There’s a twist in the continuing Marinduque drama involving elected
Rep. Regina O. Reyes and defeated candidate Lord Allan Velasco. While
the Supreme Court decided 5-4 to uphold an earlier resolution of the
Commission on Elections annulling the certificate of candidacy of Reyes
on the basis of a blog entry that she is an American, at least 161
members of the House of Representatives signed a resolution recognizing
the jurisdiction of the House of Representatives Electoral Tribunal to
act as the sole judge of the qualification of Rep. Reyes to sit as a
member of the House.
Previously, the Supreme Court, in what Justice Arturo Brion described
as done with “undue haste to benefit one of us” (Lord Allan is the son
of Senior Associate Justice Presbiterio Velasco) affirmed the decision
of the Comelec despite the fact that during the pendency of the petition
for annulment, Rep. Reyes had already been proclaimed, sworn, and had
discharged her functions as a member of the House. The decision of the
Court, according to at least four dissenting justices, overturned a long
line of jurisprudence that upon proclamation, the HRET remains the sole
judge of all contests involving members of the House of
Representatives. Worse, as observed by Senior Justice Antonio Carpio,
the ruling in Reyes had the effect of amending the Constitution on when
the term of the members of Congress commence. For while the Constitution
specifies noon of June 30, the majority decision in Reyes said that
members of Congress do not commence their term until they have taken
their oath before either the Speaker of the House or the President of
the Senate. As observed by the dissenting opinions, this would mean that
members of Congress have no mandate from noon of June 30 until the day
of the State of the Nation address or the third Monday of July which is
when both houses of Congress organize and where the head of each chamber
administer the oath to its members.
Solita Monsod was right. This is a case where the Court by edict
declared a loser as the winner contrary to the mandate of the sovereign
people of Marinduque.
But two obstacles still stand in the way of the Velascos. First,
the son of the god erred in not impleading the House of Representatives
in the cases filed against Reyes. This means that while Velasco may have
won the support of his father’s peers, that decision is not binding on
the House. Moreover, the bigger challenge now is how the House can
recognize Velasco as one of its members when an overwhelming number of
its members have decided to ignore the ruling of the Court. They have
signified their decision to allow the HRET to decide the issue of Rep.
Reyes’ qualification to sit in the chamber.
This turn of events is unprecedented. Never before has there been an
instance when the Court intruded on an exclusive power of the House, and
never before has Congress rebuffed the Court in the manner that it has
just done so. As a believer in the view that law forms part of a
normative system and is not just the cold application of rules, one
cannot help but wonder whether the Court itself undermined its own
independence and effectiveness by ruling in the manner that it did in
Reyes v. Comelec. I am of the personal belief that the criticism
expressed by the dissenting justices has eroded the reputation and
integrity of the Court itself. It does not help that in the end, a mere
five justices out of 15 voted to favor the son of one of its own.
So are we now facing a constitutional crisis? I do not think so. The
fact that Velasco did not implead the House as a party to his cases made
this a certainty. But we do have a crisis at the moment. For while the
court is believed to be a co-equal branch because of its function to
uphold the supremacy of the Constitution, what happens when a co-equal
branch, applying a long line of jurisprudence set by the court itself,
interprets the Constitution in a manner contrary to that of the court?
Well, this is yet another instance of a political decision taking
precedence over jurisprudence of a court without a popular mandate. And
as former Chief Justice Renato Corona and Former Ombudsman Merceditas
Gutierrez learned in recent years, a political judgment often results in
a political decision to impeach even the gods for the sake of upholding
the Constitution.
May history repeat itself sooner rather than later!
Disclosure: I stood as counsel for Reyes in the afore-discussed case.
source: Manila Standard Column of Atty Harry Roque
Thursday, December 19, 2013
Tuesday, October 29, 2013
PCSO does not contribute to the Presidential Social Fund
With intense public
scrutiny brought to bear on government disbursements, the media have
been hopping and bopping to come up with content that will satisfy the
public thirst for information.
Various news items and columns have centered on the PDAF and the Presidential Social Fund since both issues broke out, but at least one statement being bandied about is untrue – that the Philippine Charity Sweepstakes Office contributes to the PSF.
This misimpression has gained a tenacious hold, reinforced by columnists and reporters who did not even reach out to the PCSO for confirmation.
Even some congressmen were misled. At a hearing of the Lower House Games and Amusements (G and A) Committee last Monday, Committee Chairman Rep. Elpidio F. Barzaga Jr. and other congressmen present were surprised to learn that not a centavo from PCSO has gone into the PSF.
“PCSO must reiterate to the public that they do not give any funds to the PSF,” said Marikina Rep. Miro Quimbo.
PCSO does contribute to certain government agencies through their founding charters. These payments, termed “mandatory contributions,” are made to diverse bodies responsible for a gamut of activities.
Among them are the Commission on Higher Education, National Museum, National Book Development Board, Philippine Sports Commission, Philippine Crop Insurance Corp., National Endowment Fund for Children’s Television, and many others.
The Presidential Social Fund is not among them.
Mandatory contributions are taken from the PCSO’s Charity Fund, which, as allocated by law, is 30 percent of the agency’s revenues. For the rest, 55 percent goes to the Prize Fund for games, and 15 percent to agency operations. (PCSO does not receive anything from the National Treasury for salaries, compensations, or other operational expenditures.)
In 2012, the Charity Fund totaled P9.86 billion. Of that amount, 41.46 percent – almost P4.1 billion- went to mandatory contributions. From January to June 2013, from the P4.84 billion Charity Fund, 59 percent – P2.87 billion – has already been released to various agencies.
Several lawmakers at the G and A hearing last Monday were astounded that nearly half of the PCSO’s fund for medical and healthcare assistance and charities of national character, instead of going to individual patients and institutional beneficiaries, instead supports government agencies that have nothing to do with PCSO’s mandate.
PCSO runs several significant social programs. Foremost is the Individual Medical Assistance Program (IMAP), that gives financial assistance to patients for their medical bills. In the first half of this year, P1.84 billion in approved requests is earmarked for hospitalizations (37.1 percent), dialysis treatments (25.78 percent), and chemotherapy sessions (12.62 percent), with the rest going to medicines, laboratory and diagnostic procedures, hearing aids and transplants, and other forms of treatment.
Through the Institutional Financial Assistance Program (IFAP), hospitals, clinics, orphanages, homes for the aged, and the like are given endowment funds for the medical care of their beneficiaries.
The Ambulance Donation Program gives ambulances to requesting municipalities and government hospitals nationwide.
Other special programs donate medicines and medical equipment such as diagnostic machines, and hold medical missions, out-patient consultations, and ambulance conductions of patients who otherwise cannot afford the service.
Via PCSO’s Quick Response program, relief is sent to victims of national calamities such as Typhoon Sendong, the landslide in Compostela Valley, the earthquake in Bohol, the conflict in Zamboanga, and the like. Victims of such events who are being treated in public hospitals may have their hospitals bills shouldered by PCSO upon their request and if qualified.
The public may also not be aware that a government GOCC such as PCSO pays taxes. From 2009 to June 2013, PCSO has remitted P18.4 billion for various kinds of taxes.
The public’s warm and generous support of Lotto and other PCSO games enables PCSO to sustain all these social programs, none of which include contributing to the PSF.
source: Manila Standard Column of Jenny Ortuoste
Various news items and columns have centered on the PDAF and the Presidential Social Fund since both issues broke out, but at least one statement being bandied about is untrue – that the Philippine Charity Sweepstakes Office contributes to the PSF.
This misimpression has gained a tenacious hold, reinforced by columnists and reporters who did not even reach out to the PCSO for confirmation.
