New Poll: Plagiarism in the Philippine Supreme Court?

The Supreme Court has finally spoken – Justice Mariano C. del Castillo is not guilty of plagiarism (see In the matter of the charges of plagiarism, etc., against Associate Justice Mariano C. Del Castillo, October 12, 2010).  Not all justices agreed with the ruling (see Justice Maria Lourdes P.A. Sereno’s dissenting opinion here).

The Supreme Court also ordered several faculty members of the UP College of Law to show cause why they should not be disciplined as members of the Bar for signing a statement entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court.” (see Re: Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court, October 19, 2010).  Again, not all justices agreed (see Justice Sereno’s dissenting opinion here and Justice Conchita Carpio-Morales’ dissenting opinion here).

If you were a justice of the Supreme Court, how would you vote?  See ballot on the right hand side column.

Regulations Update: PSE Listing Rules for Real Estate Investment Trusts

The Philippine Stock Exchange recently adopted the Listing Rules for Real Estate Investment Trusts (REITS) which took effect on October 8, 2010. The Listing Rules were made in accordance with the requirement under Republic Act No. 9856 (the REIT Act of 2009) that the shares of stock of a REIT must be listed pursuant to the rules of the Exchange.

A REIT is a stock corporation established under the Corporation Code principally for the purpose of owning income-generating real estate assets. Under the Listing Rules, in addition to the criteria established under the Listing and Disclosure Rules of the Exchange, a REIT must also comply with the following criteria to qualify for listing:

1.     It must have a dividend policy of distributing annually at least 90% of its distributable income as dividends to its shareholders;

2.     It must have at least 1,000 public shareholders, each owning at least 50 shares and who in aggregate own one-third of the outstanding capital stock;

3.     It must have a minimum paid-up capital of P300 million;

4.     At least 75% of its property must be invested in income-generating real estate;

5.     At least one-third, and in no case less than two, of its board of directors must be independent directors; and

6.     It must appoint a fund manager and property manager in accordance with the law.

A REIT must also comply with the reportorial and disclosure requirements under the Corporation Code, the Securities Regulation Code, the Exchange and the REIT Act.

Once listed, a REIT must comply with the continuing listing requirements of the Exchange, such as the maintenance of its status as a public company, the distribution of at least 90% of its distributable income to its investors, and the valuation of its assets by an independent valuation company.  Otherwise, the REIT could be subject to delisting.

Philippine Laws: September 2010

On the fourth month of his presidency and the third month of the 15th Congress, P-Noy was again not able to approve a new law in September 2010.  One law, however, was published in two newspapers of general circulation on October 9, 2010, and consequently became effective on October 24, 2010.  This was Republic Act No. 10143, or the Philippine Tax Academy Act, which was approved by the House of Representatives on February 1, 2010 and by the Senate on June 4, 2010, and lapsed into law on July 31, 2010 without the signature of President GMA.

The Act created the Philippine Tax Academy which shall serve as a learning institution of primarily tax collectors and administrators of government.  It will handle all the trainings, continuing education program, and other courses for all officials and personnel of the Bureau of Internal Revenue (BIR), the Bureau of Customs (BOC), and the Bureau of Local Government Finance (BLGF).  The Academy will develop and implement a curriculum not only on the technical aspects of tax collection, administration and compliance, but also on the career orientation and development for civil servants.  It shall seek to mold, develop and enhance the skills and knowledge, moral fitness, efficiency and capability of tax collectors and administrators.

All existing officials and personnel of the BIR, BOC and BLGF are required to undergo the re-tooling and enhancement seminars and training programs of the Academy.  Moreover, all applicants are required to pass the basic courses before they can be hired by these government agencies whether on a contractual or permanent status.

The Academy will have a 7-member Board of Trustees, with the representative from the Department of Finance as ex officio Chairperson, the representatives from the BIR and BOC as ex officio Vice-Chairpersons, the representative from the BLGF and 3 representatives from the academe (with 5-year teaching experience from reputable schools) as members.  The representatives from the BIR, the BOC and the BLGF will be chosen from nominees of the Secretary of Finance, while the representatives from the academe will be chosen from nominees of state universities and/or accredited private educational institutions. The members of the Board of Trustees will serve for a term of 3 years.

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September 2010 Philippine Supreme Court Decisions on Legal and Judicial Ethics

Here are selected September 2010 rulings of the Supreme Court of the Philippines on legal and judicial ethics:

Attorney; mistake binding on client. Petitioner cannot simply harp on the mistakes and negligence of his lawyer allegedly beset with personal problems and emotional depression.   The negligence and mistakes of counsel are binding on the client.  There are exceptions to this rule, such as when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the general rule results in the outright deprivation of one’s property or liberty through a technicality. However, in this case, we find no reason to exempt petitioner from the general rule. The admitted inability of his counsel to attend fully and ably to the prosecution of his appeal and other sorts of excuses should have prompted petitioner to be more vigilant in protecting his rights and replace said counsel with a more competent lawyer.  Instead, petitioner continued to allow his counsel to represent him on appeal and even up to this Court, apparently in the hope of moving this Court with a fervent plea for relaxation of the rules for reason of petitioner’s age and medical condition.  Verily, diligence is required not only from lawyers but also from their clients. Gregorio Dimarucot y Garcia vs.. People of the Philippines, G.R. No. 183975,September 20, 2010.

