Showing posts with label Legal Tidbits. Show all posts
Showing posts with label Legal Tidbits. Show all posts

Tuesday, November 13, 2012

Election: A Season to Level the Playing Field and Debunk Political Dynasties



As I sat before my laptop during this cold windy midnight while watching the late night news on TV regarding the recently concluded US Presidential election with Democrat Barack Obama pitting against the Republican Mitt Romney, I can’t help myself to gaze upon the calendar and wonder whether the 2013 election we will be having here in the Philippines would be magnificent, clean, peaceful, and honest, too. Yes, the last day of registration for the 2013 election had passed already and the long queue that flocked to the different field offices of Commission on Election (COMELEC) nationwide no longer exists. Everybody is preparing for the May 13, 2013 election - the eventful day when Filipinos are going to play a game in the playing field where everyone is treated as equal, where there is neither rich nor poor, and where we would amazingly act as superhero with intergalactic superpowers for utilizing a super weapon --- our precious single vote --- when we go out in the playing field trusting that our sacred right and treasured privilege to govern and be governed shall make a difference in the lives of our people and shall chart the destiny of our beloved country.

I am pretty sure everybody is excited for this forthcoming election because it signifies hope and a new beginning towards the “straight path” of governance unwaveringly pursued by our Honorable President Benigno S. Aquino, Jr,. It cannot be denied, however, that along the feeling of excitement that comes with the 2013 election is the burning issue of political dynasty. Political dynasty can trace its roots from the Spanish era when public positions were given only to favored families, mestizos, and illustrados who have immense wealth and property which ultimately enabled them to muster the necessary machinery thereby monopolizing the democratic space especially in acquiring elective and appointive positions. It is indubitable from this historical account then that political dynasty has actually long embedded in our Philippine culture. The system of oligarchy which ultimately causes social decadence in the political arena and undermines the democracy we have long upheld as a nation has continued until the birth of the 1987 Constitution which primarily aims to restore the democracy and our freedom from the bondage of our colonial past. Article II, Section 26 of the fundamental law provides that:

“The state shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.”

However, despite the foregoing, the seemingly “politically dynasty-controlled” Congress has failed the nation to enact enabling law that will solidify the spirit and intent of the framers of the 1987 Constitution. Of course, passing a law that prohibits political dynasty would unduly prejudice those belonging to politically dynasty-ruling elite for it shall eventually spoil the strong social, economic, and political base they already built from the time of the kingship of their political clan. The absence of enabling law prohibiting political dynasty undoubtedly results to inequity in the social, economic and political sphere for it hinders one with nothing but leadership capacity and genuine desire to serve to be voted and elected upon. This does not mean, however, that those who have been elected to public positions by virtue of the influence of ruling political dynasty have no leadership capacity and genuine desire to serve. What we mean when we speak of “political dynasty” is the “lack of opportunity” of the equally qualified people to have an access to public positions, which is triggered by the monopoly of the oligarchs enjoying the ample of resources acquired through the positions they have occupied since time immemorial.

The most recent attempt to pass a law prohibiting political dynasties is Senate Bill No. 2649, introduced by Senator Miriam Defensor Santiago on January 24, 2011 during the 1st regular session of the 15th Congress. Other bills were also filed by then Senator Alfredo Lim in 2004 (SB-1317), Senator Panfilo Lacson in 2007 (SB-1468), and Rep. Teddy Casino (House Bill-2493) also in 2007. These attempts at leveling the playing field demonstrate people’s thirst for young blood, and new breed of statesman devoid of the vestiges of political progeny and traditional politicians.

"Political Dynasty" shall exist when a person who is the spouse of an incumbent elective official or relative within the second civil degree of consanguinity or affinity of an incumbent elective official holds or runs for an elective office simultaneously with the incumbent elective official within the same province or occupies the same office immediately after the term of office of the incumbent elective official. It shall also be deemed to exist where two (2) or more persons who are spouses or are related within the second civil degree of consanguinity or affinity run simultaneously for elective public office within the same province, even if neither is so related to an incumbent elective official (Senate Bill 2649, 1st regular session of the 15th Congress).

