SC round-up Jan 22-25 2010

The judiciary.gov.ph site is down this morning, so we turned to the lawphil.net servers, which fortunately are updated on Supreme Court decisions.

The Supreme Court paves the way for the construction of a 85-story Skycity condominium building in Ortigas Ave., cor, EDSA Greenhills, San Juan as it overrules the objections of Greenhills East Association, Inc. The Court says,

The Court cannot find fault in HLURB’s assertion that the real test of whether a land use serves the need of a district is not in the size or height of the buildings but in the sufficiency or surplus of the business or human activities in a given district to which they cater. Land use is affected by the intensity of such activities. Extraordinary population density or overcrowding, brought about by competition for space in the scarce area of the district, is to be avoided. Using this test, the HLURB, which is the clearing house for efficient land use, found no clear showing that respondent EGI’s project if finished would cause havoc in the population level of the land district where the project lies.

What is more, the houses of petitioner GEA’s members are separated by fence and guarded gates from the adjacent areas outside their subdivision. Their exclusiveness amply protects their yen for greater space than the rest of the people of the metropolis outside their enclave can hope for. Respondent EGI’s project offers no threat to the subdivision’s privacy.1avvphil It is on the other side of the fence, wholly unconnected to the workings within the subdivision. The new building would be in the stream of human traffic that passes EDSA and Ortigas Avenue. Consequently, it would largely attract people whose primary activities connect to those wide avenues. It would seem unreasonable for petitioner GEA to dictate on property owners outside their gates how they should use their lands if such use is not in contravention of law.

In another housing law matter, the Court rules that the office of the public prosecutor and the trial court have jurisdiction over criminal actions for violation of P.D. 957; and declares that HLURB’s subsequent issuance to a developer of a license to sell did not extinguish his criminal liability for selling subdivision lots prior to the issuance of such license.

In an ejectment case, the Court agrees with the Court of Appeals on the issue of recalling a writ of possession after the PNB, who applied for it, failed to renew its leasehold right over the subject property, a two hectare lot in Binondo Manila.

The Court also restores the tenants of a farm in Urdaneta Pangasinan after the tenants signed away their tenancy rights for Php 3,000. The Court says,

"...tenancy relations cannot be bargained away except for the strong reasons provided by law which must be convincingly shown by evidence in line with the State's policy of achieving a dignified existence for the small farmers free from pernicious institutional restraints and practices."

In criminal law, the Court applies the chain of custody rule in acquitting a drug suspect.

In taxation, the Courtdeclares that credit cooperatives are not liable for withholding taxes on interest from the savings and time deposits of its members and rules in favor of the Municiplaity of Pagbilao and the Province of Quezon over NAPOCOR's claims of exemption from real property taxes for the reason, among others, that NAPOCOR failed to pay under protest before lodging an appeal with the Local Board of Assessment Appeals.

In political law, the Supreme Court, through Justice Antonio Carpio shoots down the law creating a new legislative district of the City of Malolos. Justice Roberto Abad dissents.

On the side issue of legal ethics, the Court looks with disfavor on the lawyer who managed to delay the proceedings for the take over of his foreclosed home by GSIS and asks the Integrated bar of the Philippines to initiate disciplinary action on him.

Lastly, the Supreme Court agrees with the Court of Appeals that the principal is not bound by the real estate mortgage executed by the authorized agent in her own name without indicating the principal, but nonetheless, reverses the Court of Appeals on the ground that the principal slept on his rights. Said the Supreme Court,

Notwithstanding the nullity of the real estate mortgage executed by Tabing and her husband, we find that the equity principle of laches is applicable in the instant case. Laches is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. Its essential elements are: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of; (2) delay in asserting complainant’s right after he had knowledge of the defendant’s conduct and after he has an opportunity to sue; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant.

There is no absolute rule on what constitutes laches. It is a creation of equity and applied not really to penalize neglect or sleeping upon one’s rights but rather to avoid recognizing a right when to do so would result in a clearly inequitable situation. The question of laches, we said, is addressed to the sound discretion of the court and each case must be decided according to its particular circumstances. Verily, in a number of cases, it had been held that laches, the essence of which is the neglect to assert a right over a long period of time, may prevent recovery of a titled property.

In the present case, records clearly show that respondents could have filed an action to annul the mortgage on their properties, but for unexplained reasons, they failed to do so. They only questioned the loan and mortgage transactions in December 1996, or after the lapse of more than five (5) years from the date of the foreclosure sale. It bears noting that the real estate mortgage was registered and annotated on the titles of respondents, and the latter were even informed of the extrajudicial foreclosure and the scheduled auction. Instead of impugning the real estate mortgage and opposing the scheduled public auction, respondents’ lawyer wrote a letter to petitioner and merely asked that the scheduled auction be postponed to a later date. Even after five (5) years, respondents still failed to oppose the foreclosure and the subsequent transfer of titles to petitioner when their agent, Tabing, acting in behalf of Cayetano, sent a letter proposing to buy back the properties. It was only when the negotiations failed that respondents filed the instant case. Clearly, respondents slept on their rights.

Supreme Court harvest of January 21, 2010

Fourteen decisions highlight the Supreme Court's day on January 21, 2010 with rulings on various topics.

On taxation, the Supreme Court discusses the effects of the BIR'sVoluntary Assessment Program and the Commissioner's futile attempt to avoid it in a case against a taxpayer who failed to file income tax returns. The Court also ruled that a taxpayer failed to file an appeal on time with Court of Tax Appeals and resolved the issue of the tax liabilities of pawnshops for VAT and Documentary Stamps Tax on pawn tickets

On immigration, the Court rules on
the deportation of an undocumented Korean.

