Merry Christmas and Happy New Year to All!

From La Vida Lawyer and family

Why do you call yourselves "Honorable"?

“I would like to say to you all [that] I am completely appalled by your collective gall. You're totally bereft of principle that's why you're without shame,”

-- Renato Constatino, Jr.

I'm back!

It's been three months. My last post was on the birthday of Mother Mary, September 8, and today is the Feast of the Immacualte Conception -- December 8. I needed the hiatus to focus on work in the office as it gets pretty tough at this time of the year every year.

I will finish the Juan Luna Trial by next week, starting with a reconstruction of the proceedings in the French court and the publication of the closing oral argument of Juan Luna's counsel, Mr. Danet.

I am outraged by the proceedings in the House of Representatives. I'll try to blog about those ugly events unfolding in our history as a side blog to the Juan Luna Trial.

Merry Christmas! God is good!

My Last Conversation with NVM

I skipped law class that day, September 8, 1992. I was already in my second year in law, and I couldn't quite fit in a crop of rabid and ambitious group of future lawyers. A friend who was teaching in the Ateneo College told me NVM came back to teach creative writing that year, and mentioned that he'd be happy to see his former students and find out where they were.

I was in NVM's class in creative writing first semester of 1989. The year after, he returned to Berkeley, California. He wrote that he was guest-editing the literary section of Katipunan, a Filipino newsmagazine in his place, and asked if he could publish one of my stories, "Ayos!". Well, of course, certainly I wrote back. Then, he sent me the published copy and the 50 US$, the highest amount anybody ever paid me for non-legal writing. I lost track of him after, until a classmate from that class in 1989 told me NVM was around, and was asking for his former students.

I arrived early for his class, and told his students it was his birthday. The students didn't know, and were quite surprised. "Idiots!" I told myself. And then NVM arrived. He was in his usual sandals and cane get up. White hair, dark polo and ever the ubiquitous smile -- the master story-teller and teacher looked happy to report for work on his 77th birthday. We greeted him, I gave him a handshake. He recognized me, and asked what I was doing. I told him I was in law school. I asked him how he was, he said he was great, the brain surgery worked fine. And then I sat in his class just like the old days.

After class, I walked with him from Berchman's Hall to the Admin Building where we waited for his ride. I got my copy of his then latest work, "Kalutang: A Filipino in the World". I told him I was amused at his story about seeing the Philippine flag in a European embassy with the red up, only to find out it was the Filipino employees' signal that the laundrywoman would come that day. He chuckled. He then got my copy
and signed it, "Para sa isang kadiwa". My heart got tickled pink.

I read somewhere he attended two years of law school, and asked him about it. He appeared to regret that chapter of his life, and mentioned that his professor sold them copies of the Philippine Reports so his teacher could have money to fend for his querida.

When his ride came, he asked me, 'Marvin, why don't you come over for dinner? I still have some food from last night's party." I graciously accepted the offer.

When we got to their home in UP Village, we were met by his wife, Narita. He told Narita, I was from Mindoro and I attended his creative writing class a few years back in the Ateneo.

We had dinner of hot kaldereta and boiled rice. I met her daughter who was also teaching at the UP. After dinner, we went back to their living room. The couple sat beside each other as NVM opened a bottle of wine cooler, and poured us a glassful each.

I told them I saw NVM's early poems in Jimmy Abad's "Man of Earth" anthology of Filipino poetry. And we recalled the lines of NVM's poem about the circus juggler, whose daggers pricked the heart of his Antonietta. We had a hearty laugh after. I was looking at Narita and I felt like she really enjoyed that poem of his. I asked NVM why he stopped writing poetry, he said he didn't because his stories were poems. Narita sneered at him, as if saying, "Ang yabang mo naman."

Soon, Robbie Laurel arrived. I knew Robbie from college, but he was two years ahead of me. Robbie, whose pen name was "R. Kwan Laurel", was not writing anymore at that time. We asked each other how it has been. Robbie said he was working for a bank.

NVM said he had some money to buy a car and asked Robbie what model could he recommend. Robbie said a KIA Pride would be alright for them since they would just be going around he city. As Robbie explained his case for a KIA, NVM was listening intently, caressing his chin, just like when a student was reading fiction in class. Then, NVM stood and yelled at his granddaughters, "Did you hear that girls? It's ok to get a KIA."

We talked a few minutes more, and then it was time to say goodbye. I shook their hands, NVM and Narita, a happy couple aging with grace. I greeted him again and thanked him for the dinner and the autograph. I hitched a ride with Robbie on my way home.

Thereafter, NVM would finally be awarded the National Artist Award for his writing. I've been collecting his books, some of which have been re-issued for new readers. And everytime I read him, I always remember what he said. He never stopped writing poetry, for his stories are poems.

Law, Morality, Religous Freedom and Hooking up with another Woman's Husband (Part 3)

When Mr. X, a friend of mine, got married, he and his wife prepared their own litrugy for the wedding mass. They picked the Bible passages to be read during the mass, and prepared moving and poetic wedding vows. Their officiating priest was so impressed that he couldn't help but commend the couple during the homily for their preparation.

This prompted Mr. Y, another friend of ours, who got married several months after Mr. and Mrs. X, to copy the missal prepared by Mr. and Mrs. X, and used it on his own wedding, changing only the names of the participants and retaining everything else. This was not really a problem with Mr. X, except that he jokingly asked Mr. Y at an intermission during the wedding, whether Mr. Y knew what he was doing.

I bring up this story, because this is how exactly the freedom of religion got to our Constitution. We copied it word for word from the American Constitution. And sometimes, we should ask ourselves if we know what we are doing.