Attorney; mistake binding on client. Considering the initial 15-day extension granted by the CA and the injunction under Sec. 4, Rule 43 of the 1997 Rules of Civil Procedure against further extensions “except for the most compelling reason”, it was clearly inexcusable for petitioner to expediently plead its counsel’s heavy workload as ground for seeking an additional extension of 10 days within which to file its petition for review.  To our mind, petitioner would do well to remember that, rather than the low gate to which parties are unreasonably required to stoop, procedural rules are designed for the orderly conduct of proceedings and expeditious settlement of cases in the courts of law.  Like all rules, they are required to be followed and utter disregard of the same cannot be expediently rationalized by harping on the policy of liberal construction which was never intended as an unfettered license to disregard the letter of the law or, for that matter, a convenient excuse to substitute substantial compliance for regular adherence thereto.  When it comes to compliance with time rules, the Court cannot afford inexcusable delay. J. Tiosejo Investment Corporation vs.. Sps. Benjamin and Eleanor Ang, G.R. No. 174149, September 8, 2010.

Attorney’s fees. It is settled that a claim for attorney’s fees may be asserted either in the very action in which a lawyer rendered his services or in a separate action.  But enforcing it in the main case bodes well as it forestalls multiplicity of suits.  The intestate court in this case, therefore, correctly allowed Atty. Siapian to interject his claim for attorney’s fees in the estate proceedings against some of the heirs and, after hearing, adjudicate the same on April 3, 1997 with an order for Arturo, et al to pay Atty. Siapian the fees of P3 million due him.  Since the award of P3 million in attorney’s fees in favor of Atty. Siapian had already become final and executory, the intestate court was within its powers to order the Register of Deeds to annotate his lien on the Estate’s titles to its properties.  The Estate has no cause for complaint since the lien was neither a claim nor a burden against the Estate itself.  It was not enforceable against the Estate but only against Arturo, et al, who constituted the majority of the heirs. Heirs and/or Estate of Atty. Rolando P. Siapian, represented by Susan S. Mendoza vs. Intestate Estate of the Late Eufrocina G. Mackay as represented by Dr. Roderick Mackay, et al., G.R. No. 184799, September 1, 2010.

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September 2010 Philippine Supreme Court Decisions on Criminal Law and Procedure

Here are selected September 2010 rulings of the Supreme Court of the Philippines on criminal law and procedure:

Criminal Law

1. Revised Penal Code

Attempted rape; acts of lasciviousness. Insisting that there was no attempted rape, petitioner argues that AAA merely testified that he told her that they would have sexual intercourse, and that “this is not equivalent to carnal knowledge, or even an attempt to have carnal knowledge” since there is no showing that he had commenced or attempted to insert his penis into her sexual organ before she fled. Disagreeing with the accused, the Court ruled that while rape and acts of lasciviousness have the same nature, they are fundamentally different. For in rape, there is the intent to lie with a woman, whereas in acts of lasciviousness, this element is absent. Petitioner’s acts, as narrated by AAA, far from being mere obscene or lewd, indisputably show that he intended to have and was bent on consummating carnal knowledge of AAA. Jaren Tibong y Culla-ag vs. People of the Philippines, G.R. No. 191000, September 15, 2010.

Complex Crime; penalty. ART. 48 of the Revised Penal Code provides that when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Appellant’s single act of detonating an explosive device may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a single criminal impulse which shows his lesser degree of perversity. Thus, applying the aforesaid provision of law, the maximum penalty for the most serious crime, which is murder, is death. Pursuant, however, to Republic Act No. 9346 which prohibits the imposition of the death penalty, the appellate court properly reduced the penalty of death which it previously imposed upon the appellant to reclusion perpetua. People of the Philippines vs. Reynaldo Barde, G.R. No. 183094, September 22, 2010.

Liability of accused; effect of death. The death of the accused during the pendency of his appeal with the Supreme Court totally extinguished his criminal liability. Such extinction is based on Article 89 of the Revised Penal Code. The death of the accused likewise extinguished the civil liability that was based exclusively on the crime for which the accused was convicted (i.e., ex delicto), because no final judgment of conviction was yet rendered by the time of his death. Only civil liability predicated on a source of obligation other than the delict survived the death of the accused, which the offended party can recover by means of a separate civil action. People of the Philippines vs.. Bringas Bunay y Dam-at, G.R. No. 171268, September 14, 2010.

