www.soriano-ph.com

Latest:  On 10 February 2010, I filed a petition for prohibition with prayer for injunctive relief docketed as G. R. No. 191032 against the Judicial and Bar Council before the Supreme Court.

There is no provision in the 1987 Constitution that says that the President should appoint the Chief Justice.

All the Constitution provides is that “Members of the Supreme Court x x x” shall be appointed by the President from a list of nominees submitted by the Judicial and Bar Council” (Sec. 9, Art. VIII).

But the Constitution also says that the Supreme Court has the power ”to appoint all officials x x x of the judiciary” (Sec. 5 [6], Art. VIII). And there is no iota of doubt here that the Chief Justice is an “official” of the judiciary, in fact the highest official thereof.

In short, the appointing power of the President extends only to the associate justices (or members) of the Supreme Court, not necessarily to the post of Chief Justice, which the Supreme Court En Banc may legally designate.  Thus, the selection and nominating powers of the Judicial and Bar Council under the Constitution and the consequent appointing power of the President may be exercised only in this case if the person sought to be appointed Chief Justice is not coming from among the incumbent justices of the Supreme Court.

This interpretation is in keeping with the principles of separation of powers and would best serve the independence of our judiciary, free from all political and vested interest.

This is the gist of my letter dated 11 January 2010 to the Chief Justice copy furnished all the associate justices of the Supreme Court. In reply, I received a letter from the Judicial and Bar Council dated 19 January 2010 stating that my constitutional view was duly noted during its en banc meeting of 18 January 2010.

I pray that the Supreme Court asserts its constitutional power to select its own leader upon the retirement of Chief Justice Reynato S. Puno on 17 May 2010 to put to rest all the current debate and constitutional controversy about his replacement that continue to undermine or taint judicial independence.

The Supreme Court En Banc declared unconstitutional in Quinto vs. COMELEC (G. R. No. 189698, 1 December 2009) the second proviso in the third paragraph of Sec. 13 of RA 9369, Sec. 66 of the Omnibus Election Code and Section 4 (a) of COMELEC Resolution No. 8678. Consequently, appointive public officials are no longer ipso facto resigned when they file their certificate of candidacy for an elective post.

With the ruling, justices, judges, election officials, military and police officers, members of the cabinet and all appointed civil servants may continue to exercise the functions of, and hold on to, their appointive office while campaigning to get elected for an elective position.

If they lose, they just continue occupying their appointive posts without even violating Sec. 6, Art. IX (B) of the Constitution that says “No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government of any government-owned or controlled corporations or in any of its subsidiaries”.  Why? It is because they have already been appointed before they lost the elections.

The decision does not seem to prevent the evil that the Constitution, in so many words, seeks to prevent. Next elections, should the Filipino people be wary that the Chief Justice, the Chairman of the COMELEC or the Chief of Staff of the AFP becoming a candidate for President, Vice-President or Senator while serving the office to which they were appointed?

Just asking, in the meantime that this decision is not yet final and executory.

Visit – Oneline Open Ideas and Ideals Creatives Inc.

On 17 November 2009, President Gloria Macapagal-Arroyo signed into law Republic Act No. 9775, also known as the “Anti-Child Pornography Act of 2009”.

The law makes it a criminal act to (a) employ or use a child to perform in child pornography, (b) create or produce any form of child pornography and child pornography materials, (c) offer, sell or promote child pornography or child pornography materials, (d) possess, download, reproduce or purchase them for sale or distribution, (e) publish, post, transmit, distribute, exhibit or broadcast any form of child pornography or child pornography materials, (c) knowingly view, access, obtain or possess even for personal use child pornography materials, or (d) attempt to commit child pornography by luring or grooming a child.

A child is defined as one who is below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

The depiction of a child in child pornography or child pornography materials, regardless of age, or the child’s representation as such in digitally or manually crafted images, undeveloped films, videotapes, movies, drawing, cartoons, paintings, sculpture, audio, real time Internet communications, in written texts or materials, and similar means fall within the ambit of the penalties provided for by the law.

Under pain of imprisonment and/or fine, Internet service providers (ISPs) and Internet content hosts are required to prevent access or transmittal of child pornography materials and to preserve evidence for the purpose of investigation and prosecution by concerned authorities.

And with (a) Internet cafés, (b) private and public educational institutions, (c) public and private offices; and (d) service providers, such as telephone companies, are required to install blocking system or software to prevent transmittal of or access to child pornography materials.

The law also created an Inter-Agency Council Against Child Pornography.

You may also view the full text of the law  by clicking here.

I join our countrymen and the world in mourning the passing of Tita Cory. I learned about her death while I was in Naga City. And when I came back last night after a grueling land trip to Manila, I and my son, Jimbo, did not waste any time in paying our last respect for her at La Salle Greenhills.

Many great things have been said about Tita Cory and she truly deserves all the accolade.

