Wednesday, May 31, 2006

Libel Case involving a Filipino Blog --- Dismissed

The Makati Regional Trial Court today dismissed one of the libel cases filed against members of the Parents Enabling Parents (PEP) Coalition for content appearing on the blogsite, According to the Inquirer report , the case was dismissed for failure of the Complainants to show malice on the part of the authors of the blogsite when they posted their opinion on the fate of fellow plan holders on the blog.

I hope they post a copy of the decision online for all its worth so everyone can learn from them. This is the second Philippine blog that has been the subject of a libel case (the first one being the PCIJ blog), and its historical significance cannot be over-emphasized as the blog medium becomes more and more popular in a country where the integrity of journalists is sometimes questionable.

La Mesa Dam Dispute: Is the land award barred by presription?

Here is another reaction to the La Mesa essays that came out in the Inquirer last Sunday.

The Supreme Court decision on the validity and enforceability of the land award to the ex-MWSS employees lapsed into finality in 1975. The rule on final judgments, however, is "(a) final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations." (Section 6 Rule 39 of the Rules of Civil Procedure)

This means that from 1975 to 1980, the decision may be enforced by a mere motion in the same court and same docket number. But after 1980, it could only be enforced by a separate action. This means they have to file a new case. But here is the key point: has the enforcement of the decision by a separate action prescribed?

Prescription is the rule under the Civil Code that bars the filing of a legal action to enforce a right after the time set by law for filing it has lapsed. This means that once the deadline for filing an action passes, it may no longer be filed. In the case of final judgments, the Civil Code provides that the deadline is 10 years. Art. 1144 of the Civil Code states,

"The following actions must be brought within ten years from the time the right of action accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment. "

When was the decision rendered? 1975. When did the action prescribe? 1985. What year is it now? 2006.

Why are people fighting about this now? I don't know.

Tuesday, May 30, 2006

It's the profiteers vs. all of us!

I got a phone call today from a friend reacting to the La Mesa essays published in the Inquirer last Sunday. He said we got it all wrong. The issue is not about the awardees against the environmentalists, but the profiteers against the rest of us. He said that most of the awardees don't even know that they won a land award, and some of them have died; their heirs unaware of the parcel of land left to them. The curious matter, however, is that the Deed of Sale was executed in favor of only one person who is holding Special Powers of Attorney from awardees, both living and dead. Furthermore, this person is demanding that the MWSS set aside 10% of the payment as his collection fee.

It is a basic principle of the law on agency under the Civil Code, that in general, a special power of attorney (SPA) is immediately extinguished when the principal dies. Thus, if indeed, some of the land awardees who delivered SPAs to the agent have died, then the agent has no more authority to transact for them. Only the heirs of the
land awardees have the legal standing to pursue the award. Yet, the MWSS appears to be inclined to ignore this infirmity and pursue the sale in favor of the sole agent.

Thus, the question is, is this really a fight between legitimate land awardees and environmentalists -- or between well-entrenched appetites against the rest of us?

Monday, May 29, 2006

When tribes clash

Yesterday, the Inquirer published my piece When tribes clash in the Talk of the Town page. It appeared together with Atty Punzi's lecture on the issues in the La Mesa Dam controversy, while Manuel L. Quezon III, who was guest editing the section, showed the social and historical dimensions of the controvery.

Some links to accompany the article:

1. A copy of the NIPAS law can be found here.

2. The Supreme Court decision on the land awardees can be found here.

3. The status of the ECC application on the housing project can be found here.

My wife's cousin, Agerico de Villa, who is a UP professor, reacted and said that back in 1997, the DENR has concluded that allowing residents in the area would be a security threat to Metro Manila residents. Terrorists could pose as residents and release dangerous substances to the reservoir and poison the water supply.

Tuesday, May 23, 2006

Can we finish a trial in one year?

The Inquirer reports that the Subic rape trial case has been scheduled for hearings three times a week every afternoon before the Regional Trial Court of Makati. Click here. The report adds that the hearings will be made daily if the trial does not progress to beat the one-year deadline under the Visiting Forces Agreement.