Even some congressmen were misled. At a hearing of the Lower House Games and Amusements (G and A) Committee last Monday, Committee Chairman Rep. Elpidio F. Barzaga Jr. and other congressmen present were surprised to learn that not a centavo from PCSO has gone into the PSF.
“PCSO must reiterate to the public that they do not give any funds to the PSF,” said Marikina Rep. Miro Quimbo.
PCSO does contribute to certain government agencies through their founding charters. These payments, termed “mandatory contributions,” are made to diverse bodies responsible for a gamut of activities.
Among them are the Commission on Higher Education, National Museum, National Book Development Board, Philippine Sports Commission, Philippine Crop Insurance Corp., National Endowment Fund for Children’s Television, and many others.
The Presidential Social Fund is not among them.
Mandatory contributions are taken from the PCSO’s Charity Fund, which, as allocated by law, is 30 percent of the agency’s revenues. For the rest, 55 percent goes to the Prize Fund for games, and 15 percent to agency operations. (PCSO does not receive anything from the National Treasury for salaries, compensations, or other operational expenditures.)
In 2012, the Charity Fund totaled P9.86 billion. Of that amount, 41.46 percent – almost P4.1 billion- went to mandatory contributions. From January to June 2013, from the P4.84 billion Charity Fund, 59 percent – P2.87 billion – has already been released to various agencies.
Several lawmakers at the G and A hearing last Monday were astounded that nearly half of the PCSO’s fund for medical and healthcare assistance and charities of national character, instead of going to individual patients and institutional beneficiaries, instead supports government agencies that have nothing to do with PCSO’s mandate.
PCSO runs several significant social programs. Foremost is the Individual Medical Assistance Program (IMAP), that gives financial assistance to patients for their medical bills. In the first half of this year, P1.84 billion in approved requests is earmarked for hospitalizations (37.1 percent), dialysis treatments (25.78 percent), and chemotherapy sessions (12.62 percent), with the rest going to medicines, laboratory and diagnostic procedures, hearing aids and transplants, and other forms of treatment.
Through the Institutional Financial Assistance Program (IFAP), hospitals, clinics, orphanages, homes for the aged, and the like are given endowment funds for the medical care of their beneficiaries.
The Ambulance Donation Program gives ambulances to requesting municipalities and government hospitals nationwide.
Other special programs donate medicines and medical equipment such as diagnostic machines, and hold medical missions, out-patient consultations, and ambulance conductions of patients who otherwise cannot afford the service.
Via PCSO’s Quick Response program, relief is sent to victims of national calamities such as Typhoon Sendong, the landslide in Compostela Valley, the earthquake in Bohol, the conflict in Zamboanga, and the like. Victims of such events who are being treated in public hospitals may have their hospitals bills shouldered by PCSO upon their request and if qualified.
The public may also not be aware that a government GOCC such as PCSO pays taxes. From 2009 to June 2013, PCSO has remitted P18.4 billion for various kinds of taxes.
The public’s warm and generous support of Lotto and other PCSO games enables PCSO to sustain all these social programs, none of which include contributing to the PSF.
source: Manila Standard Column of Jenny Ortuoste
The barangay and nation-building
Over the weekend, I was in my hometown of Cagayan de Oro and was able
to witness the last two days of the barangay elections campaign. As a
student o f governance and politics, as I observed what was happening in
Barangay 31, where our ancestral home is located, I was fascinated by
the passion and seriousness of candidates, their supporters, and
ordinary citizens. I noticed a few excesses of course, including the
intrusion of partisan politics, but by and large I saw essentially
democracy in action.
This is a good thing – that people take the barangay and these
elections seriously. Because, the barangay is our basic political unit,
where participation by the people in governance is direct and
immediate, where, the “rubber hits the road” to reform governance in
this country. All the people I talked to in my hometown told me that the
barangay is far more important and real to them than any other local
government unit or national government agency. The latter is hardly
felt, the former from time to time, but the barangay is an every day
reality. However, in Metro Manila and other highly urbanized areas, for
most of the middle class at least, the reality is different.
According to the Local Government Code, “the barangay serves as the primary planning and implementing unit of government policies, plans, programs, projects, and activities in the community, and as a forum wherein the collective views of the pe ople may be expressed, crystallized and considered, and where disputes may be amicably settled”. This is consistent with the policy laid down by the Code as mandated by the 1987 Constitution: “It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.”
Consistent with devolution, the barangay is responsible for quite a number of basic services. These include: (i) Agricultural support services which inclu de planting materials distribution system and operation of farm produce collection and buying stations; (ii) Health and social welfare services which include maintenance of barangay health center and day-care center; (iii) Services and facilities related to general hygiene and sanitation, beautification, and solid waste collection; (iv) Maintenance of katarungang pambarangay; (v) Maintenance of barangay roads and bridges and water supply systems; (vi) Infrastructure facilities such as multi-purpose hall, multipurpose pavement, plaza, sports center, and other similar facilities; (vii) Information and reading center; and; (viii) Satellite or public market, where viable.
The Code also provides that “there shall be in each barangay a punong barangay, seven (7) sangguniang barangay members, the sangguniang kabataan chairman, a barangay secretary, and a barangay treasurer.” Each barangay also has a lupong tagapamayapa which is in charge of dispute resolution, so far a very effective means of mediation that has prevented thousands of cases from getting into an already congested judicial system. In addition, the sangguniang barangay may form community brigades and create such other positions or offices as may be deemed necessary to carry out the purposes of the barangay government in accordance with the needs of public service.
All these services, programs, and offices are paid from the share of the barangay of the Internal Revenue Allotment (IRA) in accordance with the criteria prescribed by law. As in the case of provinces, cities, and municipalities, some barangays have huge IRA funds while others have bare enough for their basic services. Like all local governments, barangays do have the power to create its own sources of revenue and to levy taxes, fees, and charges that are consistent with the basic policy of local autonomy.
Three years ago, my Ateneo colleague Prof. Joy Aceron and I wrote a paper entitled “Building on the Basics: Leadership, Local Governance and Nation-Building”. Yesterday’s elections reminded me of the core message of that paper where we argued that devolving power to local governments has been good for the Philippines. But as we pointed out then, the best-practice cases in local governance are only a start in reforming the Philippines and are inadequate when they remain confined with the limits of their respective local government units (LGUs). We said: “Unless these local successes are scaled up and connected, their impact will be limited and isolated.
Professor Aceron and I proposed a nation-building process, “to change the country from the base—place by place, island by island—wherein local reform leaders are conscious of the need to connect their efforts, share a common vision for the country, and eventually execute a coordinated strategy of capturing power at the national level.” This includes leaders from barangays all over the country, those which we elected yesterday.
Last Sunday, in Cagayan de Oro, I was happy to be in a Eucharist presided over by our Archbishop Tony Ledesma SJ, a Jesuit who has influenced me and generations of social development workers. In his homily, he explained why the barangay elections is supposed to be beyond partisan politics – because we know our neighbors well enough to be able to decide who can be the best leaders. He emphasized the four qualities – the 4 Cs – voters should consider in making their choices for the elections next day: conscience, competence, compassion, and commitment. I hope the voters of my city and the country voted on this basis. After all, nation-building is a formidable challenge and we must start with the basics.
Facebook: Dean Tony La Vina
Twitter: tonylavs
source: Manila Standard Column of Dean Tony La Vina
According to the Local Government Code, “the barangay serves as the primary planning and implementing unit of government policies, plans, programs, projects, and activities in the community, and as a forum wherein the collective views of the pe ople may be expressed, crystallized and considered, and where disputes may be amicably settled”. This is consistent with the policy laid down by the Code as mandated by the 1987 Constitution: “It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.”