But I love Tita Cory because she made us believe that what it takes to be a great leader and human being is neither education nor experience nor brilliance, just plain and simple sincerity, honesty, integrity, modesty, faith and the fortitude to rise above difficult circumstances – qualities that are rare these days and you can hardly find in any of our present day leaders.

I love Tita Cory because she made sure that we, our children, and hopefully the next generation enjoy the blessings of freedom under a regime of democracy. They say that absolute power corrupts but Tita Cory did not succumb to the temptation, when it was very convenient for her to do so. Her presidency had its own share of weaknesses but no one can deny that she served us well by making sure that every Filipino enjoy the fruits of liberty.

And I love Tita Cory because she distinctly made me proud to be a Filipino. The phenomenal and world-acclaimed People Power of 1986 was bloodless and peaceful simply because Tita Cory was its icon, its inspiration, its moving spirit. And I now reminisce that part of my life circa 1983-1986 with great pleasure which I want my children to cherish and understand well.

I dare say that Ninoy’s life and death was actually meant by God to prepare Tita Cory to be our own Joan of Arc. God must be on our side for giving us Tita Cory.

“I would rather die a meaningful death than to live a meaningless life”, Tita Cory once said.  You did, Tita Cory.

“I hope that history will judge me as favorably as our people still regard me, because, as God is my witness, I honestly did the best I could. No more can be asked of any man”, Tita Cory said in her last SONA.  We know you did, Tita Cory.

With your death, may the hopes of the Filipino people live again by tying that yellow ribbon ’round the old oak tree.

Thank you Tita Cory. Thank you. Farewell.

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Below is a song composed by my best friend, Corazon Guidote, arranged by Roy Del Valle, performed by Lisa Del Valle and photoshow assembled by Mike Reyes.

This is under  CC-BY-NC-ND Philippine License 3.0

On 10 February 2009, the Supreme Court En Banc approved in a Resolution the Rule on Mandatory Legal Aid Service for Practicing Lawyers (Bar Matter 2012).

The rule, which shall take effect on 1 July 2009, shall govern the mandatory requirement for practicing lawyers to render free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. It shall also govern the duty of other members of the legal profession to support the legal aid program of the Integrated Bar of the Philippines.

For details and to view the complete text of Bar Matter 2012, click here.

You are cordially invited to attend and participate in the regional conference of Creative Commons in Asia and the Pacific in the Philippines on 5-6 February 2009 to be hosted by the Arellano University School of Law, Lead Public Institution of Creative Common – Philippines. The principal venue for the event will be at the Coral Ballroom of the Manila Pavillon Hotel situated at the heart of the City of Manila.

The conference aims to showcase the various initiatives of Creative Commons in Asia and the Pacific and for the stakeholders to get together in a forum to define the roadmap of Creative Commons in the region following the 2008 iCommons Summit in Sapporo, Japan.

About Creative Commons

Creative Commons is a nonprofit organization that promotes the creative reuse of intellectual and artistic works – whether owned or in the public domain. Creative Commons licenses provide a flexible range of protections and freedoms that build upon the “all rights reserved” concept of traditional copyright to offer a voluntary “some rights reserved” approach.

Currently, at least 20 country jurisdictions belong to Asia and the Pacific Region, namely: Armenia, Australia, Azerbaijan, Bangladesh, Mainland China, Georgia, Hongkong, India, Israel, Japan, Jordan, Malaysia, New Zealand, Philippines, Singapore, South Korea, Taiwan, Thailand, Turkey and Vietnam.

For information about the 2009 CC Asia Pacific Conference in Manila, visit the conference website by clicking HERE or view the following advisories:

Advisory No. 1 -  Registration and Accommodation Information

Advisory No. 2 – Registration and Accommodation Updates

Advisory No. 3 – Travel Advisory for Foreign Participants

Advisory No. 4 – Program of Activities

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 3 August 2008 Issue

It is safe to assume that Filipinos, as a people, are among the ‘easily pleased’, as compared to the other nationalities of the world. This notwithstanding, they also get hurt very easily, very onion-skinned in a manner of speaking. Little things make Filipinos in general happy but even the slightest incident could also trigger their disappointments.

Thus, a typical Filipino would always have something to complain about. More likely, however, he will keep the matter to himself than openly express, confront or even directly settle his gripes.  A Filipino would rather open his heart to, and seek comfort from, people who are close and dear to him even if they do not have any stake in his concerns. Many times, complaints are settled, or even exacerbate, through the grape vine in the chain of gossips and rumors.

Nevertheless, Filipinos love to communicate and express themselves. The Philippines would not be the text capital of the world if it were otherwise. Filipinos are everywhere in the digital divide with their blogs. Internet social networks like ‘friendster’ in fact are dominated by Filipinos. Filipino passion for music as a form of human expression is simply amazing.

