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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.

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.

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.

On 3 June 2008, the Supreme Court promulgated a resolution in Bar Matter 1922 requiring all lawyers to indicate the number and date of issue of their MCLE certificate of compliance or exemption in pleadings (as well as motions) filed in courts and quasi-judicial bodies. MCLE stands for the Mandatory Continuing Legal Education program of the Supreme Court for the members of the Philippine legal profession.

Failure to disclose may result in the dismissal of the case and the expunction of the pleadings from the records.

The full text of the resolution, which becomes effective sixty days following its publication (or on 24 August 2008), may be viewed HERE.

This prayer was composed and is being offered for the bar candidates of Project Phoenix of the Arellano University School of Law. 

Lord, thank you for the opportunity of gathering us together in Project Phoenix.
We know that this is not a matter of coincidence.
You chose this moment for a particular reason.
And that is the fact that we are destined to become a full-pledged member of the Bar by this time next year.

We thank you for uplifting our spirit.
We thank you for giving us the right attitude to face every adversity as we prepare for the bar examinations.
We thank you for our good state of physical well being.
We thank you for the sound knowledge of law and jurisprudence.
We thank you for the enlightenment and the gift of expression.
And most of all we thank you for all the blessings knowing fully well that there are more less-privileged in our midst.

Rest assured our dearest Lord that whatever human triumph we reap, we will always offer, dedicate and uplift it in Your Name and for Your Greater Glory. Amen.

LINK: ‘Note Verbale’, Manila Times (Sunday-Career Times) – 17 February 2008 Issue

In October 1918, former Manila Mayor Justo Lukban, with all the best intentions to rid the city of vices, ordered the segregation of some one hundred seventy women of ill repute and made them board two steamers, without their knowledge and consent, so they could be relocated to Davao.

In a habeas corpus petition, the Supreme Court did not “permit a government of the men instead of a government of laws” to be set up in this country. And this was the gist of the landmark case of Villavicencio vs. Lukban decided almost ninety years ago.

In the present state of political turmoil brought about by accusations of corruption involving high officials in government both the accused and their accusers cry for the rule of law, not trial by publicity and subsequently conviction by public opinion.

As citizens of this Republic, shenanigans in government are also entitled to the mantle of protection of the Bill of Rights. And this is what the rule of law is all about because like any malefactor, they are also presumed innocent until proven guilty in a court of law.

In refusing to testify again before the Senate Blue Ribbon Committee on the controversial ZTE-NBN deal, Secretary Romulo Neri publicly invokes the rule of law especially after the Supreme Court granted him a reprieve from arrest. For his part, former Commission on Elections Chairman Benjamin Abalos challenged his accusers to hail him before the courts and prove their accusations. Critics of whistle-blowers and star witnesses, Rodolfo Lozada Jr. and Jose de Venecia III contend that no evidence has been presented thus far sufficient to convict those involved in the anomalous transaction.  Every one knows that a criminal conviction requires proof beyond reasonable doubt. Again, this is what the rule of law is all about.

Obviously, these legal standards have found their way in the country’s Bill of Rights and legal system because they are intended to safeguard individual liberties, particularly of ordinary citizens, from the enormous powers of the State. In the same token, public officials and employees proclaimed as servants of the people are entitled to the same mantle of protection.

The dilemma is ordinary folks are not similarly situated as public functionaries although they enjoy equal protection in the eyes of the law.

The rights of ordinary citizens to the secrecy of bank deposits or against any intrusion on privacy like wire-tapping or to invoke privilege communications in certain cases or not to be bound by certain evidences that are part of the ‘poisonous tree’, so to speak, are part of the processes to guarantee individual freedom, which the government could easily abuse.

But it is in a sense an irony of the rule of law if the same legal standards, system and processes are equally applied to public servants because the chance of getting them caught and convicted of their misdeeds becomes a mere fairy tale depending on the scale of the conspiracy and the level of official position they occupy. Sheer cover up, the ‘old-boys’ club’ attitude, and plain blind loyalties and obedience to powerful and influential men in government would make it almost impossible to convict government felons of grand corruption beyond reasonable doubt. And so they remain scot-free and continue to perpetuate themselves in power.

Thus, the rule of law intended to guarantee the rights of Juan de la Cruz could be the same rule of law that gives unscrupulous public officials the cloak of legal protection, perhaps just a strand short of immunity from legal prosecution.

It is easy to understand why a high position in government is a most coveted job. It is the easiest route to power, fame and wealth without the usual investment, except whom you know coupled with the willingness to cooperate.

In the Villavicencio case, the Supreme Court said that “Law defines power”. It was certainly decreed in 1919 in the context that this country is a government of laws and not of men. But nowadays the same statement could assume another import, in the negative sense.

Is there any other viable alternative to the bar of public opinion in a situation called the misrule of law?

A person in contemplation of death may execute his own will, without need of lawyer’s assistance and the other formalities of a testament provided it is entirely written, dated and signed by the hand of the testator himself [Art. 810]. Under the Civil Code of the Philippines (R. A. 386 – approved: 18 June 1949), this is known as ‘holographic will’. It is subject to no other form, may be made in or out of the Philippines, and need not be witnessed.