Reading the Escritor decision, and seeing the pains that Justice Puno took in arriving at the decision, I asked myself many times why did he had to be so elaborate. The decision traced the history religion from the dawn of time, through the days of the Hebrews, the modern American Constitution, and the Philippine Constitution.

Ending the chapter on religion in the old world, Justice Puno concludes,

"In sum, this history shows two salient features: First, with minor exceptions, the history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democracy and in human history."

Thereafter, Justice Puno traces the factors contributing to the adoption of the American Religion Clauses.

He notes the contribution of Roger Williams:

In Williams’ pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace, he articulated the philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church and state did not constitute two but only one principle. Religious persecution is wrong because it “confounds the Civil and Religious” and because “States . . . are proved essentially Civil. The “power of true discerning the true fear of God” is not one of the powers that the people have transferred to Civil Authority. Williams’ Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the separation of church and state.

Like Williams, who founded Rhode Island, William Penn, who founded Pennsylvania, was mentioned by Justice Puno in discussing the factors that led to the adoption of the American Religion Clauses.

Justice Puno writes,

William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because “imposition, restraint and persecution for conscience sake, highly invade the Divine prerogative.” Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for the “Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in America”, a monumental document in the history of civil liberty which provided among others, for liberty of conscience. The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and freedom. The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful examples of Rhode Island and Pennsylvania.

Thereafter, Justice Puno traces the jurisprudence in the United States on the religion clauses, and how it later was adopted in the Philippines.

To go back to the question, why did Justice Puno have to be so elaborate?

This brings me back to the story of the guy who copied the missal of a friend's wedding in his own wedding. It seems that Justice Puno is trying to show us that we are not just copying these things from the Americans, because it is a fashionable thing to do. We have adopted the religion clauses in the American Constitution, because we know and understand their history and the human experience that shaped these principles.
The Escritor decision connects the Philippines to the long line of history and thought on religious freedom.

So the Americans, cannot tease and ask us whether we know what we are doing.

(To be continued)

On turning 36

This is an intermission on the Escritor series. I hate the verbosity of justices. The readings are killing me. Nonetheless, I break that series to post for the record that this week I'm officially 36 years old.

No big resolutions for me, except perhaps to follow the advice of 94 year old Raffy L., a client of mine, on how to live long. "Don't eat too much," he said as he munched a spoonfull of sisig over bottles of coke. If that is not expert advice, I don't what is.

Rizal died before the age of 36. Bonifacio died at the age of 34. So if both were to continue their lives today, I'd be older than them. I'd tell Rizal to work on his English and Bonifacio to brush up on Sun Tzu. This way Rizal can drive his translators out of business, and Bonifacio can find out how to win a revolution.

I used to regret that I did not become a rock star. But I'm thinking, on or about this age, rock stars fade away and become drug junkies. So if I became a rock star, I'd probably be hooked on cocaine by this time instead of coffee. I don't know which drug is better. But at least coffee is not illegal. Now, I can stop regretting. Although, I don't regret that I used to regret not becoming a rock star. I still hope that one of these days, I'd learn to play the blues scales.

A friend was president of a large chain of computer schools at this age, and another was head of a multi-billion government corporation and eventually became Secretary of Agriculture. Advising them on the legal side of things, I agonized when both will eventually get driven out of office shortly thereafter. But both were able to bounce back from their predicaments and head bigger organizations. They inspire me to carry on.

But every now and then, I think of building a farm, planting coconuts, raising goats, and working on food security. I sure could use a lot of those free time in between planting, tending the farm, and harvesting. My books are all works in progress, and this blog is perpetually behind. Certainly, slow clocks and wifi on the beach could make a lot of difference.

When I was 18, I thought that people aged 36 have less possibilities. They're closer to death, if not already dead, they have less talent and less employment options. But today at 36, I'm guessing maybe possibilities are just functions of imagination. Perhaps, age should be measured by one's capacity to imagine. My theory is if I could imagine my life many years hence, I am perpetually young. Ha ha! Have I discovered the fountain of youth?

Negative. Someday my body will break down and my imagination will turn to senile dementia. Imagination gives me hope. But to keep things intact at 36 and many years hence, no better way for me to live but on 94 year old Raffy's sage advice,

"Don't eat too much."

Escritor on Newsbreak

Manuel L. Quezon III links to a Newsbreak article featuring Escritor, whose case (Estrada vs. Esrcitor) we're tackling in the series Law, Morality, Religious Freedom, and Hooking up with another Woman's Husband.

Law, Morality, Religous Freedom and Hooking up with another Woman's Husband (Part Two)

We continue from where we stopped the last time.

The tricky part is how the Supreme Court framed the issue, and I will show later why this is relevant to the outcome of the case. The Supreme Court stated that the issue of this case is as follows:

"Whether or not respondent should be found guilty of the administrative charge of “gross and immoral conduct.” To resolve this issue, it is necessary to determine the sub-issue of whether or not respondent’s right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable."

The Supreme Court identified this issue based on the applicable laws. Escritor was charged with committing “gross and immoral conduct” under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz:

Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx."

Escritor, however, claims that this rule is not applicable to her, because based on the religious beliefs and practices and moral standards of her religion, the Jehovah’s Witnesses, her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administratively liable.

Here the Supreme Court jumps to the conclusion that "While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights."

The premise of this conclusion is that the "disgraceful and immoral conduct" of having a conjugal arrangement with another woman's husband is a function of an "establishment religion". Thus, imposing a penalty for this conduct on someone who is not a member of the "establishment religion" and whose religion in fact accepts and blesses this arrangment may give rise to a constitutional issue on religious freedom. In other words, the Supreme Court is saying that conjugal relations is a religious matter, and imposing restrictions on conjugal relations may conflict with the religious beliefs of the citizens of this country.