In criminal law, the Court declares that an affidavit of desistance failed to obtain the intended results in this case for frustrated murder, while it affirms conviction of a man who raped his stepdaughter . In another rape case, the Court denies the appeal of a rapist who employed the "sweetheart defense".

The Supreme Court outlines the circumstances that will merit execution pending appeal, and considers piercing the veil of corporate fiction in resolving a case regarding the lease of a property in Tagaytay for 90 years.

In civil law, the Court upholds the extinction of the easement of right of way upon consolidation in one person of the ownership of the dominant and the servient estates. while discussing the Parole Evidence rule on the same case.

A slew of technical errors in a summary judgment case forces the Supreme Court to recite the classic mantras on technicalities.

In the field of labor law, the Court grants the claims for total disability of a sea farer who suffered a stroke, but was certified by the company physician as fit to work more than five months after. The Court also sides with labor on the issue of constructive dismissal by an employee who tendered a resignation letter.

Most interesting is how the Supreme Court berates ABS-CBN in a labor case in a manner that will not be written in the news,

The termination of employment of the four drivers occurred under highly questionable circumstances and with plain and unadulterated bad faith.

The records show that the regularization case was in fact the root of the resulting bad faith as this case gave rise and led to the dismissal case. First, the regularization case was filed leading to the labor arbiter’s decision declaring the petitioners, including Fulache, Jabonero, Castillo and Lagunzad, to be regular employees. ABS-CBN appealed the decision and maintained its position that the petitioners were independent contractors.

In the course of this appeal, ABS-CBN took matters into its own hands and terminated the petitioners’ services, clearly disregarding its own appeal then pending with the NLRC. Notably, this appeal posited that the petitioners were not employees (whose services therefore could be terminated through dismissal under the Labor Code); they were independent contractors whose services could be terminated at will, subject only to the terms of their contracts. To justify the termination of service, the company cited redundancy as its authorized cause but offered no justificatory supporting evidence. It merely claimed that it was contracting out the petitioners’ activities in the exercise of its management prerogative.

ABS-CBN’s intent, of course, based on the records, was to transfer the petitioners and their activities to a service contractor without paying any attention to the requirements of our labor laws; hence, ABS-CBN dismissed the petitioners when they refused to sign up with the service contractor. In this manner, ABS-CBN fell into a downward spiral of irreconcilable legal positions, all undertaken in the hope of saving itself from the decision declaring its “talents” to be regular employees.

By doing all these, ABS-CBN forgot labor law and its realities.

It forgot that by claiming redundancy as authorized cause for dismissal, it impliedly admitted that the petitioners were regular employees whose services, by law, can only be terminated for the just and authorized causes defined under the Labor Code.

Likewise ABS-CBN forgot that it had an existing CBA with a union, which agreement must be respected in any move affecting the security of tenure of affected employees; otherwise, it ran the risk of committing unfair labor practice – both a criminal and an administrative offense. It similarly forgot that an exercise of management prerogative can be valid only if it is undertaken in good faith and with no intent to defeat or circumvent the rights of its employees under the laws or under valid agreements.

Lastly, it forgot that there was a standing labor arbiter’s decision that, while not yet final because of its own pending appeal, cannot simply be disregarded. By implementing the dismissal action at the time the labor arbiter’s ruling was under review, the company unilaterally negated the effects of the labor arbiter’s ruling while at the same time appealling the same ruling to the NLRC. This unilateral move is a direct affront to the NLRC’s authority and an abuse of the appeal process.

All these go to show that ABS-CBN acted with patent bad faith. A close parallel we can draw to characterize this bad faith is the prohibition against forum-shopping under the Rules of Court. In forum-shopping, the Rules characterize as bad faith the act of filing similar and repetitive actions for the same cause with the intent of somehow finding a favorable ruling in one of the actions filed. ABS-CBN’s actions in the two cases, as described above, are of the same character, since its obvious intent was to defeat and render useless, in a roundabout way and other than through the appeal it had taken, the labor arbiter’s decision in the regularization case. Forum-shopping is penalized by the dismissal of the actions involved. The penalty against ABS-CBN for its bad faith in the present case should be no less.

The errors and omissions do not belong to ABS-CBN alone. The labor arbiter himself who handled both cases did not see the totality of the company’s actions for what they were. He appeared to have blindly allowed what he granted the petitioners with his left hand, to be taken away with his right hand, unmindful that the company already exhibited a badge of bad faith in seeking to terminate the services of the petitioners whose regular status had just been recognized. He should have recognized the bad faith from the timing alone of ABS-CBN’s conscious and purposeful moves to secure the ultimate aim of avoiding the regularization of its so-called “talents.”

The NLRC, for its part, initially recognized the presence of bad faith when it originally ruled that:

While notice has been made to the employees whose positions were declared redundant, the element of good faith in abolishing the positions of the complainants appear to be wanting. In fact, it remains undisputed that herein complainants were terminated when they refused to sign an employment contract with Able Services which would make them appear as employees of the agency and not of ABS-CBN. Such act by itself clearly demonstrates bad faith on the part of the respondent in carrying out the company’s redundancy program x x x.

On motion for reconsideration by both parties, the NLRC reiterated its “pronouncement that complainants were illegally terminated as extensively discussed in our Joint Decision dated December 15, 2004.” Yet, in an inexplicable turnaround, it reconsidered its joint decision and reinstated not only the labor arbiter’s decision of January 17, 2002 in the regularization case, but also his illegal dismissal decision of April 21, 2003. Thus, the NLRC joined the labor arbiter in his error that we cannot but characterize as grave abuse of discretion.

