Notes on the Anti-Terrorism Law (Part 5)

IX. We come now to the second authorized legal intrusion into private rights under the Anti-Terrorism Law, the detention of suspected terrorists.

The Anti-Terrorism Law authorizes the warrantless arrest of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism under the following circumstances:

1. There is an authority in writing from the Anti-Terrorism Council
2. The subject of the arrest is a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism
3. The arrest results from the surveillance authorized under Section 7 (discussed in an earlier post) and examination of bank deposits under Section 27 (to be discussed later)

Section 18 of the law gives the law enforcement personnel who arrested the suspected terrorist a period of three (3) days counted from the moment of arrest to submit the arrested terrorist to the proper judicial authority.

The general rule on warrantless arrests of person is provided in Section 5 Rule 113 of the Revised rules of Criminal Prcedure, which states as follows:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Obviously, the provision under the Anti-Terrorism Law for the warrantless arrest a suspected terrorist appears to be a new exception to the rule on warrantless arrests under the Rules on Criminal Procedure. The problem here is that with this provision, Congress appears to be legislating on the matter of criminal procedure in the protection and enforcement of a constitutional right. Under Section 5 Article VIII of the Constitution, the Supreme Court has the jurisdiction to "promulgate rules concerning the protection and enforcement of constitutional rights" Thus, the issue is, Congress may have legislated on a matter which is the exclusive province of the Supreme Court.

Fr. Joaquin Bernas, S.J., in his commentaries on the Constitution, says the power of Congress to legislate on rules of procedure was recognized by the Constitutional Commission, but after the debates on the issue and as a matter of compromise, the Constitutional Commission did not make this power explicit in the text of the 1987 Constitution. This opinion, however, has not yet been supported by jurisprudence.

Thus, this provision of the Anti-Terrorism Law on the warrantless arrest of a suspected terrorist may be challenged as an unwelcome encroachment on the powers of the Supreme Court under Article VIII Section 5 of the 1987 Constitution.

NOTES ON THE NEW ANTI-TERRORISM LAW (Part 4)

VIII. We come now to a discussion on one of the novel legal intrusions on the rights to privacy that has been sanctioned by the Anti-Terrorism Law.

Section 7 of the Anti-Terrorism Law provides for the requisites under which surveillance of private communications shall be allowed, as follows:

1. It must be done by a police or law enforcement official and the members of his team.

2. There must be a written order of the Court of Appeals

3. The authority given by the Court of Appeals shall be listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose,

4. The object of the surveillance shall be any communication, message, conversation, discussion, or spoken or written words

5. The subject shall be communications between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

The law, however, provides exceptions with respect to the surveillance, interception and recording of communications between the following:

1, lawyers and clients,
2. doctors and patients, and
3. journalists and their sources and confidential business correspondence.

This is one of the controversial provisions of the law, because it excludes surveillance of private communications covered by this law from the application of the Anti-wire Tapping Law or Republic Act No. 4200. The issue is will this provision violate the Constitution, particularly, Art. III section 3? It states as follows:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.


The requirement of an order from the Court of Appeals stated in the Anti-Terrorism Law appears to fit the exception provided by the Constitution on the inviolability of the privacy of communication and corresppondence. Thus, the argument that this provision is unconstitutional appears to be very weak.

Further, in securing this order from the Court of Appeals, the law provides a rigorous procedure in Section 8. The provision states that the authority shall be granted by the authorizing division of the Court of Appeals only upon compliance with the following requirements:

1. An ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application,
2. Upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish:

(a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed;
(b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and,
(c) that there is no other effective means readily available for acquiring such evidence.


The procedure appears to mirror the provisions of Section2 Article III of the Constitution with respect to the issuance of search and arrest warrants, except that the Anti-Terrorism Law required a higher court, the Court of Appeals, as the court from where the authority for surveillance may be secured. Section 2 Article III of the Constitution states:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.


By wording this provision in a simlar manner, Congress incorporates by analogy to the Anti-Terrorism Law the wealth of jurisprudence that has evolved in the Philippines relating to the procedure of the examination of the applicant and his witnesses and the finding of probable cause.

Thus, this novel legal intrusion sanctioned by the Anti-Terrorism may survive the anticipated constitutional challenge from the human rights activists.