But here is the rub: isn't conjugal relations also a secular or non-religious concern. As a matter of fact, it is subject to restrictions provided by law. This is precisely why we have laws prohibiting adultery, concubinage, and bigamy. The relationship between Escrito and her lover, at the very least, is one of concubinage, since her lover is admittedly married to another woman. Thus, the Supreme Court could have avoided he constitutional conflict after all.

The "R" word did this case in for the Complainant. But his counsel could have easily argued that religion is not in issue here. What was in issue here was whether having relations with someone else's husband constituted "disgraceful and immoral conduct". Had the issue of this case been framed this way, the Supreme Court would have to proceed first in resolving the issue of what constituted disgraceful and immoral conduct, and then finding the answer to the question on whether in applying contemporary Philippine standards of morality, hooking up with another woman's husband is immoral or disgraceful. No religion word anywhere.

This brings us to the issue on why this provision on "disgraceful and immoral conduct" actually exists on our statutes. By this provision, the law actually incorporates the entire sub-set of immoral and disgraceful conduct into the realm of prohibited and legally punishable acts as provided by positive law. Yet, how could the Supreme Court define what is disgraceful and immoral? This we could have found out if the issue was framed without the "R" word.

The Supreme Court, however, saw religion written all over the case. So, we have to take it from there.

(To be continued)

Dog Lawyer

Will Ferrel provides an intermission today. Go ahead sue your neighbor's dogs.

Law, Morality, Religious Freedom, and Hooking Up with another Woman's Husband (Part One)

Time was when a person could get his head chopped off for believing that the world was round. Science, religion, and politics were hopelessly intertwined that any belief (religious, scientific or otherwise) that did not conform with the establishment was regarded as a national security risk. So, off the heads of the non-conformists went.

But times have changed, man has drawn the boundaries between science and religion, science and politics, and religion and politics. The issues today deal with finding that exact spot where the lines are drawn so science, religion, and politics will stay where they are, and keep the modern man at peace with himself and with others. Unfortunately, there are some things that cannot be helped, like getting trapped in a middle of a war among religions or having a president who bribes bishops or, in the case of one Supreme Court litigant, getting hooked up with another woman's husband.

On June 22, 2006, the Supreme Court promulgated a decision in a case that saw the boundaries blurring.

A court interpreter, who was living with another woman's husband, an immoral conduct, pleaded not to be dismissed from service on the ground of religious freedom. She had the blessings of the Jehovah's Witness, her religion, and she had documents to prove it.

The Court grappled with the case, and deciding almost unanimoulsy, but for two dissents, ruled in favor of the woman.

In the next few posts, I hope to re-trace the steps that the Supreme Court took before arriving at the decision. I don't know whether it will get me in the same place but the exercise will surely be worth the while for this blogger, who has not handled a case of this complexity, and hopefully never will.

The links to the case:

There are two decisions on the same case, the second neccessarily linked to the first.

1. Alejandro Estrada vs. Soledad S. Escritor [A.M. No. P-02-1651. August 4, 2003] This decision contains the links to the dissenting opinions of Justice Carpio and Justice Ynares-Santiago, and the separate opinions of Justice Bellosillo and Justice Vitug.

2. Alejandro Estrada Vs. Soledad S. Escritor. [A.M. No. P-02-1651. June 22, 2006] Justice Carpio and Justice Ynares-Santiago maintained their dissenting votes.

Justice Reynato Puno wrote both decisions. The facts of the case as narrated by the Supreme Court are as follows:

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Piñas City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act.

Judge Caoibes referred the letter to Escritor who stated that “there is no truth as to the veracity of the allegation” and challenged Estrada to “appear in the open and prove his allegation in the proper forum.” Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritor’s motion was denied.

[LA VIDA LAWYER NOTES that the animosity between Judge Caoibes and Escritor is apparent from this point onwards. Escritor would later cite this animosity in her defense.]

The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Piñas City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritor’s live-in arrangement did not command respect.

[LA VIDA LAWYER NOTES that Estrada's efforts should be commended but his motives are suspect. Yet, there was nothing on record to link Estrada to Judge Caoibes.]


Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husband having died in 1998. She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a “Declaration of Pledging Faithfulness,” viz:

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship.

I recognize this relationship as a binding tie before ‘Jehovah’ God and before all persons to be held to and honored in full accord with the principles of God’s Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise to legalize this union.

Signed this 28th day of July 1991.

Escritor’s partner, Quilapio, executed a similar pledge on the same day. Both pledges were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still alive but living with another woman. Quilapio was likewise married at that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their “Declarations of Pledging Faithfulness,” but Judge Caoibes deemed it unnecessary and considered her identification of her signature and the signature of Quilapio sufficient authentication of the documents.

[LA VIDA LAWYER NOTES that from here onwards what happened was like a judicial pinball where the case hopped from one court officer to another, which is a reflection of the sorry state of our judicial system.]

Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepaño, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregation’s approval of her conjugal arrangement with Quilapio, viz:

Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before “JEHOVAH” God and before all persons to be held to and honored in full accord with the principles of God’s Word.

xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation to her case.

Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for investigation, report and recommendation. In the course of Judge Maceda’s investigation, Escritor again testified that her congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which explain the basis of her congregation’s belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritor’s) husband.

Gregorio Salazar, a member of the Jehovah’s Witnesses since 1985, also testified. He had been a presiding minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained the import of and procedure for executing a “Declaration of Pledging Faithfulness”, viz:

Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and regulations in your congregation?

A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request them to execute a Public Declaration of Pledge of faithfulness.

Q: What is that document?

A: Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document?

A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a member (sic) of the congregation, baptized member and true member of the congregation.