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September 2010 Philippine Supreme Court Decisions on Political Law

Here are selected September 2010 rulings of the Supreme Court of the Philippines on political law:

Constitutional Law

Constitutionality; Presidential Proclamation 310; inalienable lands.  The Court declared as unconstitutional Presidential Proclamation 310, which took 670 hectares from petitioner’s registered lands for distribution to indigenous peoples and cultural communities, on the basis that such lands are inalienable, being part of the functions of an educational institution.  It did not matter that it was President Arroyo who, in this case, attempted by proclamation to appropriate the lands for distribution to indigenous peoples and cultural communities.  The lands by their character have become inalienable from the moment President Garcia dedicated them for petitioner’s use in scientific and technological research in the field of agriculture.  They have ceased to be alienable public lands.  Central Mindanao University, etc. vs. The Hon. Executive Secretary, et al. G.R. No. 184869, September 21, 2010.

Constitutionality; Retail Trade Liberalization Act of 2000.  The Court dismissed petitioners’ argument that Republic Act No. 8762, known as the Retail Trade Liberalization Act of 200, violates the mandate of the 1987 Constitution for the State to develop a self-reliant and independent national economy effectively controlled by Filipinos.  The provisions of Article II of the 1987 Constitution, the declarations of principles and state policies, are not self-executing.  Legislative failure to pursue such policies cannot give rise to a cause of action in the courts.  Further, while Section 19, Article II of the 1987 Constitution requires the development of a self-reliant and independent national economy effectively controlled by Filipino entrepreneurs, it does not impose a policy of Filipino monopoly of the economic environment.  The objective is simply to prohibit foreign powers or interests from maneuvering our economic policies and ensure that Filipinos are given preference in all areas of development.  The 1987 Constitution takes into account the realities of the outside world as it requires the pursuit of a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity; and speaks of industries which are competitive in both domestic and foreign markets as well as of the protection of Filipino enterprises against unfair foreign competition and trade practices.  Thus, while the Constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, it also recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair.  In other words, the 1987 Constitution does not rule out the entry of foreign investments, goods, and services. While it does not encourage their unlimited entry into the country, it does not prohibit them either.  In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair. The key, as in all economies in the world, is to strike a balance between protecting local businesses and allowing the entry of foreign investments and services.  More important, Section 10, Article XII of the 1987 Constitution gives Congress the discretion to reserve to Filipinos certain areas of investments upon the recommendation of the National Economic and Development Authority and when the national interest requires.  Thus, Congress can determine what policy to pass and when to pass it depending on the economic exigencies.  It can enact laws allowing the entry of foreigners into certain industries not reserved by the Constitution to Filipino citizens.  In this case, Congress has decided to open certain areas of the retail trade business to foreign investments instead of reserving them exclusively to Filipino citizens.

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September 2010 Philippine Supreme Court Decisions on Labor Law and Procedure

Here are selected September 2010 rulings of the Supreme Court of the Philippines on labor law and procedure:

Labor Law

Compensable illness. The CBA provision states: “If a seafarer/officer, due to no fault of his own, suffers permanent disability as a result of an accident while serving on board or while traveling to or from the vessel on Company’s business or due to marine peril, and as a result, his ability to work is permanently reduced, totally or partially, the Company shall pay him a disability compensation.” “Accident” has been defined as: A fortuitous circumstance, event, or happening, an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens. The Court holds that the snap on the back of respondent was not an accident, but an injury sustained by respondent from carrying the heavy basketful of fire hydrant caps. The injury cannot be said to be the result of an accident or fortuitous event. It resulted from the performance of a duty.  Although the disability of respondent was not caused by an accident, his disability is still compensable under the CBA provision: “A seafarer/officer who is disabled as a result of any injury, and who is assessed as less than 50% permanently disabled, but permanently unfit for further service at sea in any capacity, shall also be entitled to a 100% compensation.” NFD International Manning Agents, Inc./Barber Ship Management Ltd.  vs. Esmeraldo C. Illescas, G.R. No. 183054, September 29, 2010.

Dismissal; due process. SPO2 Roaquin is entitled to reinstatement since he was dismissed from the service without administrative due process. No one ever filed an administrative action against him in connection with the crime of which he was charged in court. At any rate, assuming that someone filed an administrative charge against Roaquin, still the law required the PNP to give him notice of such charge and the right to answer the same. The PNP gave him no chance to show why he should not be discharged nor does the record show that the PNP investigated him or conducted a summary proceeding to determine his liability in connection with the murder of which he was charged in court.  While the PNP may have validly suspended Roaquin from the service pending the adjudication of the criminal case against him, he is entitled, after his acquittal, to reinstatement and payment of the salaries, allowances, and other benefits withheld from him by reason of his discharge from the service. P/Chief Superintendent Roberto L. Calinisan, etc., et al. vs. SPO2 Reynaldo L. Roaquin, G.R. No. 159588, September 15, 2010.

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