It is a view that political dynasty predominantly exists among various local government units (LGU) in the country. It is in this context that the proposed Senate Bill No.1317 by then Senator Alfredo Lim, now a Mayor of Manila, deemed relevant. According to him, in its Explanatory Note, “the bill seeks to end the exercise and control of political power and authority in a political unit by two or more members of the same family related within the 3rd civil degree of (consanguinity or affinity either simultaneously or in succession. [Hence] under the proposed bill, a mayor who finishes his three (3) terms cannot be succeeded by his wife, child or any relative within the 3rd degree. Likewise, no relative of the mayor may run as congressman, vice mayor, councilor or even any barangay position in the same municipality or city for as long as he sits as mayor in that place. The rule applies with equal force to provincial levels and autonomous regions (last par. Explanatory Note, Senate Bill No.1317). This provision is truly helpful in eradicating political dynasty at the local level especially when the same will be harmonized with Section 9 of Senate Bill No. 1468 by Senator Panfilo Lacson which strengthens the effect of the violation of the anti-dynasty law, which reads:

“SECTION 9. Effect of Violation of Prohibition. -The COMELEC shall, upon the filing of a verified petition by any interested party, deny due course any certificate of candidacy filed in violation of this Act and the votes cast for the disqualified candidate, if any, shall not be counted nor shall such candidate be proclaimed nor be qualified to assume office.

Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall also constitute an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa BIg. 881)”

With all these efforts to end the oligarchic system of politics, one may ask himself or herself whether there could be a fruitful result afterwards. Well, for now, the answer lies not on the future passage of the Anti-Political Dynasty Law which has long been overdue because of the existing complicated issues appurtenant with it but on our hands as Filipino citizens when election time comes in. In the advent of the prevailing technological revolution amidst the May 2013 election, a just society bounded by new politics and people empowerment will no longer be a mystic dream because the power to change for the betterment of our society lies in the hands of our electorate. This country needs a just society where there is a free rein of social justice and new politics dismantling the patronage system that is based on personality, popularity, and influence rather than on issues and platforms of good governance. It is during this season of election that we will have the opportunity to level the playing field and debunk the growth of political dynasties as we travelled through the straight path of governance envisioned by our beloved President Aquino. 



Sunday, September 9, 2012

A.M. No. 12-8-8-SC Judicial Affidavit Rule


The Supreme Court has embarked on another voyage of innovatively dealing with decongestion of cases and speedy resolution of trials without compromising the rights of the accused, law of evidence, and the rule of law as well. The implementation of the Judicial Affidavit Rule is one of the judicial reform programs of the Supreme Court which will truly lessen the period of judicial proceedings. The following are the pertinent provisions of the Judicial Affidavit Rule:

Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC;

(2) The Regional Trial Courts and the Shari' a District Courts;

(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari' a Appellate Courts;

(4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the
Philippine (IBP); and

(5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule.

(b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers shalJ be uniformly referred to here as the "court."

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. - (a) The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following:

(           (1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and

            (2)  The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted. This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules.

Sec. 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino accompanied by a translation in English or Filipino, and shall contain the following:

(a)  The name, age, residence or business address,   and  occupation of the witness;

(b)  The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held;

(c)  A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury;

(d)  Questions asked of the witness and his corresponding answers,consecutively numbered, that:

(1) Show the circumstances under which the witness acquired the facts upon which he testifies;
(2)  Elicit from him those facts which are relevant to the issues that the case presents; and
(3)  Identify the attached docun1entary and object evidence and establish their authenticity in accordance with the Rules of Court;

               (e)   The signature of the witness over his printed name; and

(f)   A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same.

Sec. 4. Sworn attestation of the lawyer. - (a) The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the ·witness, to the effect that:

(1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and

(2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers.

(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment.

Sec. 5. Subpoena. - If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail hinmself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte.

 Sec. 6. Offer of and objections to testimony in judicial affidavit.- The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the notion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Sec. 8. Oral offer of and objections to exhibits. - (a) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit.

(b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit.

(c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit.

Sec. 9. Application of rule to criminal actions. - (a) This rule shall apply to all criminal actions:

(1) Where the maximum of the imposable penalty does not exceed six years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or
(3) With respect to the civil aspect of the actions, whatever the penalties involved are.