Q: What standard rules and regulations do you have in relation with this document?

A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic) gives the Christian Congregation view that the couple has put themselves on record before God and man that they are faithful to each other. As if that relation is validated by God.

Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the congregation?

A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.

Q: And what does pledge mean to you?

A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation, opposite sex, and that this document will give us the right to a marital relationship.

Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage?

A: Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof?

A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.

Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit?

A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said “that everyone divorcing his wife, except on account of fornication, makes her a subject for adultery, and whoever marries a divorced woman commits adultery.


[LA VIDA LAWYER NOTES: How many sic notices do you see?Seriously, the testimony of this minister is disastrous to the Respondent, which makes me wonder why it was offered in the first place. Surely, there is a difference if one were to cohabit with the blessings of a congregation, and if one were to exercise her religion by cohabiting with another. The first is akin to religous tolerance and the other an act of religous freedom itself. And that last qoute from the Book of Matthew has no connection whatsoever with issues at hand. It makes even wonder whether this fellow is really a minister.]

Escritor and Quilapio transferred to Salazar’s Congregation, the Almanza Congregation in Las Piñas, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been considered by the Atimonan Congregation when they executed their declarations.

Escritor and Quilapio’s declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article, “Maintaining Marriage in Honor Before God and Men,” in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower.

The declaration requires the approval of the elders of the Jehovah’s Witnesses congregation and is binding within the congregation all over the world except in countries where divorce is allowed. The Jehovah’s congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation to check the couple’s marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. [LA VIDA LAWYER NOTES: Where did this come from?] The marital status of the declarants and their respective spouses’ commission of adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritor’s and Quilapio’s declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregation’s branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation.

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovah’s Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of the magazine article entitled, “Maintaining Marriage Before God and Men” to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is distributed to the Jehovah’s Witnesses congregations which also distribute them to the public.

[LA VIDA LAWYER NOTES that the Complainant did not challenge the status of Jehovah's Witness as a religion. Although it is a foregone fact, it would have been a fruitful exercise to define once and for all what qualifies as a religion.]

The parties submitted their respective memoranda to the investigating judge. [LA VIDA LAWYER NOTES that a litigant's memorandum contains a summary of the position fo the litigant. It's the most important pleading as it is the last pleading that a judge receives before he decides a case.]

Both stated (in their memoranda) that the issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the Jehovah’s Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritor’s administrative liability must likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the “proper public authorities” such that she bound herself “to seek means to . . . legalize their union.” Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the Jehovah’s Witnesses congregation and use their religion as a defense against legal liability.

On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and practice of her religion, the Jehovah’s Witnesses. She quoted portions of the magazine article entitled, “Maintaining Marriage Before God and Men,” in her memorandum signed by herself, viz:

The Declaration of Pledging of Faithfulness (Exhibits “1” and “2”) executed by the respondent and her mate greatly affect the administrative liability of respondent. Jehovah’s Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of Caesar’s authority regarding marriage. From country to country, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of God’s Son, can be guided by basic Scriptural principles that hold true in all cases.

God’s view is of first concern. So, first of all the person must consider whether that one’s present relationship, or the relationship into which he or she contemplates entering, is one that could meet with God’s approval, or whether in itself, it violates the standards of God’s Word. Take, for example, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an incestuous relationship with a member of one’s immediate family, or a homosexual relationship or other such situation condemned by God’s Word. It is not the lack of any legal validation that makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation could not make any kind of “Declaration of Faithfulness,” since it would have no merit in God’s eyes.

If the relationship is such that it can have God’s approval, then, a second principle to consider is that one should do all one can to establish the honorableness of one’s marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having obtained the divorce (on whatever legal grounds may be available), the present union can receive civil validation as a recognized marriage.

Finally, if the marital relationship is not one out of harmony with the principles of God’s Word, and if one has done all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability.

Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the political state. She always gives primary concern to God’s view of the union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to one’s mate, thus, keeping the marriage “honorable among all.” Such course will bring God’s blessing and result to the honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)[20]

Respondent also brought to the attention of the investigating judge that complainant’s Memorandum came from Judge Caoibes’ chambers whom she claims was merely using petitioner to malign her.

(Footnotes have been omitted.)

(To be continued)

Groucho Marx on Youtube

Following a contentious series on the NLRC abolition, I thought may be this blog should try some fun. I caught the youtube bug lately and found myself some clips by Groucho Marx. In this clip. Groucho Marx hosts the 50's show, You Bet Your Life. Groucho demonstrates his dead pan wit and humor as he interviews the lady whose family had several appendectomies in 21 days.

Conclusion: It is time to abolish the NLRC.

This will conclude the series on the NLRC, but it doesn't mean I will stop talking about that agency here or elsewhere.

The NLRC has been a theoretical mistake and a practical disappointment. While founded on an ideology that romanticized the worker, the agency bred monsters that ultimately defeated the workers interests. How many industries has it destroyed in the guise of protecting worker's rights? Needless to say, if there are no industries, there are no workers. How many workers have been sold by their unions to their employers? These anomalies have been so common that they are now regarded as the norm, instead of the exception. Indeed, there is no end to these problems unless the NLRC is abolished.

After the abolition of the NLRC is effected, my proposal is the transfer of its judicial functions to the Regional Trial Court. These courts should then adopt rules that will remove all unfair presumptions in favor of labor, and maintain the usual presumptions in a civil dispute. In this manner, the fairness of the rules of procedure will not be questioned and no class or specific interest group will have undue advantage over others.