Notes on the New Anti-Terrorism Law (Part 3)

VII. Section 17 provides the Department of Justice with the remedy of having an organization, association, or group of persons declared as a terrorist group upon application, with notice and opportunity to be heard, with the Regional Trial Court. The declaration of an organization as an outlawed terrorist group triggers for the government its rights to exercise the powers of surveillance of private communications (Sections 7 to 16) and examination of bank accounts under section 27 to section 43) The law, however, requires that an organization may only be declared as an outlawed terrorist group upon notice and opportunity to be heard. To be declared as a terorrist organization, the DOj has to prove that the organization actually uses the acts to terrorize mentioned in the law to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand. Section 17 states,

SEC. 17. Proscription of Terrorist Organizations, Association, or Group of Persons. – Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.

My first impression was that this might be a superfluous procedure, because if the DOJ has evidence that an organization is a terrorist organization, it might as well sue the members for committing the crime of Conspiracy to Commit Terrorism. Yet, upon closer examination, it appears to be a way to shortcut the process of convicting actual terrorists. Once an organization is declared a terrorist, then all members will be deemed guilty of the crime of Conspiracy to Commit Terrorism, and all the police has to do is prove people's membership in the terrorist organization.

The question is how will a judge distinguish among members, affiliates, supporters, sympathizers, friends, relatives, and neighbors of the terrorist organization, or among the supporters, sympathizers, friends, relatives, neighbors of the members of the terrorist organization, or friends of the supporters of the members of the terrorist organization? It seems to me the DOJ will all have them bunched as one group of terrorists to be sued and jailed. It is a potential tool for witch-hunting. There is a danger for people to be declared as terrorists by association regardless of the degree of association. This is so because in a conspiracy the doctrine is "the act of one is the act of all." Thus, for so long as a person's association with a judicially declared terrorist organization is proven, he will be guilty of Conspiracy to Commit Terrorism and punished as such. If the National Democratic Front, for example, is declared as a terrorist organization, even Joma Sison's dance instructor could be jailed for Conspiracy to Commit Terrorism.

(To be continued)

Notes on the New Anti-Terrorism Law (Part 2)

IV. The Anti-Terrorism Law does not appear to provide a penalty for frustrated or attempted stage of the crime of terrorism. Does this mean that the crime is only punishable in the consummated stage? My reading, however, is the crime of Terrorism is punished regardless of the stage of commission. When the law states that, "Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: x x x or under (the Special Penal laws enumerated therein)" , it includes all stages of commission of the crimes enumerated. Thus, for so long as the other elements of Terrorism concur, the crime is punished as consummated with 40 years imprisonment.

The scenario is, for example, the case when a murder is frustrated because the victim survives the attack. Assuming the other elements of Terrorism concur, can we say that the crime is frustrated Terrorism? No, because the frustrated murder already meets the first requisite for the crime of Terrorism. Thus, regardless of the stage of commission, for so long as all the elements of the crime are present, Terrorism is committed and punished with 40 years in jail.

V. The Anti-Terrorism Law fixes the penalty for the crime of Terrorism at 40 years, without the benefit of the Indeterminate Sentence Law. In general, the Indeterminate Sentence Law tends to lower the penalty for the crime depending on the attendant circumstances to the crime. With respect to the crime of Conspiracy to Commit the Crime of Terrorism, which is penalized also with with 40 years of imprisonment, the Anti-Terrorism Law did not exempt it from the application of the Indeterminate Sentence Law. Conspiracy to Commit terrorism is committed when two or more persons come to an agreement concerning the commission of the crime of terrorism and decide to commit the same.

VI. Accomplices and accessories to the crimes of Terrorism and Conspiracy to Commit Terrorism are punished by a penalty of seventeen (17) years, four (4) months one day to twenty (20) years of imprisonment and ten (10) years and one day to twelve (12) years of imprisonment respectively. Note that for accomplices and accessories, the penalty provided is a range. What would be the standards that a judge can use in graduating the penalty for Terrorism? Will the mitigating and aggravating circumstances provided by the Revised Penal Code be applicable? There appears to be no references to mitigating and aggravating circumstances so my opinion is these may not be applicable.