Consistent with devolution, the barangay is responsible for quite a number of basic services. These include: (i) Agricultural support services which inclu de planting materials distribution system and operation of farm produce collection and buying stations; (ii) Health and social welfare services which include maintenance of barangay health center and day-care center; (iii) Services and facilities related to general hygiene and sanitation, beautification, and solid waste collection; (iv) Maintenance of katarungang pambarangay; (v) Maintenance of barangay roads and bridges and water supply systems; (vi) Infrastructure facilities such as multi-purpose hall, multipurpose pavement, plaza, sports center, and other similar facilities; (vii) Information and reading center; and; (viii) Satellite or public market, where viable.
The Code also provides that “there shall be in each barangay a punong barangay, seven (7) sangguniang barangay members, the sangguniang kabataan chairman, a barangay secretary, and a barangay treasurer.” Each barangay also has a lupong tagapamayapa which is in charge of dispute resolution, so far a very effective means of mediation that has prevented thousands of cases from getting into an already congested judicial system. In addition, the sangguniang barangay may form community brigades and create such other positions or offices as may be deemed necessary to carry out the purposes of the barangay government in accordance with the needs of public service.
All these services, programs, and offices are paid from the share of the barangay of the Internal Revenue Allotment (IRA) in accordance with the criteria prescribed by law. As in the case of provinces, cities, and municipalities, some barangays have huge IRA funds while others have bare enough for their basic services. Like all local governments, barangays do have the power to create its own sources of revenue and to levy taxes, fees, and charges that are consistent with the basic policy of local autonomy.
Three years ago, my Ateneo colleague Prof. Joy Aceron and I wrote a paper entitled “Building on the Basics: Leadership, Local Governance and Nation-Building”. Yesterday’s elections reminded me of the core message of that paper where we argued that devolving power to local governments has been good for the Philippines. But as we pointed out then, the best-practice cases in local governance are only a start in reforming the Philippines and are inadequate when they remain confined with the limits of their respective local government units (LGUs). We said: “Unless these local successes are scaled up and connected, their impact will be limited and isolated.
Professor Aceron and I proposed a nation-building process, “to change the country from the base—place by place, island by island—wherein local reform leaders are conscious of the need to connect their efforts, share a common vision for the country, and eventually execute a coordinated strategy of capturing power at the national level.” This includes leaders from barangays all over the country, those which we elected yesterday.
Last Sunday, in Cagayan de Oro, I was happy to be in a Eucharist presided over by our Archbishop Tony Ledesma SJ, a Jesuit who has influenced me and generations of social development workers. In his homily, he explained why the barangay elections is supposed to be beyond partisan politics – because we know our neighbors well enough to be able to decide who can be the best leaders. He emphasized the four qualities – the 4 Cs – voters should consider in making their choices for the elections next day: conscience, competence, compassion, and commitment. I hope the voters of my city and the country voted on this basis. After all, nation-building is a formidable challenge and we must start with the basics.
Facebook: Dean Tony La Vina
Twitter: tonylavs
source: Manila Standard Column of Dean Tony La Vina
Monday, October 21, 2013
Restoring civility at the Sandiganbayan
It’s good that the Supreme Court has issued an order installing newly
appointed Sandiganbayan Presiding Justice Amparo Cabotaje-Tang as
chairman of the anti-graft court’s third division.
This move of the High Tribunal will help restore civility in the Sandiganbayan and stop on its tracks the move by some Sandiganbayan officials to embarrass Tang whose appointment as presiding justice has been questioned—not so much because of her qualifications, but because of the fact that she is the most junior justice, the youngest and the most recent appointee to the court.
The griping officials find it hard to accept Tang’s appointment to the Sandiganbayan’s top position because in the process she bypassed more senior magistrates. Since she is only 58 years old, none of the sitting Sandiganbayan associate justices will have a chance to become Presiding Justice. They will all reach the mandatory retirement age of 70 before Tang.
Sandiganbayan officials who opposed the appointment of Tang have been mocking her as a “queen without a throne” since, until the SC order, she did not even preside over any of the five divisions of the anti-graft court.
Without the intervention of the Supreme Court, there would be the strange situation of the Presiding Justice continuing as a junior member of the fifth division. It is unlikely that one among the five senior Sandiganbayan justices chairing a division would give way.
Tang wanted to assume the chairmanship of the third division since this was the division headed by former Presiding Justice Francisco Villaruz when he retired last June 8.
But Associate Justice Jose Hernandez who replaced Villaruz as chairman refused to relinquish the post.
Hernandez insisted that he had become the permanent chairman of the third division under the proposed Revised Internal Rules of the Sandiganbayan.
He cites Section 5(a), Rule II of the proposed Revised Internal Rules which says: “In the position of Division Chairman—if a permanent vacancy occurs in the position of a Division, the most senior Associate Justice in the Sandiganbayan who is not yet a Chairman shall become Chairman of that Division.”
Hernandez is the most senior among the 15 Associate Justices of the Sandiganbayan although he will not be retiring until 2016.
However, with her appointment as Presiding Justice she became first in the ranking among the Sandiganbayan justices as what would have happened if Justices Efren de la Cruz or Gregory Ong, who were also nominated for the post, been selected.
The case of Tang is similar to that of Chief Justice Ma. Lourdes Sereno who was the most junior among the Supreme Court Associate Justices when she was appointed to head the SC. Her appointment made her the highest ranking official of the High Tribunal and even if some SC justices were initially reluctant, they had to accept this fact.
If you consider the Sereno precedent, it is not surprising that the Supreme Court has ordered Hernandez to vacate the post of chairman of the third division and allowed Tang to assume the post.
The SC decision is in response to the five-page letter Tang sent to Chief Justice Sereno last Oct. 10, seeking guidance on the confusion of who will chair the third division in view of the adamance of Hernandez to give it up.
Actually Tang had already addressed the issue of her qualifications to be the Sandiganbayan presiding justice in the deliberation of the Judicial and Bar Council (JBC). “I may be a junior in judicial experience but I am not a junior in legal and administrative experience,” Tang said when she was grilled by members of the JBC.
Indeed, Tang is not a junior in terms of experience.
It was Tang as assistant solicitor general who filed the pleading to oppose the plea bargaining agreement between the Sandiganbayan and former military comptroller Gen. Carlos Garcia.
She is also responsible for the government’s success in recovering over P60 billion of the so-called coconut levy fund.
She had an excellent performance in the first 10 months as associate justice of the Sandiganbayan where according to news reports she resolved 31 incidents in 31 cases of an average of three incidents resolved per month.
This record must have helped convince members of the JBC that she is serious in her commitment to speed up the resolution of pending cases before the anti-graft court.
Tang has an impressive career record. Before her appointment as associate justice, she worked at the Office of the Solicitor General rising from Solicitor 1 in 1984 to Assistant Solicitor General from 1994 to 2012.
She was a litigation lawyer from 1982 to 1984 and she was legal assistant at the SC from 1980 to 1982.
She has been a law professor at the University of Sto. Tomas since 2010 and at the San Beda Law School since 2006. She graduated in the top 10 of her class at the San Beda College of Law in 1979 and she passed the bar in the same year with a rating of 84.95 percent.
source: Manila Standard Column of Alvin Capino
This move of the High Tribunal will help restore civility in the Sandiganbayan and stop on its tracks the move by some Sandiganbayan officials to embarrass Tang whose appointment as presiding justice has been questioned—not so much because of her qualifications, but because of the fact that she is the most junior justice, the youngest and the most recent appointee to the court.