While Filipinos are generally expressive, it is wonder why they would rather endure for as long as they can perhaps up to boiling point, than break the status quo. Make no mistake about it but the average Filipino has the heart for change, and would always hope for it, but he will never stake his person on it, especially if it would put his immediate family in jeopardy. He would rather suffer and protest in silence in this case until the clamor for reform or change has put the bandwagon in locomotion, that is when the battle lines are drawn.

Filipinos would openly express their love for their country but judging from how they live their daily lives as citizens, it is a source of wonder whether in fact they do. What should have been good for the country more often than not has to take a back seat in favor of convenience and parochial personal satisfaction. Choosing between what is good for the country and what is good for his very own or even his family’s interests (a usual line to justify his actions), a typical Filipino would obviously take the latter.   

A typical Filipino would have big dreams, high ambitions and would love to idolize and look up at a role model in pursuing his direction. What is disturbing these days is the impatience of many Filipinos to embrace the dignity of labor and hard work to ensure their economic success. Many are easily lured to professions, false opportunities, and even criminal endeavors that offer a quick fix. No wonder that when times are hard, there are more Filipinos lining up lotto betting stations, the illegal number game of jueting continues to flourish, there are incidence of corruption both in the public and private sector, the news never get tired of reporting people being duped of investment and money scams, and many young people abandon their dreams in favor of the career fad of the times. Nowadays, the only perceived measure of true success is money, and more money. Of course, this country is not alone in today’s highly materialistic environment.

Filipinos are generally reactive than proactive. They do not anticipate, or maybe refuse to aniticpate, difficulties and problems before they arise.  And when things go wrong, finger pointing starts, there would always be somebody to blame, and seldom would someone actually take responsibility for the mess.

In good or bad times, what is striking about Filipinos is their ingrained nature of finding joy in simple things and putting humor even to the most catastrophic situation. A Filipino is usually affective and easily shed tears while at the same time laugh at the situation without being necessarily happy about it.

There is no mutual exclusivity in the psyche of the Filipino. Anything goes so to speak. Whether this is good or bad could be seen where this country is, right now.

“Love is doing something for nothing” – JNS (in response to a question posed by Mars de Castro, 24 July 2008)

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) – 13 July 2008 Issue

Being the only predominantly Catholic country in Asia, the Philippines does not have a “no-fault” and ‘uncontested’ divorce to put a formal end to marital relationships, in the same way that is recognized in many legal regimes in the western world, particularly in countries like the United States and Australia.

To make sure that this state policy is not transgressed by legislation, the country’s fundamental law made explicit that marriage is an inviolable social institution and the foundation of the Filipino family which should be protected by the State.

But it does not mean that in this country spouses cannot terminate their marital bond before the death of either of them. They can certainly contest the validity of their marriage based on the legal grounds provided for by the Family Code through a protracted litigation. And one of the most usual grounds invoked to have a marriage declared a nullity by the court is the so-called ‘psychological incapacity’ of one of the spouses.

The psychological incapacity here as defined by law and jurisprudence relates to the inability (and not mere refusal) of the guilty spouse to assume the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and support brought about by some mental (not physical) conditions that already existed at the time of marriage. It is also required that the mental disorder is serious and incurable.

They say that the legislative intent for including such a ground is to harmonize civil law with canon law of the Catholic faith, which similarly recognize psychological incapacity as a basis to terminate church marriages.

Perhaps, the legal set up is fine. It is logical to provide a legal escape to a spouse who suffers, and continues to suffer, in the hands of a spouse with grave and incurable mental disorder. In the end, no amount of a legal provision can dictate what would make a good, happy and successful family life, except the individual resolve of the members of the family, principally the husband and the wife, even if conditions of psychological incapacity actually exist.

But the same legal set up also provide a convenient legal excuse. Psychologist and law educatee Marah Sharyn M. de Castro asked – if the guilty spouse is judicially declared psychologically incapacitated so as to render the marriage null and void, how come he or she is still allowed by law to re-marry? Obviously, if the degree of mental unfitness required by law is serious and incurable, the same cannot be remedied by having another lovelife. For this, they should be disqualified to remarry as a social deterrent for a continuing breakdown in the family as a social institution, or at least there must be a legal system to re-qualify them into entering another marital life. After all, the judicial determination should be binding before the whole world, in legal parlance.

While it is axiomatic in Philippine law and jurisprudence that termination of marriage cannot be the subject of stipulation and agreement of the parties, this is more apparent than real because all the offending spouse needs to do is not to put up a legal fight. At the end of the day, the guilty spouse still benefits from the proceedings by just being silent, especially if there is contemplation of having another relationship. It is not even impossible to feign his or her psychological incapacity.

If the country wants to sustain its avowed national policy of preserving marriages through a legal mechanism, maybe there is a need to re-engineer the concept of ‘psychological incapacity’, either by law or jurisprudence, to make it work in context.

Although law is the state’s response towards the preservation of the family, one thing is sure – only love can make a marriage work. It may not be necessarily the love for each other anymore. Oftentimes, the love of parents of their children is worth the sacrifice if only to breed the next generation of a good and successful family.