(To be continued)

Notes on the new Anti-Terrorism Law

On March 6, 2007, Pres. Gloria Macapagal Arroyo signed the landmark legislation on terrorism, known as REPUBLIC ACT NO. 9372, AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM (hereinafter, "RA 9372" or the "Anti-Terrorism Law"). Media reports have it that various civic groups are preparing to challenge its constitutionality before the Supreme Court even as businessmen and international allies of the Philippines hail its passage. Indeed, RA 9372 appears to be a controversial piece of legislation as the law attempts to empower state agents by allowing legal intrusions into private communications, bank accounts, and personal liberties in order to curb the growing menace of terrorism. Thus, the challenge to the Supreme Court is to determine whether these legal intrusions are sanctioned by the 1987 Constitution.

While the national security agents and the human rights activists prepare for the case to be filed before the Supreme Court, we will attempt to comprehend this law and see how it will affect our lives. What follows is my notes and analysis based on my own reading of the law.


I. The Anti-Terrorism Law is composed of 62 sections, which could be divided into five divisions:

A. Terrorism, definition and principles

1. Declaration of Policy (Sec. 2)
2. Definition of Terrorism (Sec. 3)
3. Definition of Persons Liable (Sec. 4,5 and 6)
4. Proscription of Terrorist Organizations, etc. (Sec 17)

B. Legal Intrusions to Private Rights

1. Surveillance of Private Communications (Sec. 7 to 16)
2. Detention of terrorists (Sec. 18 to 25 and Sec. 44)
3. Restrictions to Travel (Sec. 26)
4. Examination of bank accounts, etc. (Sec. 27 to 43)

C. Special Rules and Principles

1. Immunity of government witnesses (Sec. 45)
2. Illegal use of Classified Material (sec. 46)
3. Remedial procedures and principles applicable to terrorism (Sec. 47- 52)
4. Special provisions on extraordinary rendition (Sec. 57) and extra-territoriality Sec. 58),

D. Administrative Bodies on Terrorism

1. The Anti-terrorism council and the role of other government agencies (Sec. 53-56 and Sec. 59)

E. Effectivity provisions

1. Effectivity clauses (Sec. 60-62)

As can be seen from the scope of the law, it appears to be comprehensive. It's almost like a codification of the powers of the state against terrorism and the rights of individuals against the abuse in the use of these powers. In addition, the law also provided for detailed procedures on how the state may exercise these powers, i.e., the legal intrusions to private rights, including penalties for failure to comply with them.


II. The law declares its underlying principles in Section 2 as follows:

SEC. 2. Declaration of Policy. – It is declared a policy of the State to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.

In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the constitution.

The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military, and legal means duly taking into account the root causes of terrorism without acknowledging these as justifications for terrorist and/or criminal activities. Such measures shall include conflict management and post-conflict peace-building, addressing the roots of conflict by building state capacity and promoting equitable economic development.

Nothing in this Act shall be interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the government. It is to be understood, however, that the exercise of the constitutionally recognized powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times.

From the wording of the above declaration of principles, already one can tell the tension between the state policy against terrorism and the policy to uphold civil liberties. As one reads the rest of the law, it is easy to notice that for every power granted to the state to curb terrorism under this law, the law also provides for a means to temper this power. It is a duality that pervades the entire law, and one wonders whether the decision to craft the law in this manner will actually achieve anything for the survival of the state. Nonetheless, the message appears to be very clear that the law cannot be abused to serve the ends of those in control of the government to stop their enemies in the guise of stopping terrorism.



III. The law then defines terrorism in Section 3 as follows:

SEC. 3. Terrorism. – Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d‘Etat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,

or under

1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

The definition can be broken down into the following elements:

1. Violation of any penal law enumerated above
2. Sowing and creating a condition of widespread and extraordinary fear and panic among the populace
3. For the purpose of coercing the government to give in to an unlawful demand.

The first element tells us that Terrorism is not exactly a new crime. To be liable under it, the criminal should at least commit one of the following: Piracy in General and Mutiny in the High Seas or in the Philippine Waters), Rebellion or Insurrection, Coup d‘Etat, Murder, Kidnapping and Serious Illegal Detention, Crimes Involving Destruction, Arson, Violation of Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990, Violation of Atomic Energy Regulatory and Liability Act of 1968, Hijacking, Piracy and Highway Robbery, and Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives.

Absent from the above enumeration is the crime of rape. So a group of terrorists who resolve to rape women in an entire village will not be liable under this law but only for the crime of rape.