The griping officials find it hard to accept Tang’s appointment to the Sandiganbayan’s top position because in the process she bypassed more senior magistrates. Since she is only 58 years old, none of the sitting Sandiganbayan associate justices will have a chance to become Presiding Justice. They will all reach the mandatory retirement age of 70 before Tang.
Sandiganbayan officials who opposed the appointment of Tang have been mocking her as a “queen without a throne” since, until the SC order, she did not even preside over any of the five divisions of the anti-graft court.
Without the intervention of the Supreme Court, there would be the strange situation of the Presiding Justice continuing as a junior member of the fifth division. It is unlikely that one among the five senior Sandiganbayan justices chairing a division would give way.
Tang wanted to assume the chairmanship of the third division since this was the division headed by former Presiding Justice Francisco Villaruz when he retired last June 8.
But Associate Justice Jose Hernandez who replaced Villaruz as chairman refused to relinquish the post.
Hernandez insisted that he had become the permanent chairman of the third division under the proposed Revised Internal Rules of the Sandiganbayan.
He cites Section 5(a), Rule II of the proposed Revised Internal Rules which says: “In the position of Division Chairman—if a permanent vacancy occurs in the position of a Division, the most senior Associate Justice in the Sandiganbayan who is not yet a Chairman shall become Chairman of that Division.”
Hernandez is the most senior among the 15 Associate Justices of the Sandiganbayan although he will not be retiring until 2016.
However, with her appointment as Presiding Justice she became first in the ranking among the Sandiganbayan justices as what would have happened if Justices Efren de la Cruz or Gregory Ong, who were also nominated for the post, been selected.
The case of Tang is similar to that of Chief Justice Ma. Lourdes Sereno who was the most junior among the Supreme Court Associate Justices when she was appointed to head the SC. Her appointment made her the highest ranking official of the High Tribunal and even if some SC justices were initially reluctant, they had to accept this fact.
If you consider the Sereno precedent, it is not surprising that the Supreme Court has ordered Hernandez to vacate the post of chairman of the third division and allowed Tang to assume the post.
The SC decision is in response to the five-page letter Tang sent to Chief Justice Sereno last Oct. 10, seeking guidance on the confusion of who will chair the third division in view of the adamance of Hernandez to give it up.
Actually Tang had already addressed the issue of her qualifications to be the Sandiganbayan presiding justice in the deliberation of the Judicial and Bar Council (JBC). “I may be a junior in judicial experience but I am not a junior in legal and administrative experience,” Tang said when she was grilled by members of the JBC.
Indeed, Tang is not a junior in terms of experience.
It was Tang as assistant solicitor general who filed the pleading to oppose the plea bargaining agreement between the Sandiganbayan and former military comptroller Gen. Carlos Garcia.
She is also responsible for the government’s success in recovering over P60 billion of the so-called coconut levy fund.
She had an excellent performance in the first 10 months as associate justice of the Sandiganbayan where according to news reports she resolved 31 incidents in 31 cases of an average of three incidents resolved per month.
This record must have helped convince members of the JBC that she is serious in her commitment to speed up the resolution of pending cases before the anti-graft court.
Tang has an impressive career record. Before her appointment as associate justice, she worked at the Office of the Solicitor General rising from Solicitor 1 in 1984 to Assistant Solicitor General from 1994 to 2012.
She was a litigation lawyer from 1982 to 1984 and she was legal assistant at the SC from 1980 to 1982.
She has been a law professor at the University of Sto. Tomas since 2010 and at the San Beda Law School since 2006. She graduated in the top 10 of her class at the San Beda College of Law in 1979 and she passed the bar in the same year with a rating of 84.95 percent.
source: Manila Standard Column of Alvin Capino
Saturday, October 19, 2013
BID chief’s permission needed for alien’s extension of stay
Dear PAO,
I am a British who fell in love with a wonderful Filipina. We are living together in Pampanga with her daughter. Upon extension of my tourist visa at the main office of the Bureau of Immigration, I was informed that I have to exit the Philippines because I have reached the maximum allowable period of extensions. I don’t want to leave the Philippines because I consider this my home. What should I do to stay longer in the Philippines? I could not apply for a spouse visa because my partner is still married to the father of her child. Is it possible that I apply for a fiancé visa?
K. Williams
Dear K. Williams,
Foreigners holding temporary visitor’s visa pursuant to Philippine Immigration Act of 1940 and aliens admitted under Executive Order (E.O.) No. 408 may extend their stay in the Philippines for a total stay of 16 months. A foreigner who seeks to extend his tourist visa beyond the 16-month limit should first seek the approval of the Commissioner (Memoran–dum Order No. RADJR-2013-007 or the “Implementation of the Long-Stay Visitor Visa Extension [LSVVE]”). Based from the fore–going, you should abide with the order of the officer of the Bureau of Immigration since, as stated, you have already reached the maximum allowable period for tourist visa extension. However, you may ask the Commissioner of the Bureau of Immigration for reconsideration to extend your visa. The approval of the Com-missioner is necessary before extensions can be made.
Since your intention is to stay permanently in the Philippines, which you consider your home, it is better if your secure a permanent visa. One of the permanent visas available to foreign national is that given to foreign nationals who are married to a Filipino under Section 13(a) of the Philippine Immigration Act of 1940. Unfortunately, this kind of permanent visa cannot be applied by your fiancée for you because you are not yet married and the said marriage is not possible as of the moment because, according to you, she is still married.
Our country has no fiancé visa but there are other permanent visas which you may apply, to wit: quota immigrant visa; Special Visa Employment Generation (SVEG); and Special Resident Retiree’s Visa (SRRV). However, this kind of visas requires from you a certain amount of investment in the Philippines before it may be granted, such as the required bank certification of inward remittance amounting to at least US $50,000.00 or its equivalent in foreign currency for applicants of quota visa. On the other hand, if it is really your desire to marry your Filipina partner, you may suggest for the filing of annulment or declaration of nullity of her marriage with the father of her child. When annulled or their marriage is declared as null and void, you may now marry her and she may petition you to have a permanent visa in the Philippines.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.
source: Manila Times Column of Atty Persida Acosta
I am a British who fell in love with a wonderful Filipina. We are living together in Pampanga with her daughter. Upon extension of my tourist visa at the main office of the Bureau of Immigration, I was informed that I have to exit the Philippines because I have reached the maximum allowable period of extensions. I don’t want to leave the Philippines because I consider this my home. What should I do to stay longer in the Philippines? I could not apply for a spouse visa because my partner is still married to the father of her child. Is it possible that I apply for a fiancé visa?
K. Williams
Dear K. Williams,
Foreigners holding temporary visitor’s visa pursuant to Philippine Immigration Act of 1940 and aliens admitted under Executive Order (E.O.) No. 408 may extend their stay in the Philippines for a total stay of 16 months. A foreigner who seeks to extend his tourist visa beyond the 16-month limit should first seek the approval of the Commissioner (Memoran–dum Order No. RADJR-2013-007 or the “Implementation of the Long-Stay Visitor Visa Extension [LSVVE]”). Based from the fore–going, you should abide with the order of the officer of the Bureau of Immigration since, as stated, you have already reached the maximum allowable period for tourist visa extension. However, you may ask the Commissioner of the Bureau of Immigration for reconsideration to extend your visa. The approval of the Com-missioner is necessary before extensions can be made.
Since your intention is to stay permanently in the Philippines, which you consider your home, it is better if your secure a permanent visa. One of the permanent visas available to foreign national is that given to foreign nationals who are married to a Filipino under Section 13(a) of the Philippine Immigration Act of 1940. Unfortunately, this kind of permanent visa cannot be applied by your fiancée for you because you are not yet married and the said marriage is not possible as of the moment because, according to you, she is still married.