In my ten-year career as a lawyer, I have yet to encounter a trial completed in one year. I have seen all sorts of disappearing acts done by judges, counsels, and litigants who are the principal causes of delay in the administration of justice in this country. The classic excuse is the loose bowel movement. I've heard it so many times, that it makes me think that lawyers have the most sensitive stomachs. They are the only ones who often experience this, and they even have medical certificates to back them up.

On a different note, I once encountered a lawyer whose case was dismissed for his absence in a pre-trial hearing; his excuse -- he had an unexplained pain on his right foot. To support his claim, he sent an x-ray to the court. The trouble was he sent an x-ray of his hand instead. Yet, in spite of the obvious lie, the court relented and reinstated his case.

And so now, we have a case that has a deadline of one year, which cannot be extended even if we appealed to the President of the United States. And it would seem, even if the court burned down, the judge, lawyers, and litigants are determined to finish the case before the deadline.

Finally we are learning that speeding up our court processes is all a matter of political will.

Friday, May 19, 2006

Links on the La Mesa Dam Controversy

To help us understand the brewing controversy on the housing project to be constructed on the La Mesa dam water reservoir, I have gathered some links on the subject.

The latest report is the Manila Times article that says over 100 houses will sprout on the La Mesa dam watershed. Click here.

The Inquirer's summarizes the facts and its position on the matter in this editorial.

The Supreme Court decision upholding the rights of the awardees may be found here.

Jojo Robles from the Manila Standard Today argues that this provides a situation where what is legal is not right.

Neal Cruz from the Inquirer points to the UP National Hydraulic Center report that came to the conclusion that no matter what abatement and safety procedures are adopted in the construction of the housing project, the danger of water contamination remains.

Update: Manila Times report on the completed MWSS executive houses in the La Mesa dam reservoir.

Thursday, May 18, 2006

Finally, Wifi Access in the Office!

After an initial disappointing experience with SkyDSL a year ago, we decided to sign up with them again and go back online 24/7 yesterday. I've set up the wi-fi router today, and so far, it's been great. For a year, we had to settle with ISP Bonanza prepaid cards, after cancelling the SkyDSL account a year ago, and engaging their lawyers in a test of wills. We refused to pay their final billing of PHP 5,000, because for the single month that we were with them, we were online for less than a week. Their tech guys couldn't figure out the problem, until we decided to cancel the account. But their finance guys had the nerve to bill us for the full month. Thus, we exchanged nasty demand letters with their lawyers, copy furnished the National Telecommunications Commission, until they relented, and decided to waive the charges. So did we win? Probably not, because today, we're back with them again.

For now, I'm looking at the possibilites: streaming internet radio, playing the old tv shows widget on the Mac OS X, video conferencing with clients, and most importantly, live-blogging. Geez, with all the distractions, work has become the distraction.

Wednesday, May 10, 2006

Darker Clouds over the Middle East

A few days back, I thought Iran blinked. In the wake of US warnings on its nuclear development program, Iranian President Mahmoud Ahmadinejad sent a letter to George W. Bush allegedly proposing a way out of the crisis. But instead of a way out, the letter appears to be a re-statement of the history of 20th Century according to the victims of Zionism, and some loaded questions: “Why is it that any technological and scientific achievement reached in the Middle East regions is translated into and portrayed as a threat to the Zionist regime? Is not any scientific R&D one of the basic rights of nations?

Of course, we don’t expect George W. Bush to respond to the letter, and engage the Iranian President on a debate. Right now, we know the US is preparing for the worse. In a short time, we might be looking at a US-led multi-country invasion of Iran under the pre-text of the war against weapons of mass destruction, the same blueprint for the Iraqi “shock and awe” show. The question is, how would Iran’s allies respond? Inevitably, the hawks among Iran’ s sympathizers would prevail, and soon we might be looking at World War III. The doves among us should now jump into this controversy even before the military thinkers could plot. For otherwise, we might be looking at the end of the modern world.