The second element in the definition, "sowing and creating a condition of widespread and extraordinary fear and panic among the populace" appears to be the heart of the definition of terrorism. Thus, without sowing and creating a condition of widespread and extraordinary ear and panic among the populace, the crime is not consummated. Yet, the words "widespread and extraordinary" fear and panic are suspect. Exactly how widespread and how extraordinary has the fear and panic should be for the crime to be considered as terrorism? If for example the target of the terrorism is just a barangay in a remote town in Mindoro where there are barely a hundred people living, would that be considered widespread? Further, extra-ordinary fear means the kind of fear that is not normally created by an attack. Yet isn't fear itself extraordinary? So I cannot imagine a situation where extra-ordinary fear is created. Atty. Romeo Capulong will have a grand time burrowing holes on this part of the definition of terrorism.

The third element -- "For the purpose of coercing the government to give in to an unlawful demand" -- is also problematic, because of the word "unlawful". The term simply admits a lot of interpretation. If, for example, a group of terrorists are held for committing any of the crimes above, but they say that they are doing it to demand the resignation of Gloria Arroyo, whom they believe is only a de facto President, is the crime terrorism committed? What if the demand is to enforce the rights of a farmer beneficiary of the land reform program to be installed in the farm awarded to the farmer? Further, when a case like this goes to trial, how can the prosecution prove the objectives of the terrorists? What if this is not disclosed by the terrorist group?

A PCIJ blog entry on the signing of the law cites that civil libertarians fear that the definition is too broad that it may even render people power as an act of terrorism. While I agree it is too broad, I don't think this is a bad thing for civil liberties, because indeed it is too broad that the state may find it impossible to convict any one under this law.


(To be continued)

Say it isn't so, Nani!

My teachers at the Ateneo School of Law used to tell us stories of how their teacher, former Secretary of Justice Hernando "Nani" Perez, made their Negotiable Instruments Law class exciting. He made his students sing the provisions of the Negotiable Insturments Law, undoubtedy the most boring law in any jurisdiction, to the tune of "Lupang Hinirang". I am quite uncertain whether the story is true, but I've heard the story many times, and what it conjured in my mind was that Nani Perez had originality as a law professor.

During the impeachment trial of Erap Estrada, I watched Nani Perez conduct the direct examination of star witness Edgardo Espiritu who testified on Erap's friendship with the smugglers. I have always told my students and my associates that you can tell whether a lawyer is good by the way he conducts a direct examination. In the hands of master of direct examination, anyone who has a testimony can have a compelling testimony. When I saw Nani Perez and his direct examination of Secretary Espiritu, I knew immediately that Nani was a master. The phrasing and chronology of the questions, the manner of questioning, and the inflections in the tone of the his voice, he played them all well, and the result was a superb work I don't normally see in the courtroom. Thus, when the impeachment trial came to an abrupt end with the prosecutors walking out, I was disheartened that the good work of the prosecutors have gone to waste. No one would really know who won that Erap Impeachment case.

Subsequent events led to Erap eventually getting removed from office. Nani Perez would figure in the picture as one of the negotiators of the Gloria Macapagal camp. I heard him on TV saying how he tried to convince then Sec. Edgardo Angara for Erap to leave Malacanang peacefully because the hotheads among the people in EDSA could no longer be kept from storming the Palace where Erap was holed up.

When Gloria assumed office, and appointed Nani Perez as Secretary of Justice, I thought the it was a wise decision. Nani, with his reputation and good showing during the immpeachment of Erap, was a perfect match for the Department of Justice. He gave the office prestige and credibility.

Yet, now with the headlines screaming that the Ombudsman have found enough evidence to indict Nani Perez in court for a U$2 Million extortion case against Mark Gimenez, complete with bank documents, dummies and all, the whole thing appears to be a farce.
The worst part is the incident happened barely a month after EDSA DOS. Thus, it's no longer just about Nani Perez, Secretary of Justice-turned Accused, but the entire EDSA DOS episode in the history of this country. Nani's indictment shatters whatever is left of the myth that the people who replaced the scandal-ridden Presidency of Erap Estrada were the good guys.

I'm shaking my head as I type this entry. It can't be true. Say it isn't so Mr. Nani Perez. Say it isn't so.

It's always a sad day when myths are shattered.

But on second thought, at least, when we tell our grandchildren about the history of EDSA DOS, we could say it compares well with a John Le Carre thriller.

Happy New Year to all!

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?