Our country has no fiancé visa but there are other permanent visas which you may apply, to wit: quota immigrant visa; Special Visa Employment Generation (SVEG); and Special Resident Retiree’s Visa (SRRV). However, this kind of visas requires from you a certain amount of investment in the Philippines before it may be granted, such as the required bank certification of inward remittance amounting to at least US $50,000.00 or its equivalent in foreign currency for applicants of quota visa. On the other hand, if it is really your desire to marry your Filipina partner, you may suggest for the filing of annulment or declaration of nullity of her marriage with the father of her child. When annulled or their marriage is declared as null and void, you may now marry her and she may petition you to have a permanent visa in the Philippines.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.
source: Manila Times Column of Atty Persida Acosta
Thursday, September 26, 2013
Comelec division disqualifies Laguna Gov ER Ejercito for overspending in 2013 polls
The Commission on Elections (Comelec) First Division has disqualified
incumbent Laguna Governor Emilio Ramon "ER" Ejercito for supposedly
overspending during the May 13 elections — a decision that has politics
"written all over it," according to an opposition senator.
Coming to his cousin's rescue, Senator JV Ejercito tweeted Thursday that the disqualification case has "partisan politics written all over it. Gov. ER won overwhelmingly."
Ejercito, nephew of former President and now Manila mayor Joseph Estrada, has locked horns with President Benigno Aquino III in the past.
The Comelec, on the other hand, said Ejercito's disqualification only shows that the poll body "isn't joking."
Coming to his cousin's rescue, Senator JV Ejercito tweeted Thursday that the disqualification case has "partisan politics written all over it. Gov. ER won overwhelmingly."
Ejercito, nephew of former President and now Manila mayor Joseph Estrada, has locked horns with President Benigno Aquino III in the past.
The Comelec, on the other hand, said Ejercito's disqualification only shows that the poll body "isn't joking."
"Hindi po kami nagbibiro," Comelec chairman Sixto Brillantes Jr. said
in the statement, adding that they are "readying several other election
offense cases against erring candidates."
First time
First time
"This is the first time for somebody to be disqualified for overspending," Commissioner Lucenito Tagle, the head of the division, told GMA News Online by phone on Thursday.
The decision, however, is not final and executory as Ejercito has five days to submit a motion for reconsideration, said Brillantes. The Comelec sitting en banc would then decide on the motion.
Ejercito may proceed to the Supreme Court if the en banc ruled against him.
Once disqualified, Vice Governor Ramil Hernandez would take Ejercito's place, Brillantes said.
In a statement, the Comelec said Ejercito spent P6 million in television advertisement alone.
According to the poll body, Ejercito is only allowed to spend P4.5
million for his entire campaign. The Comelec, in a resolution, said
candidates are only allowed to spend P3 per registered voter. Laguna has
a total 1,525,522 voters.
Ejercito won as Laguna governor in the 2013 elections with a total 549,310 votes.
Disqualification case
In a separate interview, Brillantes told GMA News Online that Ejercito's expense report shows he had a contract for seven television spots worth over P20 million.
But the report only included two receipts that already show a P6 million expenditure for two airtime spots, he added.
The disqualification case stemmed from a petition filed by Ejercito's close rival Edgar "Egay" San Luis. Brillantes said the poll body took the cue from the petition and audited Ejercito's expense report.
GMA News Online has been trying to reach Ejercito by phone but he was not picking up the calls. A "24 Oras" report by Marisol Abdurahman quoted him as saying that he would file a motion to reconsider the disqualification.
Ejercito was also quoted as claiming he was a "victim of politics." — RSJ/KBK, GMA News
Disqualification case
In a separate interview, Brillantes told GMA News Online that Ejercito's expense report shows he had a contract for seven television spots worth over P20 million.
But the report only included two receipts that already show a P6 million expenditure for two airtime spots, he added.
The disqualification case stemmed from a petition filed by Ejercito's close rival Edgar "Egay" San Luis. Brillantes said the poll body took the cue from the petition and audited Ejercito's expense report.
GMA News Online has been trying to reach Ejercito by phone but he was not picking up the calls. A "24 Oras" report by Marisol Abdurahman quoted him as saying that he would file a motion to reconsider the disqualification.
Ejercito was also quoted as claiming he was a "victim of politics." — RSJ/KBK, GMA News
Sunday, July 21, 2013
High court strips conferment on National Artists
FOUR NATIONAL Artist awards granted by then
president Gloria Macapagal-Arroyo have been struck down by the Supreme
Court (SC) which found grave abuse of discretion in the conferment of
the titles, a decision welcomed by past awardees who have waged a
four-year legal battle on the issue.
The high court declared as invalid the National Artist titles of Cecile Guidote-Alvarez (theater), Carlo Magno Jose Caparas (visual arts), Francisco “Bobby” Mañosa (architecture) and Jose “Pitoy” Moreno (fashion design) for violation of the Constitution’s equal protection clause, particularly on the preferential treatment accorded to them by Mrs. Arroyo.
“The manifest disregard of the rules, guidelines and processes of the [National Commission for Culture and the Arts] and the [Cultural Center of the Philippines] was an arbitrary act that unduly favored respondents Guidote-Alvarez, Caparas, Mañosa and Moreno,” a Supreme Court press statement yesterday quoted the decision as saying.
On the other hand, the high court did not find grave abuse of discretion in the exclusion of Dr. Ramon P. Santos in the final list of conferees announced by Malacañang in 2009 as the recommendations of the National Commission for Culture and the Arts (NCCA) and Board of Trustees of the Cultural Center of the Philippines (CCP) were “not binding but only discretionary.”
Except for three justices -- Arturo D. Brion is on leave while Mariano C. del Castillo and Mario Victor F. Leonen inhibited themselves from the case -- the rest of the high court voted to strip the conferment on the four awardees.
A group of artists led by National Artist for Literature Virgilio S. Almario filed a petition for prohibition in August 2009 following the insertion by the Palace of the four individuals among the seven new National Artists despite not being recommended by the NCCA and the CCP. The court shortly issued a stay order.
The other three awardees were Manuel “Manuel Conde” P. Urbano for film and broadcast arts (posthumous), Lazaro A. Francisco for literature (posthumous), and Federico Aguilar Alcuaz for visual arts, paintings, sculpture and mixed media.
The CCP and NCCA submitted four names to the Palace, but only three individuals were retained. Mr. Santos was removed from the list, while four were added to include Ms. Alvarez who was then executive director of the NCCA.
Sought for comment, Mr. Almario said in a text message yesterday: “Ano pa sasabihin ko? [What else can I say?] Hail SC!”
National Artist for Visual Arts Benedicto “BenCab” Cabrera said in a separate text: “Well. I’m glad that our petition was favorably answered. SC realized it’s an abuse of discretion and made the award to them invalid.”
Messrs. Almario and Cabrera were among the National Artist petitioners that included Arturo Luz (Visual Arts), Bienvenido Lumbera (Literature), Napoleon Abueva (Sculpture), F. Sionil Jose (Literature) and the late Eddie Romero (Film and Broadcast Arts).
National Artists receive 100,000 net of taxes for living awardees, 75,000 net of taxes for posthumous awardees payable to legal heirs; a monthly life pension, medical and hospitalization benefits; life insurance coverage for those who are still insurable, arrangements and expenses for a state funeral, and a place of honor at national state functions and recognition at cultural events.
A creation of President Ferdinand E. Marcos through a proclamation issued in 1972, the Order of National Artists is the highest national recognition for Filipinos who have made significant contributions to the arts. The process has a nomination and vetting system, even as awardees to the final list have been added by presidents after Corazon C. Aquino.