The Court cannot leave unchecked the labor tribunals’ patent grave abuse of discretion that resulted, without doubt, in a grave injustice to the petitioners who were claiming regular employment status and were unceremoniously deprived of their employment soon after their regular status was recognized. Unfortunately, the CA failed to detect the labor tribunals’ gross errors in the disposition of the dismissal issue. Thus, the CA itself joined the same errors the labor tribunals committed.

The injustice committed on the petitioners/drivers requires rectification. Their dismissal was not only unjust and in bad faith as the above discussions abundantly show. The bad faith in ABS-CBN’s move toward its illegitimate goal was not even hidden; it dismissed the petitioners – already recognized as regular employees – for refusing to sign up with its service contractor. Thus, from every perspective, the petitioners were illegally dismissed.

By law, illegally dismissed employees are entitled to reinstatement without loss of seniority rights and other privileges and to full backwages, inclusive of allowances, and to other benefits or their monetary equivalent from the time their compensation was withheld from them up to the time of their actual reinstatement. The four dismissed drivers deserve no less.

Moreover, they are also entitled to moral damages since their dismissal was attended by bad faith.For having been compelled to litigate and to incur expenses to protect their rights and interest, the petitioners are likewise entitled to attorney’s fees.

Nuisance candidates on election day

One of the more relevant decisions by the Supreme Court issued in January this year is the case of the nuisance candidate who managed to hang on to the list of legitimate candidates until a month after election day. The winning margin is only 104 votes and the nuisance candidate managed to invalidate 5,401 votes. Tough luck for the legitimate candidate. The facts of the case are as follows:

In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same position.

On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate.However, the Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or almost one (1) month after the elections.

On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes, or a difference of one hundred four (104) votes.

Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of Cebu.

The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same surname.

Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative.

In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised by protestant and protestee applying the rules for appreciation of ballots. The Tribunal recognized as most crucial the issue of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative should be counted in favor of Martinez. Thus, the election protest "will rise or fall on how the Tribunal [appreciates said] ballots."[6]

Ruling on the issue, the House of Representatives Electoral Tribunal upheld Salimbangon and considered the ballots as stray in accordance with Sec. 211 (1) of the Omnibus Election Code which provides:

"Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office."

Since the name of Edilito C. Martinez was still included in the official list of candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the line for Representative were properly denied on the ground that there was no way of determining the real intention of the voter. These ballots were included in the 7,544 ballots denied as votes for Martinez in 961 precincts.

What then is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections? Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or counted in favor of the bona fide candidate?

The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. Election contests, therefore, involve the adjudication not only of private and pecuniary interests of rival candidates, but also of paramount public interest considering the need to dispel uncertainty over the real choice of the electorate.

In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of confusion which the similarity of surnames of two (2) candidates may generate. A nuisance candidate is thus defined as one who, based on the attendant circumstances, has no bona fide intention to run for the office for which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them.

We therefore hold that ballots indicating only the similar surname of two (2) candidates for the same position may, in appropriate cases, be counted in favor of the bona fide candidate and not considered stray, even if the other candidate was declared a nuisance candidate by final judgment after the elections. Accordingly, the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving him a total of 72,056 votes as against 67,108 total votes of private respondent. Petitioner thus garnered more votes than private respondent with a winning margin of 4,948 votes.

COMMENT:

In the original text of this case, the SC castigated the COMELEC for its inefficiency in failing to resolve the issue of the nuisance candidate before the election. Shouldn't there be a law penalizing nuisance candidates?

UPDATE:

Speaker Nograles refuses to allow Martinez to take his congressional seat, even as there are only three days before Congress adjourns.

A case of malicious prosecution?

As a follow-up to the Supreme Court Round-up as of January 20, 2010, a discussion of one interesting case regarding recovery of damages for malicious prosecution would be in order.

In this case, the City of Olongapo charged a hotel owner with the (a) theft of electrical current punished under Presidential Decree (P.D.) 401; and (b) disengaging and tampering with his electric meter’s potential link, thereby resulting to a zero-zero power consumption in violation of City Ordinance 23, series of 1989, and P.D. 401.

After the preliminary investigation, the state prosecutor issued a resolution, dismissing the complaints for insufficiency of evidence. On appeal, however, the Acting Secretary of Justice modified the State Prosecutor’s resolution and directed the filing of the corresponding information for theft of electricity against petitioner Tiu. Subsequently, however, the Secretary of Justice reconsidered and ordered instead the withdrawal of any information that might in the meantime have been filed in court. When the matter was elevated to the Court of Appeals (CA) and, ultimately, to the Supreme Court, both courts affirmed the dismissal of the City’s complaints against the hotel owner.

Claiming that he suffered mental anguish, serious anxiety, besmirched reputation, wounded feelings, moral shock and social humiliation and that the hotel suffered loss of business goodwill, financial reverses, and injured reputation, the owner and the hotel both filed an action for damages against the City for having filed a malicious and unfounded charge of theft of electricity against them.

The Regional Trial Court dismissed the case, which was affirmed by the Court of Appeals.

On appeal the Supreme Court said that in order to establish a case for malicious prosecution, the hotel and the hotel owner must prove the following elements: (1) that the respondent City had caused their prosecution; (2) that the criminal action ended in their acquittal; (3) that, in bringing the action, the City had no probable cause; and (4) that it was impelled by legal malice—an improper or a sinister motive. Both parties concede that the first two elements were present in this case. What needs to be determined is whether or not petitioners have proved the last two elements.