Further, the transfer of the NLRC functions to the regular courts will effectively break the hold of syndicates and power brokers in labor disputes. Of course, this is not to say that the regular courts are free from the hold of other syndicates and power brokers. Yet, the Supreme Court is conducting its own efforts against graft and corruption in the judiciary, and so this matter of integrity of the court system is already being addressed.

Another matter which I propose is the creation of the office of labor advocates. I imagine it as an institution which will advocate labor's cause pro bono before the courts in the same manner as the the Public Attorney's Office represent the cause of the poor before the courts. But the system should be that the labor advocates should be initially convinced that the laborer has a prima facie case against management in order to ensure that the office will not abused. Of course, the laborers can hire their own paid counsels; the labor advocates office will handle the cases of those who cannot afford to pay for their own lawyers.

This is a blog. Although I have thought hard about this series for weeks, I know there are matters which I missed. But I've posted this proposal here, so that researchers of people who are in a position to change things in this country will have something with which to start. The NLRC is and has always been a bad idea. Its immediate abolition is imperative.

The Tribes of Corruption (Is it time to Abolish the NLRC Part VII)

Before I proceed, let me just clarify the points I made in earlier posts. I am only against the NLRC. I am not anti-labor law in general. The NLRC is a quasi-judicial body; it should be neutral. It should not have a bias.

As stated in the earlier posts, in view of the uselessness of the appeal process, the labor arbiter's decision is the key to any labor dispute. Whoever wins in the level of the labor arbiter has won ninety percent of the battle. It is for this reason that labor arbiters have been the subject of corruption.

When I was a freshman law student of the Ateneo, one of my professors (who is now the dean of another law school) once said some labor arbiters who agree to rule in favor of a litigant for a consideration would even ask the lawyer to draft the winning decision for his client. I was shocked when I heard this from a teacher. But this observation of his would be validated many times by fellow lawyers who have experienced dealing with labor arbiters. The consideration is not always in the form of money. It could be political accommodation, a quid pro quo among fraternity brothers, or family members. These brings us to the point that the NLRC is a territory of certain groups or tribes. If a litigant is not a part of of any these tribes or is unable to find someone who is one among these tribes, the likelihood of obtaining a favorable judgment is poor regardless of the merits of the case. These tribes are as follows:


1. The Fraternities

Ten years ago when I was still looking for employment among the big Makati law firms, I was struck by a brochure being peddled by one of the law firms. The brochure bragged that a certain partner of the firm enjoys good relations with the labor arbiters of the NLRC. According to the brochure, this was due to the fact that the partner was a member of a certain law fraternity many of whose members were incumbent labor artbiters. Eventually, as I got employed and began working for a Makati law firm, I learned that the brochure was not lying. The partner had an impeccable record win-loss record with the NLRC, and the network was so reliable that all he needed to do was call to get his client's way.

2. The Labor Unions

In my early years in the practice, I once had an illegal dismissal case filed against my client by an employee who was being supported by one of the more prominent labor unions in the country. I thought my case had a good chance of winning, as my client had followed the proper procedure for dismissing an employee, so I was against any settlement. To my surprise, however, the labor leader approached me after the first hearing and offered to convince the employee to withdraw the case in exchange for twenty thousand pesos. I found the offer outrageous; and I rejected it immediately. The employee was unaware of the offer, and he thought all along that the labor union was working for his interest.

To my disbelief, we lost the case to the employee. Given the difficulty of the appeal process, I recommended settlement to the client. My client moved on and eventually I have forgotten about that heartbreaking loss until one day, I met the labor leader again under different circumstances. On one occasion, I asked him casually how they managed to win that case years ago. He smiled and told me that it was because the arbiter was in the union's payroll. This is plain hearsay, not enough to build a case on -- i know -- but then again, this is a blog, and the rules of evidence does not apply.

3. The Establishment

By the "Establishment", I mean politicians who are in power. I have seen how powerful handwritten notes on letterhead notepads of high government offices can do wonders for labor disputes. Usually, the notepads are inscribed with innocent suggestions or requests, such as "please assist the bearer" and the like. Yet, recepients read between the lines and know that a granted request could be a ticket to a promotion to a higher office and better pay.

4. The Superstars

By "Superstars", I mean individual lawyers or law firms who have built their practice around key NLRC Commissioners and labor arbiters. Superstars operate after office hours. They wine and dine NLRC Commissioners and labor arbiters to protect cases pending with these officials. Many years back, there was a white paper being passed around by the NLRC employees about a certain lady lawyer who was rumored to be the paramour of a then incumbent NLRC Commissioner. I read some of these white papers, and I found the details about how cases were being fixed by the alliance of the lady lawyer and the NLRC Commissioner very interesting. Nothing would come out of these white papers, because eventually the NLRC Commissioner would be booted out of office for another reason, and the white papers stopped. But there are other Superstars that operate these days like the once very powerful lady lawyer.

There are other groups that thrive in the flawed environment of the NLRC, but the more powerful groups are those mentioned above. This is the reason why the abolition of the NLRC is an imperative for national development. The pro-labor structure of the NLRC has bred these groups who thrive upon its unfairness. Thus, if the NLRC is dismantled the powers of these tribes over labor disputes would be greatly diminished, and true social justice will have a chance.

(To be continued)

Flawed in Practice:Is it time to abolish the NLRC? Part VI

The first five parts of this series tried to show why the NLRC as an institutional concept of social justice is flawed. Today, I will try to show why it is a failure in practice.

In post number 4, I mentioned that the labor arbiter was given a near absolute power to decide on the outcome of a labor dispute, and the employer's option to appeal is rendered useless, because an adverse decision of the labor arbiter is immediately executory. As a result, the labor arbiters are the prime targets for corruption.