A new category called “Historical Literature was created by President Fidel V. Ramos in 1997 for biographer Carlos Quirino, President Joseph E. Estrada in 2000 conferred the title to his friend Ernani Cuenco, Sr., while Mrs. Arroyo in 2003 included in the list Alejandro “Ding” Roces, former Education secretary under the administration of her father, President Diosdado P. Macapagal, and added another awardee, sculptor Abdulmari Imao, in 2006.
In a previous interview, Mr. Almario called the presidential prerogative “DNA” or Dagdag (additional) National Artist.
source: Businessworld
The high court declared as invalid the National Artist titles of Cecile Guidote-Alvarez (theater), Carlo Magno Jose Caparas (visual arts), Francisco “Bobby” Mañosa (architecture) and Jose “Pitoy” Moreno (fashion design) for violation of the Constitution’s equal protection clause, particularly on the preferential treatment accorded to them by Mrs. Arroyo.
“The manifest disregard of the rules, guidelines and processes of the [National Commission for Culture and the Arts] and the [Cultural Center of the Philippines] was an arbitrary act that unduly favored respondents Guidote-Alvarez, Caparas, Mañosa and Moreno,” a Supreme Court press statement yesterday quoted the decision as saying.
On the other hand, the high court did not find grave abuse of discretion in the exclusion of Dr. Ramon P. Santos in the final list of conferees announced by Malacañang in 2009 as the recommendations of the National Commission for Culture and the Arts (NCCA) and Board of Trustees of the Cultural Center of the Philippines (CCP) were “not binding but only discretionary.”
Except for three justices -- Arturo D. Brion is on leave while Mariano C. del Castillo and Mario Victor F. Leonen inhibited themselves from the case -- the rest of the high court voted to strip the conferment on the four awardees.
A group of artists led by National Artist for Literature Virgilio S. Almario filed a petition for prohibition in August 2009 following the insertion by the Palace of the four individuals among the seven new National Artists despite not being recommended by the NCCA and the CCP. The court shortly issued a stay order.
The other three awardees were Manuel “Manuel Conde” P. Urbano for film and broadcast arts (posthumous), Lazaro A. Francisco for literature (posthumous), and Federico Aguilar Alcuaz for visual arts, paintings, sculpture and mixed media.
The CCP and NCCA submitted four names to the Palace, but only three individuals were retained. Mr. Santos was removed from the list, while four were added to include Ms. Alvarez who was then executive director of the NCCA.
Sought for comment, Mr. Almario said in a text message yesterday: “Ano pa sasabihin ko? [What else can I say?] Hail SC!”
National Artist for Visual Arts Benedicto “BenCab” Cabrera said in a separate text: “Well. I’m glad that our petition was favorably answered. SC realized it’s an abuse of discretion and made the award to them invalid.”
Messrs. Almario and Cabrera were among the National Artist petitioners that included Arturo Luz (Visual Arts), Bienvenido Lumbera (Literature), Napoleon Abueva (Sculpture), F. Sionil Jose (Literature) and the late Eddie Romero (Film and Broadcast Arts).
National Artists receive 100,000 net of taxes for living awardees, 75,000 net of taxes for posthumous awardees payable to legal heirs; a monthly life pension, medical and hospitalization benefits; life insurance coverage for those who are still insurable, arrangements and expenses for a state funeral, and a place of honor at national state functions and recognition at cultural events.
A creation of President Ferdinand E. Marcos through a proclamation issued in 1972, the Order of National Artists is the highest national recognition for Filipinos who have made significant contributions to the arts. The process has a nomination and vetting system, even as awardees to the final list have been added by presidents after Corazon C. Aquino.
A new category called “Historical Literature was created by President Fidel V. Ramos in 1997 for biographer Carlos Quirino, President Joseph E. Estrada in 2000 conferred the title to his friend Ernani Cuenco, Sr., while Mrs. Arroyo in 2003 included in the list Alejandro “Ding” Roces, former Education secretary under the administration of her father, President Diosdado P. Macapagal, and added another awardee, sculptor Abdulmari Imao, in 2006.
In a previous interview, Mr. Almario called the presidential prerogative “DNA” or Dagdag (additional) National Artist.
source: Businessworld
Thursday, July 18, 2013
Justice Brion’s dissent (On SC DQ Decision re Rep. Reyes Case)
Regina Reyes beat the son of Associate Justice Presbitero J. Velasco,
Jr. by almost 4,000 votes in the last concluded elections for the post
of representative for the lone district of Marinduque.
Pursuant to established jurisprudence, all controversy concerning her qualification to sit as a member of the House of Representatives should be resolved exclusively by the House of Representatives Electoral Tribunal. For still unknown reasons, the Supreme Court departed from jurisprudence and ruled that the Certificate of Candidacy of Rep. Reyes was null and void allegedly because she is an American citizen.
I yield my space today to print portions of the dissenting opinion of Justice Arturo D. Brion. He was joined by Justice Antonio T. Carpio, Justice Martin S. Villarama, Jr. and Justice Marvic Mario Victor F. Leonen.
No basis exists to dismiss the petition
Section 6 of Rule 64 of the Rules of Court merely requires that the petition be sufficient in form and substance to justify an order from the Court to act on the petition and to require the respondents to file their comments. The same rule also provides that the Court may dismiss the petition outright (as the majority did in the present case) if it was filed manifestly for delay or if the questions raised are too unsubstantial to warrant further proceedings.
In the present case, the petition is indisputably sufficient in form and substance… Thus, the question before the Court… is whether the issues raised by Reyes were too unsubstantial to warrant further proceedings.
…the issues raised cannot be unsubstantial as they involve crucial issues of jurisdiction and due process. …the Court cannot simply go through the motions of evaluation and then simply strike out the petitioner’s positions. The Court’s role as adjudicator and the demands of basic fairness require that we should fully hear the parties and rule based on our appreciation of the merits of their positions in light of what the law and established jurisprudence require.
HRET has jurisdiction
…the matter of jurisdiction between the Comelec and the HRET has always constituted a dichotomy; the relationship between the Comelec and the HRET in terms of jurisdiction is not an appellate one but is mutually exclusive.
This mutually exclusive jurisdictional relationship is, as a rule, sequential. …the Comelec’s jurisdiction ends when the HRET’s jurisdiction begins. …there is no point in time, when a vacuum in jurisdiction would exist… This jurisdiction …refers to jurisdiction over the subject matter …Under Section 17, Article VI, the subject matter of HRET’s jurisdiction is the “election, returns, and qualifications of Members of the House of Representatives.”
I submit … that the proclamation of the winning candidate is the operative fact that triggers the jurisdiction of the HRET…the proclamation of a winning candidate divests the Comelec of its jurisdiction over matters pending before it at the time of the proclamation and the party questioning the qualifications of the winning candidate should now present his or her case in a proper proceeding (i.e. quo warranto) before the HRET who, by constitutional mandate, has the sole jurisdiction to hear and decide cases involving the election, returns and qualification of members of the House of Representatives. …as far as the HRET is concerned, the proclamation of the winner in the congressional elections serves as the reckoning point as well as the trigger that brings any contests relating to his or her election, return and qualifications within its sole and exclusive jurisdiction.
…by holding that the Comelec retained jurisdiction … the majority effectively emasculates the HRET of its jurisdiction as it allows the filing of an election protest or a petition for quo warranto only after the assumption to office by the candidate (i.e, on June 30 in the usual case).