The respondent City did not concoct out of thin air the criminal charge for theft of electricity against petitioners. It filed the case based on the result of an investigation carried out at petitioner’s premises which indicated a tampering of the electric meter. Indeed, petitioners never claimed that the inspection of petitioner's premises was just a farce. The City did not merely conjure the charge with the intention of vexing petitioners. It acted within its right to bring up the result of that investigation to the authorities for evaluation and resolution.

Finally, no evidence was shown that there had been bad blood between respondent City and petitioners prior to the filing of the criminal charge, which circumstance if present could justify a malicious motive in filing the charge. Resort to judicial processes, by itself, is not an evidence of ill will which would automatically make the complainant liable for malicious prosecution. Otherwise, peaceful recourse to the courts will be greatly discouraged and the exercise of one’s right to litigate would become meaningless and empty.

Even if the Court were to concede that the City branded petitioners as thieves, asked the people not to patronize their business, and had been overly zealous in pursuing the criminal complaint that it filed, these are not the legal malice contemplated in suits for malicious prosecution as the determining factor is evil motive in bringing the action, not the acts exhibited by the complainant after the case had been filed.

COMMENT:

Bad faith is the foundation for this kind of case for damages. Considering that the complainant is the City Government of Olongapo, which is a government instrumentality, it could easily rely on the presumption of regularity of its conduct in the filing of those cases of Theft of Electricity. Thus, in spite of having lost its criminal cases, the City has a strong defense against a counter-charge for malicious prosecution.

It would be interesting to note, however, if this case would prosper before the Ombudsman against the officials involved under Sec. 3 (e) R.A. 3019, which punishes officials for "...(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence..."

The Supreme Court Round Up as of January 20, 2010

The Supreme Court decided three election cases early this January concerning the following matters:

1. The effect of deficiency in docket fees in a COMELEC appeal.

2. What happens to a nuisance candidate's votes after he is declared as nuisance beyond election day.

3, Requisites of execution pending appeal in local election protests.

The SC also ruled on the jurisdiction of the DARAB which hinges on tenancy relations.

The Court rendered some key passages in a ruling on forgery in a deed of sale of land, the effect of mis-joinder and non-joinder of parties, mistake of counsel, fraud in consummating a contract of sale and undervaluation of the sale of real property to defraud the BIR.

The court also made pronouncements on misreading terms of an extra-judicial settlement and that mandamus will not be issued to compel the production of a will.

The Court ruled on how the government bungled a drugs buy bust case and how it succeeded in another.

The Court fined two judges for delay, PHP 11,000 for one and PHP 20,000 for another and dismissed court personnel for tampering with evidence.

Court reiterated previous rulings on forum shopping and receivership http://tinyurl.com/yjktvag and made pronouncements on liquidator's fees.

It also ordered the reduction of excessive penalty and other charges by a bank in a foreclosure proceeding.

On the Civil Service, the Court awarded damages to a Customs official for her superior's actions in preventing her from doing assigned tasks and for not allowing her to get official recognition. In another case, the Supreme Court reversed the Court of Appeals on the qualifications of a civil service employee.

The Court outlined the requisites for awarding damages in an action for malicious prosecution.

In Criminal Law, the Court affirmed doctrines on corpus delicti and extra-judicial confessions, and several points on rape here here, and here.

Noteworthy is this murder case with bizarre twists and turns.

Equally noteworthy is a ruling that almost ruled that an unauthenticated fax from abroad is sufficient to establish probable cause for Estafa. But, SC said that judges should be thorough in dismissing a case on the recommendation of the Secretary of Justice and remanded the case for proper determination of probable cause by the judge.

Happy New Year to All

09 was such a drag. Here's to a better year ahead, 2010. I will be hanging around the twitter page more often this year. See you around.

Test post from a Blackberry Bold

The first duty of society is JUSTICE. -- Alexander Hamilton
"Sent via BlackBerry from Smart"

Day Two in Cotabato: Instant coffee is dirty water with sugar

1. Ces has an aunt who told me a little story about Kapeng Barako from Batangas. She said when she was young, coffee was Kapeng Barako, the type one buys from the market, which is real dried coffee beans and ground with the manual grinder. This coffee is then packed in cellophanes and sold in centavo denominations. Coffee is then boiled in a coffee kettle and served the whole day, not just breakfast. Fast forward years after with the advent of instant coffee. With massive advertising, people were deceived into believing that instant coffee is better than Kapeng Barako. She remembered that they stopped serving Kapeng Barako to guests in their house, and started serving instant coffee, because they thought Kapeng Barako was inferior and should not be served to well-meaning guests. For many years, this is what she believed until she went abroad and lived in the United States when her guests became offended every time she served instant coffee. Then she realized Kapeng Barako is better than instant. Why am I saying this?

I woke up at 6 am and had my first Cotabato shower. I didn't use the heater, because I was uncertain about the inn's eletrical connections. Surprisingly, the water pressure was strong. The water felt great. I wondered how they treat the water and whether the water was ground or surface water. Then, I went down to the cafe after and ordered coffee. Whoa! They gave me Nescafe 3 in 1. Que horror! I told myself next time I vow to bring my own French press and my own brew. I am now being assaulted by a multinational which has managed to convince this country that its great coffee tradition is inferior to Nescafe Classic, thanks but no thanks to advertising and payolas.

But alas, I have to give it a try. I took a sip and made my verdict. This thing tastes like burnt corn! Reading its package reveals that its ingredients are "sugar creamer (contains milk proteins) natural and artificial flavors artificial sweetener and NESCAFE CLASSIC". What is in Nescafe Classic? Why didn't they reveal it in the label? This is not coffee. It's probably a mixture of the cheapest and most inferior coffee beans and burnt Boy Bawangs. Better to say it's dirty water with sugar.