(b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial.

(c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify.

Sec. 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than Pl,OOO.OO nor more than P5,OOO.OO, at the discretion of the court.


(b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination the witnesses there present.

c) The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4 above. The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than Pl,OOO.OO nor more than P5,OOO.OO, at the discretion of the court. http://sc.judiciary.gov.ph/admin%20matters/others/A.M.%20No.%2012-8-8-SC.pdf  





Tuesday, September 4, 2012

RA 10172 or the Law Expanding the Clerical Error Law

Welcome back!! Hello September! It’s been BERmonths and I just can feel the cool breeze of the wind flipping through my hair. It is another month of exciting journey because I will feature some of the latest laws relevant and applicable to our everyday lives. I was snowed under   during the past few months due to my load but I am here now to continue this saga of my “Legal Tidbits.”
 The passage of RA 10172 otherwise known as “An Act Authorizing the City or Municipal Registrar or the Consul General to correct Clerical Errors in the Day and Month in the date of birth or Sex of a person appearing in the civil register without need of judicial order” clearly eased the burden of many Filipinos who are continually beset by problems regarding errors in the entries of civil registry documents such as birth certificates.  However, the law does not only relieve the people of the nagging problems such as non-issuance of passports from the Department of Foreign Affairs (DFA), denial of claims with the Government Service Insurance System (GSIS), Social Security System (SSS) and other government agencies because of error among civil registry documents and the expensive and tedious legal process but it also helps decongest court dockets considering that the remedy provided for under the law is purely administrative in nature.

The law expands the coverage of RA 9048 or the Clerical Error Law which originally pertains to a change or correction of first name or nickname only. With the legislation of RA 10172, aside from change of first name or nickname, correction of errors in the day and month in the date of birth and sex of a person can also be made through the submission of the following documents:
1.   Petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths stating the facts necessary to establish the merits of the petition;
2.   A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed;
3.   Earliest school record or earliest school documents such as, but not limited to, medical records, baptismal certificate and other documents issued by religious authorities;
4.   Certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone sex change or sex transplant.
5.   Certification from the appropriate law enforcements, agencies that he has no pending case or no criminal record.
The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and third copy to the petitioner (Section 5, RA 10172).

The petition for change of first name or nickname, or for correction of erroneous entry concerning the day and month in the date of birth or the sex of a person, as the case may be, shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation (Section 5, RA 10172).http://www.gov.ph/2012/08/15/republic-act-no-10172/

The State, thus, through its law-making power by the legislative branch of the government was able to effect the realization of the spirit and letter of the law. Mazzini[1], one of the great political thinkers, pointed out that “the law must express the general aspiration, promote the good of all, respond to a beat of the nation’s heart. The whole nation therefore should be, directly or indirectly, the legislator.” We are thankful that the good Valenzuela City Representative Magi Gunigundo principally authored the law which paved the way for lessening the inconvenience and fulfilling the needs and aspiration of the people.



[1] Curtis, Michael. The Great Political Theories Vol. 2 The New Expanded Edition

Tuesday, August 14, 2012

Women Empowerment

Women empowerment has already been a common buzzword in this era of postmodernism and age of globalization. In 2011 the World Economic Forum (WEF) ranked the Philippines in the 8th place as the country with the least gender gap. We are happy that our country recognizes the indispensable role of women in nation building and consider women as effective partner of men in pursuit of development – politically, culturally, economically, and socially. It is indeed true that the term “women empowerment” has become glamorized in the past which purportedly portrays power domination of women over men; however, as time flies by, re-definition of the term has become a necessity. Women empowerment signifies freedom to exercise women’s right of choice, to know their rights under the law and peacefully assert those rights and to fulfill the concomitant obligations and responsibilities therefrom to attain development. 

        In today’s modern society, women have been enjoying wonderful opportunity in varied sectors of industry, politics, government, and even in non-government organizations and other private companies. In the working world, women occupied special groups of employees whose rights are protected pursuant to Article II, Section 14 of the 1987 Philippine Constitution which provides:


“The State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men.” 



The following provisions under the Labor Code of the Philippines espouses the declaration of state policies to afford full protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employees.



