Dissension in the Court: December 2011

The following relates to select decisions promulgated by the High Court in December 2011 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.

1.         Probation or Not? (Abad vs. Peralta and Villarama)

In the case of Arnel Colinares vs. People of the Philippines, Arnel Colinares was found guilty by the Regional Trial Court (RTC) of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation.

Colinares appealed to the Court of Appeals invoking self-defense and, alternatively, seeking conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him.  However, the Court of Appeals affirmed the decision of the RTC.

Acting on his Petition for Review, the Supreme Court, through Justice Roberto A. Abad, found Colinares guilty of committing only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum.  As a result, the Supreme Court held that since the maximum imposable penalty was now less than six years, Colinares may apply for probation upon remand of the case to the trial court.

Justice Diosadado M. Peralta took exception to this ruling of the majority, emphasizing that probation is not a right but a privilege.

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Dissension in the Court: September 2011

The following is a summary of a recent decision on an administrative matter promulgated by the High Court in September 2011 where one Justice felt compelled to express his dissent from the decision penned by the ponente-who-must-not-be-named.

1.         Respect Thy Co-Equals (“Per Curiam” vs. Abad)

On November 29, 1997, the Regional Trial Court (RTC) of Iligan City rendered a decision, holding the Mindanao State University (MSU) liable for damages amounting to P2,726,189.90 on account of a vehicular accident that resulted in one death and several physical injuries. The Court of Appeals (CA) affirmed the Iligan City RTC decision and the CA decision subsequently lapsed to finality. Eventually, on January 19, 2009, an Entry of Judgment was made.

On March 10, 2009, the Iligan City RTC issued a writ of execution.  Having failed to comply with the writ, on March 24, 2009, Sheriff Gerard Peter Gaje served a Notice of Garnishment on the MSU’s depository bank, the Marawi City Branch of the Land Bank of the Philippines (LBP), garnishing the amount of the judgment.

Acting on behalf of the MSU, the Office of the Solicitor General (OSG) opposed the motion for execution, albeit belatedly. The opposition was denied, however, by the Iligan City RTC. The MSU responded to the denial by subsequently filing a petition with the Marawi City RTC which was eventually raffled to Judge Rasad G. Balindong, for prohibition and mandamus with an application for the issuance of a temporary restraining order (TRO) and/or preliminary injunction against the LBP and Sheriff Gaje.  The petition essentially asserted that the funds being garnished were government funds which thus required certain procedures involving the Commission on Audit (COA) before they could be garnished and that the act of garnishment would disrupt the MSU’s operations. The petition of MSU was raffled to the RTC, Marawi City, Branch 8, presided by respondent Judge.

Judge Balindong set the application for the issuance of a TRO for hearing following which he issued a TRO restraining Sheriff Gaje from garnishing P2,726,189.90 from the MSU’s LBP-Marawi City Branch account.

Thereafter, the respondent Judge conducted a hearing on the application for the issuance of a writ of preliminary injunction.  Sheriff Gaje moved to dismiss the case on the ground of lack of jurisdiction and Judge Balindong granted the motion and dismissed the case.

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Dissension in the Court: June 2011

The following relates to select decisions promulgated by the High Court in June 2011 where at least one Justice felt compelled to express his dissent from the decision penned by the ponente.

1.         Informed Consent (Villarama vs. Carpio)

In essential issue in the case of Dr. Rubi Li vs. the Spouses Reynaldo and Lina Soliman was whether or not Dr. Li, a medical oncologist, should be held liable for damages on account of medical malpractice.  According to the majority decision penned by Justice Martin S. Villarama, Jr., the answer is no.  According to the dissenter, Justice Antonio T. Carpio, the answer is yes.

Sometime in July 1993, Angelica Soliman, the 11-year old daughter of Reynaldo and Lina Soliman, was diagnosed with a highly malignant form of bone cancer that usually afflicts teenage children.  This condition required Angelica’s leg to be amputated.  To eliminate any remaining cancer cells, minimize the chances of recurrence and prevent the disease from spreading to other parts of Angelica’s body, chemotherapy was suggested and eventually, Angelica was referred Dr. Li.

In August of 1993, Angelica was administered the first cycle of the chemotherapy regimen.  However, 11 days later, Angelica passed away.

The Soliman spouses filed an action for damages against Dr. Li, claiming, among other things, that Dr. Li had assured them that Angelica would recover in view of 95% chance of healing with chemotherapy.  And that wwhen they had inquired about side effect, they claim that Dr. Li mentioned only slight vomiting, hair loss and weakness. Angelica had, however, suffered far greater side effects from the chemotherapy and accordingly, the Solimans claimed that they would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

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Dissension in the Court: April 2011

The following is a summary of a recent decision promulgated by the High Court in April 2011 where one Justice felt compelled to express his dissent from the decision penned by the ponente.

1.         Negligence or No Negligence? (Carpio-Morales vs. Bersamin)

On April 13, 2011, the Supreme Court issued its ruling in the case of Ocean Builders Construction Corp. and/or Dennis Hao vs. Spouses Antonio and Anicia Cubacub.  Justice Conchita Carpio-Morales penned the majority decision.  Although the decision was rendered by the Supreme Court from the cool comforts of its Baguio City summer sanctuary, Justice Lucas Bersamin opted to turn up the heat as sole dissenter.