2. The Task Force has a clean and wide office inside the ARMM compound. Curiously, Cotabato City is not part of the Autonomous Region of Muslim Mindanao (ARMM) even as the seat of government of the ARMM is in the City. JC said part of the compound, particularly the auditing and accounting offices, have caught fire mostly due to "faulty electrical wiring". That is interesting, but I have a hunch the fires were caused not by faulty electrical wiring but some finance officer trying to burn an audit trail. Of course, I could be wrong. The meeting wenton uneventfully, but for the fact that again, I have been served Nescafe 3 in 1. I told myself is the the official coffee of Cotabato City? I asked JC if there's a way he could score me a brewed up? He muttered something to the secretary and after an hour, I had my first real coffee in Cotabato. My day is made.



3. We went to the Lourdes Grotto site which is maintained by OMI priests. The place looks like a forest sanctuary. tall trees and vines. They have the stations of the cross all over the compound. It must be a fine place to reflect during Holy Week. JC said unfortunately it has been a favorite dating place for young Muslim lovers. I noticed he was right, because there were about six young couples dating in the picnic area. I couldn't tell if they were Muslims though.



4. I went up the grotto looked at the stoneworks around the image. It's marvelous. I prayed a decade of the rosary because I didn't want to stall JC. By the way last night there was an EWTN preacher who said that we should pray the three mysteries of the rosary because the Pope does so. Being busy is not an excuse because he said nobody could be busier than the Pope.



5. While leaving the grotto, we were met by Fr. Dick Pomier. My friend JC who knows him from way back introduced me as the legal counsel fo the Task Force. Fr. Dick had kind words for the Task Force and he said he was impressed by the presentation of the Archbishop who heads the Task Force. Then, he talked about his frustrations on his proposal to have a water theme park in Cotabato and griped about the commercial complex that was built instead of the theme park. "Who wants to go there? They're selling the same things in that commercial area that they're selling in the downtown area." We bid him goodbye and he sent his regards to our boss.

6. We went to the Pedro Colina Hill (PC Hill) JC said it affords a great view of the city. The road to the top of the hill is spiraling up, but the view is blocked by tall grass and wayward shrubs. The place is poorly kept. When we got to the top, it said that the place is restricted. So we had to go down the same way, although glimpses of the Cotabato City coastline would show up in between the shrubs now and then.

7. On the way back to the inn, we passed by the entrance of the Kutawato caves. It's closed. JC said it has become a haven for drug users and dealers, so the government decided to shut it down. The cave is actually beneath the PC Hill. He said inside the cave, Japanese artifacts from World War II could be found , rusty guns bullets, helmets etc. It is also inhabited by snakes and bats. He said a Norwegian mountaneering group tried once to explore the cave, but they had to stop before they could actually explore it fully. They said the cave has to be cleaned for it to be opened to the public. That's just too bad because the city took its name from the caves. if the cavees are unkept, it somehow mirrors how the city treats itself. I told JC we should make the government of Cotabato City approve an ordinance to make the Kutawato caves a national park. It would surely attract attention from the Indiana Joneses among us.

8. I bought same mats, malong, and shawls for Ces. JC said I should also bring some durian, the foul smelling delicious fruit. I wanted to beg off on the durian, but JC said it's a must.

9. I asked JC, where am I likely to get mugged, Quiapo or Cotabato City? He said Quiapo. Ok, that sounded very re-assuring.

Day One in Cotabato: All that be can said or Crackberry in Cotabato

1. I remember my former teacher, Fr. Roque Ferriols, S.J. who used to mock tourists who visit a place once and go around telling every one afterwards that they have known everything about the place. The danger really is for me to feel and for people to believe that these notes are complete and accurate. Of course, that is hardly the intention in this enterprise. No one will ever have the complete notes about this wonderful city. Chuang Tsu, right? When everything that could be said has been said, the most important things have still not been said. So, what gives? Let's just say these notes are about travelling to Cotabato City on a Blackberry.

2. On the approach to the runway, the airplane flew near a large mountain which looked spectacular on the plane. I also saw an island which looked like a mini-Negros Island. I learned later that the mountain is called Tuldok Mamot, and the island is Bongo. I haven't been this thrilled landing on an airport since my last trip to Legazpi City when the pilot treated us to a crater view of the majestic Mt. Mayon.

We landed at Lawang airport at around 1:40pm. It's just one runway and a one storey structure but it looks very clean. There is one conveyor belt that waits for the baggages to be unloaded and distributed among the passengers. It really reminds me of the Legazpi City airport, although Legazpi's airport does not even have a conveyor belt.




3. My friend JC who comes from this place took me to a local inn Azolea Pension House, about 20 mins from the airport. He annotated the views on the way to the hotel. I learned that the airport is within the camp of the 16th Infantry Brigade, which explains the two armored personnel carriers (APCs) that I saw around the airport. A nice middle aged lady told me that they are like toys to them because they often see them roaming the city. We took the main road and got to Tamuntaka Bridge. JC said the bridge is often the sight of ambushes and kidnappings, which explains the police checkpoint before the bridge. Then JC pointed to a gated house (pretty large gate actually) and he said the owner there had so much money. One day it was attacked by robbers who killed everyone inside it. I hope he was kidding. I saw signs which said Lourdes grotto. I learned later that they have a replica here of the Lourdes Grotto in France. We passed by the Archbishop's palace and the large and beautifully designed City Hall. The lady told me, however, that it's only beautiful from the outside, which made me wonder what is inside that building.