Now, I will not say that there are labor arbiters who could be swayed to rule in favor of a party for a measly Php 30,000. I will not say that they even ask their patrons to draft the decision in exchange for cash. I will not say that any given Friday night, you will see many of these arbiters carousing the night away with litigants in bars and videoke private rooms in Timog Ave. and Quezon Ave. . I will not say that labor arbiters, who are not musically-inclined like the others, prefer to be included in the payrolls of big business and big labor unions. Why will I say those things?

Instead, I will say that labor arbiters cannot be insulated from the corruption that pervades the entire justice system in this country. What does that mean? It means that you can ask every labor arbiter if any of them has ever been approached to rule in favor of a litigant in exchange for favors, and most likely they will say yes. But if you ask them if they ever agreed, they will probably say no. But you will never know the truth to their answer on the second question. All I can say is you are stupid if you believe their answer to the second question. Do you ever wonder why the NLRC does not have a reputation for honesty? It's because there are no institutions in this country with an honest reputation.

One of my early memories as a young lawyer doing the rounds of labor hearings is that of a laborer counting his cash after a successful execution of a money award. After counting, the laborer handed about four pieces of 500 peso bills to the secretary of the labor arbiter in open view of everyone in the room. And seeing our disapproving looks, the secretary said "why will I refuse money which is given to me for free?" as she opened her drawer and dropped the day's loot into it.

I know I should be saying more, but my fellow lawyers who have practiced before the NLRC can do the rest for me. Ask them if the NLRC is an honest institution. I bet you one percent of them will vouch for its honesty, and the ninety-nine percent will roll their eyes.

(To be continued)

The appeal that is not an appeal (Is it time to abolish the NLRC? Part 5)

The time has come to abolish the NLRC. This is the thesis of this series, and today I will discuss the unfair appeal process of the NLRC and its effect.

The NLRC Rules of Procedure provides that when a labor arbiter decides in
favor of an employee, i.e., there is a ruling that the dismissal of an employee is illegal, the decision is immediately executory. The employer may appeal the ruling before the National Labor Relations Commission, but regardless of the appeal, the employee should be reinstated to his employment. If the employer does not like to reinstate the employee, the employer may reinstate the employee only in the payroll. This means that the employee will get paid even if he does not report for work.

As an employer myself of a small enterprise this rule is one of the toughest rule to accept. It is bad enough that an employer has to employ somebody he dislikes; it is worse if the employer is forced to pay the employee for not working at all – and this because a labor arbiter said so. The labor arbiter is not impeccable, he makes errors of judgment like every ordinary person.

But with the rules of appeal making the decisions of the labor arbiter executory pending appeal, the labor arbiter's word is law. The value of the appeal process to the employer is negated, because the employer is forced to follow the decision of the labor arbiter even if the decision is not yet final.

Thus, in view of the crucial role of the labor arbiter in the labor dispute, the labor arbiter is the prime target for corruption and influence peddlers. I will have a separate post on corruption in the NLRC in the next few days, but here what I am trying to show is that because of the worthless appeal process, the labor arbiters are the strongest target for corruption. The key question is, can we expect the labor arbiters not to be corrupted?

(To be continued)

Presumed Guilty (Is it time to abolish the NLRC part 4)

The fallacy of the NLRC's bias for labor is the point of this series. And I proceed to show the unfairness of its rules of procedure on labor cases.

I mentioned in the first post that in an illegal dismissal case, the burden of proving the legality of an employee's dismissal is on the employer. If it were a basketball game, labor gets plus twenty points.

The NLRC Rules of Procedure provides that in the event that the mediation conference fails, the parties are required to simultaneously submit their position papers. As a practicing lawyer, l've gone through this procedure many times, and there many instances when I got a mere two-page document as an employee's position paper. Those position papers have practically nothing to say, but they don't have to say anything to begin with, because the burden of proof is on the employer.

Again, this unfairness in the rules could be tolerated by big corporations, but to small and medium enterprises, which populate Philippine commerce, it's a cruel joke.
Whimsical and arbitrary labor complaints, even if apparent in a two-page position paper can still have a chance to win millions of pesos if the employer is unable to discharge the burden of proof properly. And in discharging the burden of proof properly, the employer has to procure the services of competent and pricey lawyers. How can we expect small and medium enterprises to thrive, if the NLRC cannot protect it from baseless and whimsical labor complaints?

In ordinary civil cases, the party who alleges a fact has the burden of proof to support the allegation. In a labor case, the employee alleges the fact of illegal dismissal, but the burden of proof that the dismissal is legal is on the employer. In other words, any employee can go the NLRC and claim illegal dismissal, and the employer has no choice but to spend for legal services to prove otherwise. The employer is presumed guilty, just by the mere say so of the employee.

The premise of this rule is that all employees are saints, and all employers are rich enough to pay for legal costs. The absurdity is staring at us. It's time to get real.

(To be continued)

Forced to Settle (Is it time to abolish the NLRC? Part 3)

A pro-labor quasi-judicial agency administering labor relations stalls progress in this country. In the last entry, I pointed out that the NLRC rule making it easy to file labor complaints has caused the flooding of the NLRC with whimsical and baseless labor cases. Today, I continue with another ill-effect of this pro-forma filing of labor cases.

Once a labor case has been commenced and summons has been served any prudent employer will have no choice but to send a lawyer to represent the employer in the hearing. Immediately, the employer incurs costs in procuring the services of a lawyer.

The average legal cost for handling a labor case may be conservatively estimated at 50,000 pesos. Thus, the employer is already hit with a budget item. To big companies like PLDT or Ayala Corporation, 50,000 pesos is nothing. Unfortunately for this country, there are very few PLDTs and Ayala Corporations here. The average enterprise in this country will feel the hit of a 50,000 useless expense. That money is about the cost of two computers that could be used for operations, or about the cost of one payroll for eight employees. It would take only one whimsical foolish employee to fill out a pro-forma complaint for an employer to get hit with 50,000 pesos.