A. Requiring Facilities for Women (Article 130, LC) such as provide seats proper for women, establish separate toilet rooms, lavatories and dressing rooms, nursery in the workplace, determine appropriate minimum age and other standards for retirement or termination in case of special occupations such as those of flight attendants and the like.


B. Maternity Leave Benefits (Article 131, LC)


C. Requiring free family planning services and incentives (Article 132, LC)


D. Prohibiting discrimination on account of sex (Article 133, LC) also considered as crime under RA 6725


E. Outlawing stipulation against marriage (Article 134, LC)


F. To make unlawful prohibited acts of an employer such as to deny legal benefits or to discharge a woman employee to prevent her from enjoying them, to discharge her on account of pregnancy, or while on leave or in confinement due to pregnancy, or to discharge or refuse her admission upon returning to work for fear that she may again be pregnant (Article 135, LC)



            On June 21, 2011, Republic Act 10151 (An Act Allowing the Employment of Night Workers) was passed which cover employees who work at night (which includes the period of 12 MN to 5 AM) for a period not less than seven (7) consecutive hours. It shall not cover those employed in agriculture, stock rising, fishing, maritime transport, and inland navigation. 

             The following are the rights of night workers:
1. Right to free health assessments (Article 155)

2. Right to be transferred to a similar job which they are fit to work, whenever practicable, if found unfit for night work due to health reasons (Article 157)

3. Right to safe and working conditions (Article 156)

4. Right of pregnant women to alternative to night work (Article 158).

5. Right of pregnant women against dismissals and diminution of benefits on account of pregnancy childbirth and childcare responsibilities (Article 158)

6. Right to be regularly consulted on the following: schedules and the forms of organization of night work that are best adapted to the establishment and its personnel and the occupational health measures and social services (Article 161).


            The law also emphasizes that only pregnant women and nursing mothers are not allowed to work at night but they may be allowed to work at night if:


         1. certified by a competent physician other than the company  physician; and

            2. in the case of pregnant women, the physician specifies the period of pregnancy that they can safely work (Article 158)


        The full text of the law is available at http://www.gov.ph/2011/06/21/republic-act-no-1015



           
          In addition to the passage of Republic Act 10151 and Magna Carta for the Kasambahay 2005, it is also a welcome development that the Philippine Senate has recently ratified the International Labor Organization 189 which espouses the protection and promotion of domestic workers worldwide. The recent ratification of the treaty sends a strong message that our country is highly committed to implement its obligations under the Convention and to protect the rights of domestic workers who are mostly women to a more humane and better working conditions both in and out of the country. 
          
         The road towards full women empowerment has a long way to go however it starts from one small leap by inculcating awareness of our rights under existing laws. Let us always be vigilant and be proactive in asserting those rights while simultaneously upholding our deep-rooted sacred values and significantly contributing our talents, skills and resources in nation building and development. 


Monday, January 10, 2011

Population Management

There is a need to undertake a management population policy because our country presently consists of more than 88 million people.   Population explosion is an issue that must not be taken for granted. Knowledge on how to manage the population spells the success of any government strategies to achieve development and economic growth.  Some say that dense population causes chronic poverty and underdevelopment. When there is overpopulation, the supply of food, sanitation, access to health care, and quality education are sometimes neglected because government cannot allocate enough resources to sustain the needs of the growing population.

            High infant mortality rate, malnutrition, poor sanitation, poor maternal and child health care, abortion, and high mortality rate indicates that the government gives low priority to health sector.  However, at present, the government is not neglectful with this area of concern because we can see that there are many government programs that focus on the accessibility of health services and quality education to our people. Government is mindful that true development starts with the development of our vibrant, knowledgeable, and healthy citizenry. 

Thus, even though we have 88 million people, still we are optimistic that we can achieve economic development. Population explosion is not a hindrance to economic development because population density is an indicator of development. It is believed that a great number of quality and productive people provides an efficient and effective workforce. For instance, our overseas Filipino workers serve as our unsung heroes for their huge dollar remittances that continually generate government funds and treasure. Without them, we will experience a gloom in the economy. Thus, dense population must no longer be a problem for any developing countries. What is important is that there are quality and productive population. Government needs only to develop our human resources and a management population policy that will truly enhance the potentials of our people.