4. When we got to the inn, I had a lunch of porkchops, rice and Coke. I went online using a bluetooth connection between my VAIO P and the E63. The connection was pretty sturdy as Ces and I managed to talk on video mode for about an hour with minimal interference.


5. Thereafter, JC took me around the city on a pick up. I noticed the big houses looked like fortresses with guardhouses on top of their walls. JC said you can tell that they're houses of politicians because of their fortifications. I saw a Mcdonald's branch near a church. JC said a grenade was hurled their once killing some faithful who were hearing mass and damaging the Mcdonald's store in front of it. Then I saw Jollibee and a mall. When we were passing by the "Chinese" area, it was about 6:00 pm, the shops were already closed because the proprietors fear of getting kidnapped. Then, JC pointed me to Young's Theater, said to be the only theater in the city. It had a big sign in front, which said, "Stop Kidnapping", a pretty loud statement that is more like a cry for help to me.

6. Somebody suggested we eat in a restaurant called, "Peaches". But JC said it would be better if we just stay in the hotel and get somebody to cook crabs for us.Indeed, by 7:00 pm, JC knocked on my door. The crabs were being served on the cafe with Philippine salmon. They were delicious sea crabs, three large ones and several slices of juicy salmon. JC ate them as if they were the most ordinary things in the world. I ate my share quietly savoring the treat. I told myself I would bring some to Manila, when I return.

7. Before retiring to bed, I turned on EWTN channel on the tv. There was a replay of the Pope's mass for Africa. I decided to keep it on until I doze off to ward off the evil spirits. Nighty night in Cotabato City.

(To be continued)

Notes on a trip to Cotabato City

1. The flight is 12:10 pm. I packed clothes for three days and remembered to bring two red shirts for two nights to ward away evil spirits. Ces prepared the toiletries and they were good to go. The hardest part is choosing which books to bring. Since the last out of town trip, I have accumulated reading backlog of more than six months. Eventually I decided to bring NVM Gonzalez's Grammar of Dreams, Jimmy Abad's In Ordinary Time, Ricky de Ungria's Levitations, a couple of New Yorkers and Neil Gaiman's 1602. I decided to let go of Borges's Selected Non-Fiction because it was too thick. I've had these books for months, but my weekly routine keeps me away from them. Now, three days in the south will give me time to be with these kindred spirits.

I have been appointed as a member of the Bids and Awards Committee of a Presidential Task Force. The Committee will procure consulting services to solve the Mindanao flooding. The interesting fact is, the Task Force is based in Cotabato City. I have never been to that city and never imagined that I would go there once in my life. After getting ready with my baggage, I decided to update my Facebook status: "Preparing for a trip to Cotabato City. Hope to debunk the myth that it is no man's land."


2.When I got to the Centennial Terminal, I decided to have coffee and found a new airport concessionaire, Ya Kun Kaya Toast. The place claims that it has been serving coffee since 1944 in Singapore.



The menu looks unique, a bundle of coffee, French toast and two boiled eggs for Php 165, expensive but may be worth a try. Upon ordering, I was appalled that the counter girl asked whether I wanted condensed milk on my coffee. Que horror! The counter girl said it is the Singaporean coffee tradition. I told her I take coffee only black or with fresh milk. I looked around and found out that the choices were condensed milk, evaporated milk or black. I said I will settle for black.




After paying, I got an open table just outside the kiosk and then the coffee came with French toast and hard boiled eggs.



The food reminded of my childhood days, travelling from Mindoro to Manila. Boiled eggs were staple in those trips, because they were filling and easy to eat. I wondered though if this idea would work side by side with Starbucks or Coffee Bean and Tea Leaf. But the sight of the Starbuck types eating hard boiled eggs seems incredulous.


3. What types take the plane to Cotabato City? I looked around me on the queue to board the flight and everyone looks regular. A couple of Muslim ladies in their traditional headdress, family types with their little boys, a Caucasian with a sarong wrapped around his head wearing a black shirt which said something like www.kidsforpeacefoundation.org. I told myself, if this guy feels safe going to Catabato city on that shirt, it must be safe for everyone too.

The plane is cramped. I figured, if I had grown one more inch from my 5'6" frame, my knees would be crushed in between these seats. Time was when these Airbus 320's were spacious and comfortable. But the business types simply have the last word on airline comfort for passengers.

The plane moved to the runway before the 12:10 pm call time. But it had to stop there as there were three other planes about to take off, said the pilot. Weather is fine in Cotabato. We would be flying to an altitude of 29,000 feet, over San Jose Occidental Mindoro, Iloilo and then to Cotabato.

When the plane took off, I began reading Neil Gaiman's 1602. I felt a little spooked about the fact that the comic book started with the burning on the stake by a heretic. I asked myself is it a coincidence that I am reading this book on my way to Cotabato City where Christian and Muslim tensions have been well documented? It must be my mind creating thoughts, thoughts turning into words, the words turning to reality, and then back again. I remembered Manny O. who used to teach a subject in the Ateneo about religious conflict in the world. Manny reminds me of an old John Lennon song. Lennon could be right, you know? If you can imagine a society with no religion, there would be peace. Well, dogs have no religion.

Just when we were descending, the Mindanao western coastline showed itself to me in all its glorious splendor. The greenery is magnificent. I could see long stretches of forest lands coupled with a few patches of houses here and there. The land mass is way too large compared with the Visayan islands. It's hard to believe that this place that looks so peaceful from above has a violent reputation.