Normally, the first two hearings with NLRC is meant for mediation and conciliation. The procedure is concluded with a deal on the table. The employee would demand for cash and the employer would have a tough choice to make: settle the claim forever at a fixed amount or watch his litigation expenses grow as the case progresses. The decision is made even tougher if the employer feels that the claim is unjust. The employee was guilty and was properly disciplined or terminated. But faced with a dilemna where he could fight for a principle and impair his business
or swallow his pride and protect his livelihood, the easy way to go is to settle.

Thanks to the NLRC the bastion of the labor movement many small and medium businesses are faced with this dilemna everyday.

(To be continued)

The False Premise in Action (Is it time to abolish the NLRC? Part 2)

Time was when this country was ruled by statesmen who divided it into two: the haves and the have-nots, and built the government on this premise. In the field of labor administration, the division is between the capitalists-enterpreneurs and the workers. And because the fictional exemplar of labor is the oppressed, poverty-stricken worker, labor administration tilts heavily in favor of labor.

Yet, as stated a post ago, the premise is greatly flawed, because this country is not just ran by capitalists and workers. A big number of people defy classification: workers who double as enterpreneurs, enterpreneurs who work for their business, and people who are neither enterprenuers or workers, but somehow get involved in this class dichotomy. The saddest part is the people in the middle outnumber those in the opposite extremes combined. Thus, to govern labor relations on the premise of this monochromatic thinking is to ignore the vast majority who is trapped in the middle.

Let's examine how this flawed thinking is implemented by the NLRC with disastrous results.

When an employee sues his employer, all he has to do is fill-out a mimeographed form, check the boxes in the form to indicate his causes of action, sign it and it is all over in a few minutes. No lawyers required. Immediately, the case is deemed commenced, and the employer is summoned for a hearing.

While I don't have anything agaisnt efficiency, I think this kind of out-of-the-box procedure is a great contributor to the great number of whimsical cases that clog the dockets of the NLRC. Hardly anybody thinks about what they put in those forms. I once received a labor complaint, where the complainant checked all the boxes for unpaid wages, holiday pay, and thirteenth month pay, when the truth was he was fully paid for all his services, and his principal cause of action was that of illegal dismissal only. When examined during the labor conference, the fool admitted having checked those boxes because he thought that by checking them he would still be entitled to them.

Yet, if for example, it was the employer who had a cause of action against his employee, the employer will have to hire a lawyer, who will counsel the employer on whether it is worth it to file a case. It is only after the lawyer and the employer have examined their position that a decision to file a case or not is made. And if the decision is to file a case, the lawyer has to draft a complaint specific to the causes of action. The entire procedure allows the employer to contemplate about the course of action knowing that filing a case has its burden.

Sadly, as the NLRC's existence is premised on making things easy for labor, labor complainants have hardly anytime to contemplate on their decision to file a case. The result is a build up of pointless cases before the NLRC. These pointless cases not only clog the dockets but cost millions of pesos in fees and management time of employers, millions that could have been better used to improve working conditions of the other employees back in the office.

Efficiency has its costs. They made it easy for people to complain, so they got flooded with complaints. It's the false premise in action.

(To be continued)

Is it time to abolish the NLRC? (Part 1)

The National Labor Relations Commission (NLRC) is a specialized quasi-judicial government agency that deals specifically with labor issues. Save for a few exceptions, any dispute relating to employer-employee relations will fall under NLRC jurisdiction.

Every time I have a case in the NLRC, I often remember what the late President Ramon Magsaysay used to say about social justice: "Those who have less in life should have more in law." In the entire landscape of the government burueacracy, the NLRC is undoubtedly the place where you can find the highest density of social justice on a per square inch basis. Every rule of this agency favors labor; from the filing of the complaint to the appeal of its rulings -- every step of the way is like a rose garden for labor and a bloody road for management.

Well, I know have to support the above assertion with facts, and I will do that as I proceed with this series, but let met just get this point out in the open: The NLRC is a big obstacle to economic progress. It is flawed in theory. It is flawed in practice. And if I had billions of dollars to invest in the Philippines, and I had one wish that the politicians in Congress would grant, that would be the abolition of this antiquated Marcosian legacy called the N.L.R.C.


1. False Premise. False Logic.

One of the hardest things to explain to a client who was been sued before the NLRC is the rule that the employer has the burden of proof in an illegal dismissal case. This means that if an employer dismisses an employee, and the employee goes to the NLRC, the dismissal is presumed to be illegal, unless the employer proves otherwise. In other words, if you were to compare an illegal dismissal case to a basketball game, labor has plus twenty points.

Pro-labor advocates defend this "handicap rule" on the premise that the employee is presumed to have less resources to engage in litigation, and capital or management has more resources to get in a legal fight. Thus, the handicap is meant to equalize the built in advantage, as it were, of capital. This is the biggest lie ever told in the history of the labor movement in this country.

Most certainly, not all employees are poor, and not all employers are rich. Just because a person has money to put up a business does not mean he has a built-in advantage in a labor case; and, most certainly, just because a person chose to be employed does not mean he has a disadvantge in a labor dispute.

The truth is for every Ayala corporation-style employer in this country, there are hundreds of thousands more employers struggling to survive. And if you put a budget item in their balance sheet for litigation expenses, most if not all of them, will not meet their payrolls and some would even close shop. And as I type this piece, I half-remember companies that closed shop because of a labor dispute gone awry. Rubberworld? Divine Word College? There are hundreds in the list -- sure-fire proofs that the premise of a pro-labor NLRC could be fatal to business.