Comelec gravely abused its discretion
… common sense and the minimum sense of fairness dictate that an article in the internet cannot simply be taken to be evidence of the truth of what it says, nor can photocopies of documents not shown to be genuine be taken as proof of the “truth.” To accept these materials as statements of “truth” is to be partisan and to deny the petitioner her right to both procedural and substantive due process.
It is also basic in the law of evidence that one who alleges a fact has the burden of proving it. …Reyes’ view is not without its merits and should not simply be dismissively set aside.
First, Tan submitted an article published online … stated that the author had obtained records from the BID stating that Reyes is an American citizen; that she is the holder of a US passport and that she has been using the same since 2005.
How the law on evidence would characterize Obligacion’s blog article …is not hard for a law student answering the Bar exam to tackle: the article is double hearsay or hearsay evidence that is twice removed from being admissible as it was offered to prove its contents (that Reyes is an American citizen) without any other competent and credible evidence to corroborate them.
Second, Tan also submitted a photocopy of a “certification” issued by … the BID showing the travel records of Reyes …and that she is a holder of US Passport No. 306278853.
Contributory to the possible answer is the ruling of this Court that a “certification” is not a certified copy and is not a document that proves that a party is not a Filipino citizen.
…in the absence of sufficient proof (i.e, other than a photocopy of a “certification”) that she is not a natural born Filipino citizen, no burden of evidence shifts to her to prove anything, particularly the fact that she is not an American citizen. Considering that Tan might have also failed to prove by substantial evidence his allegation that Reyes is an American citizen, the burden of evidence also cannot be shifted to the latter to prove that she had availed of the privileges of RA 9225 in order to re-acquire her status as a natural born Filipino citizen.
…in the absence of sufficient proof that Reyes lost her Filipino citizenship, the twin requirements under RA 9225 for re-acquisition of Filipino citizenship should not apply to her.
Conclusion
All told, the Comelec does not appear to have an airtight case based on substantial evidence on the citizenship and residence issues and much less a similar case on the jurisdictional issue, to justify A VERY PROMPT OUTRIGHT DISMISSAL ACTION from this Court.
If this Court is indeed SERIOUS IN ADMINISTERING JUSTICE or at least to BE SEEN TO BE ADMINISTERING JUSTICE in the way described in the speeches of many Justice of this Court, it should not deliver the kind of hasty and imprudent action it did in this case.
source: Manila Standard Column of Atty. Harry Roque
Pursuant to established jurisprudence, all controversy concerning her qualification to sit as a member of the House of Representatives should be resolved exclusively by the House of Representatives Electoral Tribunal. For still unknown reasons, the Supreme Court departed from jurisprudence and ruled that the Certificate of Candidacy of Rep. Reyes was null and void allegedly because she is an American citizen.
I yield my space today to print portions of the dissenting opinion of Justice Arturo D. Brion. He was joined by Justice Antonio T. Carpio, Justice Martin S. Villarama, Jr. and Justice Marvic Mario Victor F. Leonen.
No basis exists to dismiss the petition
Section 6 of Rule 64 of the Rules of Court merely requires that the petition be sufficient in form and substance to justify an order from the Court to act on the petition and to require the respondents to file their comments. The same rule also provides that the Court may dismiss the petition outright (as the majority did in the present case) if it was filed manifestly for delay or if the questions raised are too unsubstantial to warrant further proceedings.
In the present case, the petition is indisputably sufficient in form and substance… Thus, the question before the Court… is whether the issues raised by Reyes were too unsubstantial to warrant further proceedings.
…the issues raised cannot be unsubstantial as they involve crucial issues of jurisdiction and due process. …the Court cannot simply go through the motions of evaluation and then simply strike out the petitioner’s positions. The Court’s role as adjudicator and the demands of basic fairness require that we should fully hear the parties and rule based on our appreciation of the merits of their positions in light of what the law and established jurisprudence require.
HRET has jurisdiction
…the matter of jurisdiction between the Comelec and the HRET has always constituted a dichotomy; the relationship between the Comelec and the HRET in terms of jurisdiction is not an appellate one but is mutually exclusive.
This mutually exclusive jurisdictional relationship is, as a rule, sequential. …the Comelec’s jurisdiction ends when the HRET’s jurisdiction begins. …there is no point in time, when a vacuum in jurisdiction would exist… This jurisdiction …refers to jurisdiction over the subject matter …Under Section 17, Article VI, the subject matter of HRET’s jurisdiction is the “election, returns, and qualifications of Members of the House of Representatives.”
I submit … that the proclamation of the winning candidate is the operative fact that triggers the jurisdiction of the HRET…the proclamation of a winning candidate divests the Comelec of its jurisdiction over matters pending before it at the time of the proclamation and the party questioning the qualifications of the winning candidate should now present his or her case in a proper proceeding (i.e. quo warranto) before the HRET who, by constitutional mandate, has the sole jurisdiction to hear and decide cases involving the election, returns and qualification of members of the House of Representatives. …as far as the HRET is concerned, the proclamation of the winner in the congressional elections serves as the reckoning point as well as the trigger that brings any contests relating to his or her election, return and qualifications within its sole and exclusive jurisdiction.
…by holding that the Comelec retained jurisdiction … the majority effectively emasculates the HRET of its jurisdiction as it allows the filing of an election protest or a petition for quo warranto only after the assumption to office by the candidate (i.e, on June 30 in the usual case).
Comelec gravely abused its discretion
… common sense and the minimum sense of fairness dictate that an article in the internet cannot simply be taken to be evidence of the truth of what it says, nor can photocopies of documents not shown to be genuine be taken as proof of the “truth.” To accept these materials as statements of “truth” is to be partisan and to deny the petitioner her right to both procedural and substantive due process.
It is also basic in the law of evidence that one who alleges a fact has the burden of proving it. …Reyes’ view is not without its merits and should not simply be dismissively set aside.
First, Tan submitted an article published online … stated that the author had obtained records from the BID stating that Reyes is an American citizen; that she is the holder of a US passport and that she has been using the same since 2005.
How the law on evidence would characterize Obligacion’s blog article …is not hard for a law student answering the Bar exam to tackle: the article is double hearsay or hearsay evidence that is twice removed from being admissible as it was offered to prove its contents (that Reyes is an American citizen) without any other competent and credible evidence to corroborate them.
Second, Tan also submitted a photocopy of a “certification” issued by … the BID showing the travel records of Reyes …and that she is a holder of US Passport No. 306278853.
Contributory to the possible answer is the ruling of this Court that a “certification” is not a certified copy and is not a document that proves that a party is not a Filipino citizen.
…in the absence of sufficient proof (i.e, other than a photocopy of a “certification”) that she is not a natural born Filipino citizen, no burden of evidence shifts to her to prove anything, particularly the fact that she is not an American citizen. Considering that Tan might have also failed to prove by substantial evidence his allegation that Reyes is an American citizen, the burden of evidence also cannot be shifted to the latter to prove that she had availed of the privileges of RA 9225 in order to re-acquire her status as a natural born Filipino citizen.
…in the absence of sufficient proof that Reyes lost her Filipino citizenship, the twin requirements under RA 9225 for re-acquisition of Filipino citizenship should not apply to her.
Conclusion
All told, the Comelec does not appear to have an airtight case based on substantial evidence on the citizenship and residence issues and much less a similar case on the jurisdictional issue, to justify A VERY PROMPT OUTRIGHT DISMISSAL ACTION from this Court.