Ocean Builders, of which petitioner Dennis Hao was general manager, employed Bladimir Cubacub as a maintenance man.  On April 9, 1995, Bladimir fell ill to chicken pox as a result of which Hao advised him to rest for three days, which Bladimir promptly did at the company’s barracks.  Three days later, according to the ponente, Bladimir proceeded with his usual chores of manning the gate of the company premises and even cleaned company vehicles.

Apparently still not feeling well, he asked a co-worker to accompany him to his house in the province of Tarlac.  Upon being informed of this request, Hao gave Bladimir P1,000.00 and instructed Bladimir’s co-worker to instead bring Bladimir to the nearest hospital.  Thus, on April 12, 1995, Bladimir was taken to the Caybiga Community Hospital, a primary-care hospital around one kilometer away from the office of the company, and in which Bladimir was confined.

At the request and suggestion of the attending physician, Bladimir’s parents, respondent spouses Antonio and Anicia Cubacub, together with a friend, Dr. Hermes Frias, arrived at the hospital the following day and transferred Bladimir to the Quezon City General Hospital (QCGH) where he was placed in the intensive care unit.  Bladimir died the following day, April 14, 1995.

The death certificate issued by the QCGH recorded Bladimir’s immediate cause of death as cardio-respiratory arrest and the antecedent cause as pneumonia. On the other hand, the death certificate issued by Dr. Frias recorded the causes of death as cardiac arrest, multiple organ system failure, septicaemia and chicken pox.

Around four months after Bladimir’s death, his parents filed a tort action for damages before the Regional Trial Court of Tarlac alleging that Hao was guilty of negligence which resulted in the deterioration of Bladimir’s condition leading to eventual his death.

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Dissension in the Court: March 2011

The following is a summary of a recent decision promulgated by the High Court in March 2011 where one Justice felt compelled to express her dissent from the decision penned by the ponente.

1. An Uncooperative Audit (Villarama vs. Sereno)

The case of Verzosa vs. Carague involves the Cooperative Development Authority (CDA) and an uncooperative Commission of Audit (COA).

Sometime almost twenty years ago, the CDA conducted a public bidding for the supply to the CDA of computer equipment and peripherals. The three entities that took part were Tetra Corporation-Trigem Computers (Tetra), Microcircuits Co. (Microcircuits), and Columbia Computers (Columbia).

Following the bidding, the evaluation (which also included a technical evaluation made by the Development Academy of the Philippines (DAP) at the request of the CDA) and the ensuing approval given by Candelario L. Versoza, Jr. as the CDA’s Executive Director, in December 1992, Tetra was awarded the supply contract for the total amount of P2,285,279.00, which was eventually paid by the CDA to Tetra.

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Dissension in the Court: February 2011

The following relates to select decisions promulgated by the High Court in February 2011 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.

1.         No Retreat, No Surrender (Velasco vs. Carpio)

The Rome Statute

In December of 2000, the Philippines became a signatory to the Rome Statute, an international treaty which created the International Criminal Court (ICC), through which the International Criminal Court (ICC) was established with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions.”  The serious crimes covered by the Rome Statute pertain to those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.  To date, however, the ratification by the Senate of the Rome Statute is still pending.

Included among the provisions of the Rome Statute are certain obligations imposed on parties to the treaty to surrender persons charged with covered crimes upon the request of the ICC.

The Non-Surrender Agreement

In May of 2003, through an Exchange of Notes, the Philippine government agreed to, and accepted the terms of, the United States proposed non-surrender bilateral agreement (NSA).  The NSA in pertinent part, provides that current or former Government officials, employees (including contractors), or military personnel or nationals of one Party that are present in the territory of the other Party shall not, absent the express consent of the first Party, be surrendered by the second Party to any international tribunal or to a third country for purposes of being surrendered to an international tribunal, unless it is to a UN Security Council tribunal.

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Dissension in the Court: January 2011

The following is a decision promulgated by the High Court in January 2011 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.

1.         Sui Generis (Leonardo-de Castro vs. Carpio)

The case of Dante V. Liban, et al vs. Richard J. Gordon originated from a petition filed by petitioners to declare Gordon as having forfeited his seat in the Senate when he accepted the chairmanship of the Board of Governors of the Philippine National Red Cross (PNRC). According to the petitioners, Gordon had violated Section 13, Article VI of the 1987 Constitution, which reads:

SEC. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

In its original decision, the Supreme Court ruled that Senator Gordon did not commit such a violation because the PNRC, having been established in March 22, 1947 through Republic Act No. 95, was not a government-owned or controlled corporation, but a private corporation or organization albeit performing public functions.

That ruling, however, engendered a resultant query as to whether or not then, the PNRC was unconstitutionally established by the legislature given that under Section 7, Article XIV of the then effective 1935 Constitution, it was provided that:

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality thereof.

Similar prohibitions are found in Article XIV, Section 4 of the 1973 Constitution and Article XII, Section 16 of the 1987 Constitution.  The latter reads:

SECTION 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

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