And when an employer closes shop is that ever a victory for labor? Social Justice is a very fashionable catch phrase for our politicians, and they have been mouthing it for decades. But none had come up to ask the question: is the kind of social justice that we have here the reason why this country is in a rut? Could it be the reason why we have very few success stories in business?I'm ten years in labor litigation. I say yes, probably not the sole reason, but certainly one of the primary reasons.


(To be continuted)

What's the gov't doing about the brown tree snake threat from Guam?

My wife, Ces, told me about a friend of hers who had to skip a vacation in the beaches of Guam, because of the brown tree snake epidemic in the island. I did not believe the tale until I checked out the links from Google that led me to this site.

An entry from Wikipedia, provides this background:

(Guam) is also known as a prominent example for the disastrous effects of bioinvasion: A stowaway on U.S. military transport at the end of World War II, the slightly venomous, but rather harmless, brown tree snake (Boiga irregularis) came north to Guam and killed almost the entire native bird population on the previously snake-free island. This snake has no natural predators on the island; nowadays, Guam is one of the areas with the highest snake density in the world (an estimated 2,000 snakes/km²). Even so, residents rarely see these snakes. They curl up and hide during the day, and move about on trees and fences at night. As prodigious tree climbers, the snakes allegedly caused frequent blackouts in neighborhoods across the island. They climb up the poles, into the black boxes, and electrocute themselves. Now many power poles have a slick metal sheath that prevents the snakes from climbing.

This fact sheet is also informative.

The snakes have already invaded Saipan, and the people from Hawaii have also noted the threat, and have prepared for it.

The queation is what about the Philippines? Are we even aware of this threat?

PLAGIARIST!

I'd appreciate it if anyone can give me information about the owner of the site shown above. The blog copied 99.9% of my Eraserheads review of the Ultraelectormagneticjam which appeared here. Please warn that idiot that I have a law office, and we have plenty of time and resources to sue people like him. And if he ever sets foot on the Philippines, he's going straight to jail.

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, http://pacificnoplan.blogspot.com/. 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.

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?

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.

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.

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.

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.

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.

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.

The Brewing Pre-Need Storm

The link above takes you to a headline from abs-cbnnews.com. The story is about the merging of the legal teams of all pre-need victims to run after pre-need companies and their directors who obtained legal cover through court-sanctioned "corporate rehabilitation". I have a strong feeling this is the stuff that could make a revolution. Hard-earned money made by wage-earning parents were given to pre-need comanies ran by high-rolling executives. And all the billions of pesos vanished on sour investments. Do we expect the parents to simply accept that?

Personally, I think the whole pre-need system can only work if we have something like the Bangko Sentral ng Pilipinas (BSP) regulating them, instead of mere corporate regulators in the Securities and Exchange Commission (SEC). The system of check and balances and financial expertise cannot be found in the SEC. The experience and competence is with the BSP.

Meanwhile, the courts should dismiss all those "corporate-rehabilitation" cases, so the pre-need owners could meet accusations of fraud and racketeering in the proper criminal courts. If we give less than that to these pre-need victims, we are surely headed for chaos.

CPR is maximum tolerance? Oh yeah, like 1 + 1 = 3

CPR is maximum tolerance -- That was the official line of defense that the Government presented to the Supreme Court in the decision about the constutionality of the "Calibrated Pre-emptive Response" policy of the Government in dealing with protestors. How the Government could spin that tale to the Supreme Court is an amazing act of legal wizardry, nay voodooism.

Consider the plain and simple denotative meaning of the words, "calibrated" "pre-emptive" "response". Calibrated means calculated, planned, and pre-meditated. Pre-emptive means to prevent something by disabling the enemy beforehand, as in pre-emptive strike. A response is a reaction to something. In other words, calibrated preemptive response is a planned and preventive strike before the other side could act. In Filipino, "unahan and kalaban". In Rambo terms, it means" First Blood". If you examine the context during which the policy was announced --i.e., the "tired of chasing the bully in the schoolyard" speech -- it was an abandonment of the "maximum tolerance" policy that even the late dictator Ferdinand Marcos officially honored and passed into law under B.P. 880. Sec. Eduardo Ermita in an official declaraiton as quoted by the Supreme Court said,

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duty constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a “no permit, no rally” policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.


The key sentence is "The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance." In layman's terms, "maximum tolerance" goes out the door. CPR goes in.


So how did the Government theorize that CPR is also maximum tolerance? The ponente of CPR decision, Justice Adolfo Azcuna thankfully quoted the affidavit of the same Executive Secretary Eduardo Ermita so the world and Filipinos of all ages could forever remember this myth:

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of “calibrated preemptive response” is in consonance with the legal definition of “maximum tolerance” under Section 3 (c) of B.P. Blg. 880, which is the “highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same.” Unfortunately, however, the phrase “maximum tolerance” has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be “tolerated.” Clearly, the popular connotation of “maximum tolerance” has departed from its real essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that “maximum tolerance” is not in conflict with a “no permit, no rally policy” or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, “we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed.” None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.[25]

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else.

Now, isn't that such a nice trick of legal voodooism? I could almost imagine Sec. Ermita scratching his head and saying, "CPR is the same as maximim tolerance" as he turns around winking. Sec. Ermita is one lucky fellow, for Justice Azcuna is one of the most polite and eloquent jurists around. If I were the ponente in this case, I would have declared Ermita in contempt of court, and sent him to jail with the added task of copying 1,000,000 times in long hand the meaning of the words "calibrated" "preemptive" "response" as defined in all the dictionaries of the Malacanang library. But that was never Justice Azcuna's style.