the writs of kalikasan and mandamus are exempt from the payment of docket fees.

Since formidable legal challenges may be mounted against those who seek to enforce environmental law, or to assert environmental rights, in light of this, the Rules make available a formidable defense in these by creating a rule on strategic lawsuit against public participation (SLAPP).  . These legal challenges may be pre-emptive in character and may be done in order to “chill” the latter.

Another significant aspect of the Rules that derives from the transboundary and temporal nature of ecological injury is the adoption of the precautionary principle.  In this context, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right the people to a balanced and healthful ecology.

Some important provisions on criminal procedure can also be found under the Rules.
The rule on bail makes available to the accused the privilege of bail from any court, within and outside the jurisdiction of the court which had issued the warrant of arrest. The immediate availability of bail is intended to obviate long periods of detention.

One important innovation under the rule on bail is the execution of an undertaking by the accused and counsel, empowering the judge to enter a plea of not guilty, in the event the accused fails to appear at the arraignment. This authorization permits the court to try the case in absentia, thereby addressing a fundamental concern surrounding the prosecution of criminal cases in general, where the accused jumps bail and the court unable to proceed with the disposition of the case in view of the absence of the accused and the failure to arraign the latter.

Several environmental advocates have lauded the Supreme Court for serving as the major bulwark for fundamental reforms in environmental protection:

Atty. Antonio Oposa, Jr.: “This is a new day for the life sources of land, air and water.  Ordinary citizens like us are now empowered to take legal action where our political leaders will not.  We thank the Supreme Court for this truly landmark achievement, the first of its kind in the world.  It happened during Chief Justice Puno’s stewardship of the Supreme Court.  We salute you, Chief Justice Puno, the entire Supreme Court, and everyone who played a role in the drafting of this milestone for the movement of citizens who care for our sources of life!  You have made a great difference and will forever be remembered for this legacy.  Mabuhay po kayo!”

Atty. Gloria Estenzo Ramos (Global Legal Action on Climate Change): “A new era of nurturing for our threatened natural support system has ushered in with the Supreme Court’s promulgation of the much awaited Rules on Environmental Cases.  This will transform the legal profession and the practice of law in our country and instill a mindset of sustainability among stakeholders, especially the lawyers, government agencies and the corporate sector.  Lawyers will become stewards of both the law and the environment.  The wide gap existing between the law and reality will narrowed down as the trail-blazing remedies such as the writ of kalikasan, writ of continuing mandamus, citizen suit and anti-SLAPP, afforded to the people, ecological stewards and dedicated civil servants will render the violation or non-compliance of environmental laws a very expensive and tedious option.  This legacy of Chief Justice Puno and the justices of the Supreme Court will be enshrined as one of the greatest gifts not just to Filipinos and the future generations of this biodiversity rich nation, but to our climate challenged planet as well.  Mabuhay ang SC!  Mabuhay si Chief Justice Puno!”

Atty. Roan Libarios (Integrated Bar of the Philippines, Governor): “A.M. No. 09-6-8 is a major breakthrough that will finally bridge the wide gap between Philippine environmental protection laws and their enforcement. Mother Nature will rejoice from the innovative legal weapons created and unleashed for its defense by the SC – the citizens’ right, EPO, writs of kalikasan and continuing mandamus. Truly, no other set of rules can match the potency of A.M. No. 09-6-8 in promoting ‘environmental accountability.’ With its potency, it will energize, if not transform the field of legal advocacy in environmental protection.”

The Sub-committee who finalized the Rules was chaired by Chief Justice Reynato S. Puno, its other members include Justice Presbitero J. Velasco, Jr., Justice Diosdado M. Peralta, Justice Lucas P. Bersmain, Justice Ma. Alicia Austria-Martinez (ret.), Commission on Climate Change Commissioner Mary Ann Lucille L. Sering, Judge Myrna Lim-Verano, and the U.S. Department of Interior’s in-country representative, Atty. Asis G. Perez.

The Rules will take effect within fifteen (15) days following its publication once in a newspaper of general circulation (SC En Banc Resolution dated 13 April 2010 in A.M. No. 09-6-8-SC).

From an article written by Abigail T. Tze on this site.

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