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 27 January 2008 Issue

The congressional proceedings on the cheaper medicine bill are in the final stages. The deliberations on the measure have been controversial, if not emotional, among the stakeholders since last year. The primary objective of the proposed law is to address the popular clamor for a more affordable health care by bringing down the exorbitant costs or the overpricing of medicines in the market.

Understandably, every time government is confronted with a pressing public demand the usual response is to come up with a law to respond or as a political reaction to the issue. Fortunately for the government, the cacophony would subside momentarily. But unfortunately to the public, the predicament almost always remains unresolved. Ironically, the law in many situations consequently aggravates the issue or becomes the source of a much bigger concern.

One of the promises of the proponents of the Generics Act of 1988 was to accomplish almost the same purpose as the cheaper medicine bill. Two decades after this law, the Filipino people are still suffering from same much higher prices of medicines.

Ten years ago, Congress passed the Downstream Oil Deregulation Act of 1998. The promise is to ensure a truly competitive market under a regime of fair prices, adequate and continuous supply of environmentally-clean and high-quality petroleum products.  Price control of fuel products, which have been blamed by some quarters for higher prices, became deregulated. But still, fuel prices are unreasonably high and worse, oil companies are accused of predatory pricing under a monopolistic arrangements disguising as deregulation.

Overseas Filipino worker Flor R. Contemplacion was executed in Singapore for the murder of another Filipino domestic helper. In response to the weeks of consistent public protests over the issue and the plight of Filipino workers abroad, former President Fidel V. Ramos pushed for the passage of the Migrant Workers and Overseas Filipinos Act of 1995. The promise was to reform the overseas employment industry, provide better protection to the overseas workers, and pursue a state policy of deregulation. Twelve years after, another law was passed setting aside the deregulation policy and still the victims of illegal recruitment and exploitation continue to grow in number.

In 1989, the Magna Carta for Countryside and Barangay Business Enterprises (Kalakalan 20) was passed by Congress. In 2002, an almost similar law was also enacted called the Barangay Micro Business Enterprises Act. The promise of both statutes is to promote entrepreneurship outside of urban centers by providing a package of tax and credit incentives, simplifying business regulations, and hopefully, to ease poverty and unemployment. Judging from the almost a million Filipinos seeking employment abroad in last couple of years, it is doubtful whether these programs even got off the ground.

Time and time again, government professes that foreign investments are needed to spur economic growth. But even all the packages of government incentives accorded by various laws to foreign investors did not seem to really attract them. Otherwise, this country would not be talking now about poor economic conditions and President Gloria Macapagal-Arroyo would not be breaking her back campaigning to foreign businessmen that the Philippines is an ideal haven for their investments.

Twenty years ago, landless farmers and farm workers were promised a more equitable distribution and ownership of lands through the Comprehensive Agrarian Reform Law of 1988. With the law about to expire in June 30 and Congress talking about its extension, farmers remain poor and locked in a tug-of-war with landowners.

Labor’s demand for higher wages and the turtle pace legislative reaction brought about the Wage Rationalization Act of 1989. But the nagging issue on minimum wage fixing and implementation before the enactment of said law remains.

Other countries should envy the Philippines for having one of the best Government Procurement Reform Act, Code of Conduct and Ethical Standards for Public Officials and Employees, and Anti-Graft and Corrupt Practices Act in the world. But corruption in government is a never-ending story.

And the list of these “false hope statutes” could be never ending.

As in most regimes, government’s stance to public issues is always reactive. Good, if the reaction provides the appropriate and lasting solution. What is worse is if the reaction simply offers a false hope.  

Sometimes it is a source of wonder why government still exists.

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) – 30 September 2007 Issue

“There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind”, wrote American novelist and playwright, Joseph Heller, in his historical fiction book entitled “Catch-22” published in 1961. 

The book relates the story of a US bomber crew characterized by Captain Joseph Yossarian stationed in the Mediterranean island of Pianosa during the late stages of World War II.

BBC News reported that the book, which already sold more than ten million copies, is one of the significant novels of the 20th century. 

In his book, Heller described that Yossarian sought to be excused from flying suicidal mission. To do so, he must submit an official diagnosis from the flight surgeon that he is unfit due to insanity. But according to army regulations, any sane person would naturally refuse to fly dangerous combat missions. Therefore, by seeking to be excused on grounds of insanity meant that the bomber crew is in fact sane and is fit to fly. But those who willingly accept the mission implicitly demonstrate unfitness because of insanity and should be excused from flying without the need for a medical diagnosis.

In another setting, Yossarian offered marriage to a woman who felt distraught because no man would ever marry a woman like her who is no longer a virgin.  The woman rejected the offer claiming he is crazy for wanting to marry a non-virgin.
 
Both scenes satirically show that sanity is a prerequisite to recognize one’s own insanity.