If this Court is indeed SERIOUS IN ADMINISTERING JUSTICE or at least to BE SEEN TO BE ADMINISTERING JUSTICE in the way described in the speeches of many Justice of this Court, it should not deliver the kind of hasty and imprudent action it did in this case.
source: Manila Standard Column of Atty. Harry Roque
Thursday, July 4, 2013
Writ of Habeas Data
Death threat and resort to the Writ of Habeas Data
I was one of those who filed yesterday a petition for the issuance of a writ of habeas data against Commission on Elections Chairman Sixto Brilliantes and Deputy Presidential Mouth Abigal Valte. I decided to join the petition because last Monday, my law office received a registered mail which contained a letter threatening my life. The letter asked me not to “allow myself to be used ” and to” refrain from wasting my intelligence”. It was signed by the “Rodante Untal Command” which purportedly is part of the New People’s Army.
I do not know who sent the letter. I can think of no less than four sensitive cases that I am involved with that could have occasioned the treat. There’s the Ampatuan massacre case, the Gerry Ortega murder case, the Evangelista torture case, and the murder case of Manolo Daza, brother of former Deputy Speaker Raul Daza. And yet, despite the fact that the threat may have come from anyone connected with any of these cases, I opted to join the Habeas Data petition against the Comelec, if only to eliminate the poll body as being the source of this latest threat to my life and security.
The writ of habeas data was enacted by the Supreme Court under then Chief Justice Reynato Puno as a means of utilizing the Court’s rule-making powers to protect and promote the right to life. It was promulgated by the Supreme Court after it declared “all branches of government to be in breach of the duty to protect and promote the right to life”. This right is undoubtedly the most important of all rights since without it, no exercise of any other human right could be possible. It was intended “for people whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, x x x engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party”. The relief that may be ordered when the writ is issued includes: “updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of”.
I suspect both Brilliantes and Valte as among those behind the threat because both have made statements to the media acknowledging the use of no less than P30 million in intelligence funds to “surveil election saboteurs” such as the AES Watch. I am a founding convenor of this group. Said Brillantes to the media : “Bakit sila matatakot kung wala silang ginawang masama? Talaga namang ginagamit ang intel fund sa mga nagsasabotahe ng election” or only to those out to sabotage the polls. “Kapag natatakot sila, ibig sabihin meron sila sigurong ginagawang masama”. Later Brilliantes added: “They made our life difficult. Now, they should watch out how I get payback“.
Valte for her part, confirmed that it was the President that gave Comelec the P30 million in intelligence fund: “The justification is supposed to be utilized for intelligence, counter-intelligence activities and gathering of information relative to the activities of certain groups, individuals and technology experts suspected of conducting overt and covert operations to sabotage the results of the elections.”
I repeat, I do not have evidence on who was responsible for the latest threat on my life. But because I consider this as serious, lest I end up as part of the growing statistics of victims of extra-legal killings, I filed the petition to narrow down the possibilities.
Under the writ, I hope to obtain the information gathered by the COMELEC, which prompted Brilliantes to label us in AES watch as a group of “saboteurs”. Note that Brilliantes has also said that he will expose the groups behind us. He has never made that disclosure. Meanwhile, I am entitled to know exactly what information the Comelec has to rule out the possibility that the COMELEC or Valte is responsible for the latest threat against me.
In any case, I would like to assure everyone that since the time we filed our petition impugning the constitutionality of the use of the precinct count optical scan machines in 2009, we have been guided solely by the concern that the chosen automated election system, the PCOS, violates the constitutional right to secret voting and public counting. Our concern currently is unless the safeguards provided by law are complied with, to wit: examination of the source code, use of digital signatures, and enabling vote verification, are implemented by the Comelec; the right of the people to a clean elections would be the subject of continuing violation. For what it is worth, the contractor, Smartmatic, had already earned its profit. Presumably, all those who made money from the use of the PCOS have also already cashed in. Isn’t it time now that the voters are accorded their right to public counting of their ballots?
I do not know how the Supreme Court will resolve the petition. All that I can do as one whose life and security is under threat is to avail of all legal remedies to protect my rights.
I leave the rest to God.
source: Manila Standard's Column of Atty Harry Roque, Jr.
I was one of those who filed yesterday a petition for the issuance of a writ of habeas data against Commission on Elections Chairman Sixto Brilliantes and Deputy Presidential Mouth Abigal Valte. I decided to join the petition because last Monday, my law office received a registered mail which contained a letter threatening my life. The letter asked me not to “allow myself to be used ” and to” refrain from wasting my intelligence”. It was signed by the “Rodante Untal Command” which purportedly is part of the New People’s Army.
I do not know who sent the letter. I can think of no less than four sensitive cases that I am involved with that could have occasioned the treat. There’s the Ampatuan massacre case, the Gerry Ortega murder case, the Evangelista torture case, and the murder case of Manolo Daza, brother of former Deputy Speaker Raul Daza. And yet, despite the fact that the threat may have come from anyone connected with any of these cases, I opted to join the Habeas Data petition against the Comelec, if only to eliminate the poll body as being the source of this latest threat to my life and security.
The writ of habeas data was enacted by the Supreme Court under then Chief Justice Reynato Puno as a means of utilizing the Court’s rule-making powers to protect and promote the right to life. It was promulgated by the Supreme Court after it declared “all branches of government to be in breach of the duty to protect and promote the right to life”. This right is undoubtedly the most important of all rights since without it, no exercise of any other human right could be possible. It was intended “for people whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, x x x engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party”. The relief that may be ordered when the writ is issued includes: “updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of”.
I suspect both Brilliantes and Valte as among those behind the threat because both have made statements to the media acknowledging the use of no less than P30 million in intelligence funds to “surveil election saboteurs” such as the AES Watch. I am a founding convenor of this group. Said Brillantes to the media : “Bakit sila matatakot kung wala silang ginawang masama? Talaga namang ginagamit ang intel fund sa mga nagsasabotahe ng election” or only to those out to sabotage the polls. “Kapag natatakot sila, ibig sabihin meron sila sigurong ginagawang masama”. Later Brilliantes added: “They made our life difficult. Now, they should watch out how I get payback“.
Valte for her part, confirmed that it was the President that gave Comelec the P30 million in intelligence fund: “The justification is supposed to be utilized for intelligence, counter-intelligence activities and gathering of information relative to the activities of certain groups, individuals and technology experts suspected of conducting overt and covert operations to sabotage the results of the elections.”
I repeat, I do not have evidence on who was responsible for the latest threat on my life. But because I consider this as serious, lest I end up as part of the growing statistics of victims of extra-legal killings, I filed the petition to narrow down the possibilities.
Under the writ, I hope to obtain the information gathered by the COMELEC, which prompted Brilliantes to label us in AES watch as a group of “saboteurs”. Note that Brilliantes has also said that he will expose the groups behind us. He has never made that disclosure. Meanwhile, I am entitled to know exactly what information the Comelec has to rule out the possibility that the COMELEC or Valte is responsible for the latest threat against me.
In any case, I would like to assure everyone that since the time we filed our petition impugning the constitutionality of the use of the precinct count optical scan machines in 2009, we have been guided solely by the concern that the chosen automated election system, the PCOS, violates the constitutional right to secret voting and public counting. Our concern currently is unless the safeguards provided by law are complied with, to wit: examination of the source code, use of digital signatures, and enabling vote verification, are implemented by the Comelec; the right of the people to a clean elections would be the subject of continuing violation. For what it is worth, the contractor, Smartmatic, had already earned its profit. Presumably, all those who made money from the use of the PCOS have also already cashed in. Isn’t it time now that the voters are accorded their right to public counting of their ballots?
I do not know how the Supreme Court will resolve the petition. All that I can do as one whose life and security is under threat is to avail of all legal remedies to protect my rights.
I leave the rest to God.
source: Manila Standard's Column of Atty Harry Roque, Jr.
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