"Ayan dumating na tayo!" a delighted voice from behind me cheered. We've landed in Cotabato City.

(To be continued)

Demystifying the 2010 Automated Elections Problems, Prospects and Some Answers

SPEAKERS:

ATTY. SIXTO BRILLANTES
(Election Lawyer)

DEAN RUDYARD A. AVILA III
(Professor, Election Law, U.P. College of Law; Election Law Practitioner; Consultant, House of Representatives)

MR. RAMON “IKE” SENERES
(Former President, National Computer Center; Expert on Election Technology)

ATTY. PATRICK VELEZ, MNSA
(Election Law Practitioner; Consultant, COMELEC; Partner, Soriano & Velez Law Office; Author, MNSA Thesis on The 2008 ARMM Automated Elections)

October 24, 2009
8:30 am to 5:00 pm
Function Rooms D & E
Quezon City Sports Club
E. Rodriguez Sr. Ave., Quezon City


For registration, please contact:
Jen/Cecil at APVLAW – 584-5685/5683
http://seminars.apvlaw.net




DEMYSTIFYING the 2010 AUTOMATED ELECTIONS
Problems, Prospects and Some Answers

PROGRAM

MORNING

8:30 REGISTRATION

9:00 – 10:30 ATTY. SIXTO BRILLANTES
Changes in Election Law under the Automated Election System & PCOS: From Canvassing up to the Filing of Election Protests

10:30 – 12:30 DEAN RUDYARD A. AVILA III
Survey of Election Law Jurisprudence 2007-2009: Focus on Effects brought by the Automated Elections (PCOS)

NOON

12:30 – 1:30 Lunch

AFTERNOON

1:30 – 3:30 MR. RAMON “IKE” SENERES
Technology and Lawyers: Preparing for the Automated Elections, Understanding PCOS Technology and its Implications in Election Law

3:30 – 5:00 ATTY. PATRICK VELEZ, MNSA
Election Security and Technology for 2010

Techne as Strategy

Wikipedia defines techne, or techné, as distinguished from episteme, as

"etymologically derived from the Greek word τέχνη (Ancient Greek: IPA: [tékʰnεː], Modern Greek [ˈtexni] (help·info)) which is often translated as craftsmanship, craft, or art. It is the rational method involved in producing an object or accomplishing a goal or objective. The means of this method is through art. Techne resembles episteme in the implication of knowledge of principles, although techne differs in that its intent is making or doing, as opposed to "disinterested understanding."

I've often told my associates that getting things done means not just getting things done, but also getting things done in style. In the legal profession, legal work is more about method and form. Substance is something lawyers do not have enough control of; a witness can only testify on what he sees, which is a given. But, how that witness unravels his story is the stuff good lawyers are made of. Any person can draft a contract, but only lawyers can make a good contract, one that closes all loose openings where future law suits can germinate. It's all about style, form, and method.

Yet, style, form and method are not overnight creations. In a law office, style, form and method are products of experience. Law school simply does not provide these tools because it is an environment were beating the exams is the only game. Style, form and method are not measurable and nobody gets extra credit for them, except in real life.

The word techne loops it all in. It is the method of working while learning, and a learning that works. Work/Learn. Learn/Work. It never ends. It raises the bar of greatness for all time.

(To be continued)

Bech is dead! Long Live Bech!

I take time off today to say goodbye to John Updike. Until his death on January 27, 2009 of lung cancer, I considered him as the best living American writer. I have particular affection to his Henry Bech series, a body of short fiction about a Jewish writer whom Updike patterned after himself and various American authors. My copies of the Bech series are often with me in out-of-town trips. I've read them on airports, planes, seaports, ships, taxis, on the metrorail, everywhere where I can find time to read the stories over and over again.

Goodbye Updike. Bech is dead. Long Live Bech.

Ritual of the Word

(On the occasion of the blessing of APVLAW’s new office at the 31st F Atlanta Center 31 Annapolis St. Greenhills, San Juan)

When the partners and I went up this building in August this year, this place was a bare shell. No walls, no ceilings, no lights, but we had a spectacular view of the sun, sea and sky. Right there and then, we made a decision: APVLAW will hold office in this place.

At that time, the partners, Noel Punzalan, Steve Vehemente, Sonny Avila, Boyet del Prado and I did not know how and where to get the resources to build on this place. But we said the word, here, in this place, we will build our office. And God made the events conspire to make this day happen.

On the birthday of Mother Mary, September 8, 2008, APVLAW assisted our friends, who helped us get started way back in 2003 when APVLAW was just Aceron Law Office, JBY and JAB, in what is perhaps the biggest settlement in Philippine f-------- history. And may I say, we did not even have to send a demand letter to get what we wanted.

Of course, it was not enough. In October, I was contemplating on calling off the construction, but then our friends who supported us as far back as 2006, when APVLAW was Guerrero and Aceron Law Office, DNT and RGM, came to our rescue with a check and helped us complete the office.

And for that, we are forever indebted to these friends, JBY, JAB. DNT, RGM as well as our other friends who have been with us all these years. Thank you for your support. I always say we designed this office around the conference room to ensure that our friends and clients will always get the best view and the best seat.

I would like to mention, our partner in charge of physical plant, Steve Vehemente who took his title seriously and took a leave of absence from law practice for eight weeks to oversee the planning and building of this beautiful place. Thank you very much Steve, our work is not complete, but so far this has been excellent.

Today, December 18, 2008, marks the partial fulfillment of the words that the partners of APVLAW made in August this year. We said the word that here in this place we will build our new office and today we are now here. On behalf of the partners, let me now express what we want to do now that we’re here, and the task is at hand for us to complete.