Catch-22 depicts a paradox in a law, regulation or practice in which one is a victim regardless of the option taken because of a circular dilemma or a self-defeating logic. It creates a situation in which an action has consequences which make it impossible to pursue that action because it puts the person in a double bind or in a ‘chicken and egg situation’.

There’s always a ‘catch’ in day-to-day life. And that’s a practical reality that is difficult to escape from. A person cannot get a job without work experience but cannot get work experience without a job. An author cannot publish his work without an agent but cannot get an agent until his work is published. Schools portray a vital role in students’ reformation and learning and yet would shun students away when they obtain failing grades or commit some delinquencies.

But when Catch-22 widely afflicts public governance, society stinks.

It is axiomatic that corruption is one of the major causes of poverty, yet poverty is also an important element to keep corruption alive. As Manila Times senior reporter Annie Ruth C. Sabangan said in her January 6, 2004 special report: “Corruption became even more ingrained. Every administration’s effort to cure the disease appeared to be just a part of a vicious circle. Worse, the public perception lingers that the ones offering solutions are in fact part of the corruption problem.”

What is paradoxical, tragic or perhaps satirical in the Philippine setting is to see the same chameleons simply switching roles and standing either as accusers or the accused, the oppressor or the victim, depending on the prevailing political scene or social climate.

In one interview, Heller summed up his intentions in writing the novel in this wise: “everyone in my book accuses everyone else of being crazy. Frankly, I think the whole society is nuts – and the question is: What does a sane man do in an insane society?”

In the final chapters of Heller’s book, he said: “anything can be done to you that you can not prevent,” and so the only solution is to entirely break out of the system. Thus, Heller’s hero deserted and fled to Sweden.

No wonder millions of Filipino have opted to leave the country out of dismay.  Unfortunately, the Filipino who would lead the country out of Catch-22 is yet to be heard.

PUBLISHED: ‘Note Verbale’, Manila Times (Sunday-Career Times) – 2 September 2007 Issue

In the current discussions of the Supreme Court on the writ of amparo (a court order to protect the constitutional rights of a person) to compel state agents to look for missing persons in cases of forced disappearances, there is a move to complement this with the legal process so-called writ of habeas data.

In this modern world, personal data are being collected and obtained on persons with impunity from birth to death.  Nowadays, a person is compelled or obligated to divulge information about himself or herself in the course of his or her personal dealings and day-to-day transactions. Application for government records, services, social security, clearances, permits and licenses as well as availing of third party private services like bank deposits, investments, credit cards, cable and utilities, school admission, employment, medical care, professional services, and similar other transactions too many to mention here would require individuals to reveal their personal information and circumstances. And people are not wary of the disclosure because they are either too busy or lazy to discern their repercussions or perhaps there is a prevailing trust on the integrity of the system of data collection.

But what if these data base systems are utilized by unscrupulous persons or entities to perpetuate some malicious or criminal ends? Who would, and what would, protect ordinary individuals from these types of attacks and exploitation of their privacies?

A legal and judicial process referred to as the ‘writ of habeas data’ exists in some countries precisely to address the concern.  Literally, this Latin term habeas data means “you should have the data”.

Although its form varies from country to country, habeas data is generally a legal relief made available to citizens to protect their individual image, privacy, honor, reputation, information self-determination and freedom of information in a judicial proceeding.

They say that this legal relief is of European origin. For instance, Germany, as early as 1977, has the Persönlichkeitsrecht, a law that covers collection, processing and use of personal data collected by public federal and state authorities, as long as there is no state-regulation, and of non-public offices, as long as they process and use data for commercial or professional aims.  In 1981, there was also the 108th Council of Europe Convention on Data Protection that sought to secure individual privacy regarding the automated processing of personal information.

In 1988, Brazil was the first country in the world to implement habeas data as part of its Constitution. Thereafter, other countries followed suit and adopted it also in their respective constitutions: Colombia in 1991, Paraguay in 1992, Peru in 1993, Argentina in 1994 and Ecuador in 1996. 

Spain, a country that constitutionally recognizes the right to privacy, secrecy of communications and data protection, enacted in 1992 the LORTAD or the “Spanish Data Protection Act” that establishes the rights of the citizens to know the personal data contained in computer files with the right to correct or delete false information. The law requires that personal information may only be disclosed to a third party with the consent of the individual.

Many nations in the world that put premium to privacy rights particularly on the disclosure of personal information have caused the creation of a public office referred to as ‘privacy commissioner or ombudsman”.

As early as 2000, when this author wrote his thesis for the National Defense College of the Philippines (NDCP) on the national identification system, he realized the importance of institutionalizing habeas data in the country’s legal system and the creation of a privacy office, and made them as part of his recommendation.

So the next time someone is kidnapped for ransom or becomes a target of nuisance marketing or a victim of harassment, vexation or even a simple annoyance, the immoral and unethical exploitation and use of personal database systems could easily be identified as the root cause. Meanwhile, it is still perfectly legal to do so.

If the Filipino cannot find immediate refuge from Congress to protect their constitutional right to privacy, perhaps the Supreme Court through its rule-making power could provide the appropriate legal and judicial relief.