Friday, May 05, 2006

Notes on the Proc. No. 1017 Decision

My plan was to do a detailed break-down of the Supreme Court's decision on Proc. No. 1017, but my urge at the moment is to hammer away on notables. Perhaps, a detailed break-down will find its place somewhere else. Meanwhile, let me jot down the following on this decision.

1. Presidential immunity anyone?

The President was sued; it's up there in the title Randolph David vs. President Gloria Arroyo. When I learned back in February that this case was filed, I knew presidential immunity was the first line of defense. It is a basic principle of law that the President may not be sued while she is in office. But it seems the Government did not even raise the matter as an issue, and instead harped on the legal standing of the petitioners to sue. I simply do not understand why the government keeps on raising the "legal standing" issue over and over again even if it is elementary that taxpayers and citizens could sue their government for violation of the constitution. Presidential immmunity would have given the government one additional winning argument to parade to the press.

2. So what does Martial Law mean?

When Proc. No. 1017 was announced, my instinct was to check out what was the legal definition of "martial law", and found it in Fr. Bernas's textbook. According to him, martial law under the 1987 Constitution is the type "which has application when the military arm does not supercede civil authority but is called upon to aid in the execution of its civil functions." (See Joaquin Bernas, A Commentary of the Constitution of the Republic of the Philippines p. 215, 1988 edition). My conclusion was that the wording of Proc. 1017 precisely contemplates that situation where the President is calling upon the military to maintain the peace and order in the entire country. I asked, doesn't this mean civilan authority is no longer functioning? If so, then Proc. No. 1017 is martial law.

But the recent Supreme Court decision said, it is not martial law, but only the exercuse of the "calling-out" power. Said the Supreme Court,

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power.

The declaration of Martial Law is a “warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.”

In his “Statement before the Senate Committee on Justice” on March 13, 2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

Can somebody please do me a comparison and contrast essay on "martial Law" and "calling-out power"? This decision has only obscured the concept of martial law more than ever. When the Supreme Court says,

The declaration of Martial Law is a “warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.”
couldn't that apply too in the case when she declares that she is using her "calling-out" power? They say the "calling-out" power is a mere police action. But isn't martial law a police action too? Maybe I need to go back to law school.

3. The issue is REVIEW. REVIEW. REVIEW.

I could not understand why none of the petitioners challenged the factual basis for the Proc. No. 1017, and I think that was a mistake by the lawyers. We all knew that Proc. No. 1017 was termed a "Declaration of the State of Emergency" instead of the "Declaration of Martial Law" because the President and her legal team wanted to avoid a congressional review of the factual basis for the declaration. That is why it was logical for the petitioners to go to the Supreme Court primarily to challenge the factual basis of the declaration and secondarily (or even lastly) to challenge the nomeclature of the proclamation. But if only the petitioners pressed down on the issue of the factual basis, the Supreme Court would have had the chance to review the basis. It does not matter whether we get the review from Congress or from the Supreme Court so long as the declaration is reviewed by a constitutional body. The system of checks and balances on the executive would have still worked.

But as the Supreme Court ruled, the petitioners did not even challenge the factual basis for the declaration. That's why the Supreme Court had no choice but to accept the government press release behind Proc. No. 1017 one hundred percent (100%) no ifs, no buts. Oops. Lawyers missed the point. Sec. Raul Gonzalez gets one big pogi point for him and his boss.

This means many years from now when all of these things have subsided, and we look back at how history has turned out, there can be no argument that Querol's sleeper of a film clip that the government paraded after Proc. No. 1017 was declared is not just propaganda, but a legally established fact with the Supreme Court's imprimatur. What are we going to tell our children now?

Fr. Bernas claims we won this one 95% to 5%. I beg to disagree with my teacher. No sir, we lost 95% of it instead. The argument that at least the Supreme Court ruled that there can be no takeover of media companies during a state of emergency, doesn't really prevent the government from effecting the same during a state of emergency. For so long as probable cause for rebellion could be established (which coud be done with or without a state of emergency) the ordinary police power of the President gives her the power to take over an offending media company.