Here, in this place, overlooking the sun, sea, and sky, we will keep the house of truth, justice, and love.

Here, in this place, facing the city that Quezon built, we will keep the brotherhood and honor among men.

Dito, sa bayan ng San Juan, pook ng Pinaglabanan, duyan ng magigiting na bayani, ipagtatanggol namin ang mga karapatan at papandayin ang kasaysayan ng bagong Pilipinas.

Here, in this place, beneath the moon and the stars, we will reach and renew our dreams, bring prosperity to our families, friends, our nation, and the world.

Here, in this place, underneath the great mountains and the clouds, we will bring glory to our families, glory to our nation, and glory to God.

December 18, 2008
Third Thursday of Advent

The Truth Behind the the "Tell the Truth" Incident at the Senate

Sometime on November 9, 2008, I dropped by for lunch at the Department of Agriculture ("DA") to greet Secretary Arthur C. Yap a "Happy Birthday". Art, is known to his stakeholders at the DA as "SACY" and known to me and my employees as "ACY". We have been working together on various capacities many years before he became Secretary of Agriculture. He has been a good friend. In November this year on his birthday, he told me to help out the Regional Directors of the DA, as JocJoc Bolante has arrived and the Senate is bound to call them for the continuation of the Fertilizer Scam Investigation.

Art's request was simple, "Retain lawyers to help the directors." Fee arrangements could be discussed but should not be an obstacle. I told him I was ready to help.

The directors present on that occasion asked me only one question, "Are you Bolante's lawyer too?" My response is of course, "No." We exchanged phone numbers and promised to call each other before the Senate investigation.

Thereafter, weeks before the Senate hearing, I signed up Atty. Gabby Enriquez, a veteran lawyer and my law partner, Atty. Sonny Avila, former Dean of Araullo Uoversity School of Law. Both worked together at Manalo Puno Law office and were members of the Sigma Rho Fraternity. They didn't ask about fees. When I mentioned the nature of the engagement, they said they were in, without asking for anything.

We didn't know how the Senate investigation would end up, but the clear strategy was make the directors comfortable and let them come up with the truth. The speculation was the directors were going to be involved in a cover-up. That is a stupid thing to do because the Commission on Audit (COA) had all the goods on Bolante and all the participants in this affair. Any attempt to cover up will only end up in a charge for "Perjury" or "Falsification".

During the Senate hearing, Senators Chiz Escudero, Alan Cayetano and Dick Gordon ganged up on Director Ric Oblena midway in the hearing. "Who ordered the change of the fund allocation for Kalibo, Aklan to an NGO?".

The manner of questioning was atrocious! It's the modern day Grand Inquisition with the Senators acting both as judge and inquisitor. In between questions, the Senators interjected threats, wisecracks, and other bullying tactics. The lawyers were helpless.

If this were a court hearing, I would have stood up to object, they were badgering the witness. But that was prohibited by the Senate rules. Then I looked at Dir. Oblena and wondered, the question appeared to be harmless. Why was he having a hard time?

I told Gabby to slip a note to remind Dir. Oblena it was pointless to withhold things. At first, Gabby didn't want to. I told him just do it. So Gabby took his business card and borrowed a pen from Dir. Roger Chio who was sitting in front. Gabby looked at me and I told him , "Tell the truth." On cue, Gabby scribbled the note, stood up, and gave it to Dir. Oblena.

Senator Gordon saw what happened and got irritated, a bit over-acting I suppose. He asked Gabby who he was. Who engaged him? He pointed to Sonny. We weren't prepared that our presence would be questioned, so I told Sonny to call me. I stood up and introduced myself.

Sen. Gordon asked who I worked for, "I'm a consultant of Secretary Yap."

"Who is paying you?"

"Nobody." I was thinking the Directors should be paying me, but I'm not billing them. But the truth is I don't care.

"That's weird" he said.

I told Senator Gordon, "I am from Ateneo, sir." He said he didn't care if I was from La Salle.

"Well, I mentioned that sir because it matters to me. My school taught me that money is not the be all and end all of my being a lawyer."

At this point, Senator Gordon said something like, "I will deal with you guys later. Let's see what's in the note."

Dir. Oblena, read the note -- a little increase in the pitch in his voice helped put some drama in the scene -- "Tell the truth."

"That's amazing!" Mister Senator Grand Inquisitor Gordon had nothing else to say.

At the end of the session, ABS-CBN gave a sinister slant to the incident by saying that Jocjoc Bolante were being primed up by the directors. "Nilalaglag na raw si Bolante." Sen. Pia Cayetano, who wasn't even there, said the directors were being told to do so in order to protect higher officials of the DA.

Another story is that at flip side of the card were the words, "Do not..." That one made me laugh.

I don't care what you guys say. But for the record, this is the true story behind the "Tell the Truth" incident.

Court of Appeqals Controversy No. 11: Second day of hearing

The inquirer reporta on the proceedings of the second day of hearing by the investigating panel on the CA controversy. Click here.

La Vida Lawyer notes these highlights:

Answering a series of questions from Callejo, she said she signed the copies of a supposedly final decision on the Meralco case that Roxas had brought to her office on July 8 even without deliberations being conducted on it. She said it was the usual practice in many divisions.

Callejo reminded her that was contrary to court rules.

Vidal justified her decision to sign, saying that she believed Roxas when he said it was “a matter of urgency.”

But when Callejo asked what the urgency was about, Vidal replied she did not ask Roxas. She later added that it was “for Justice Roxas to answer,” eliciting laughter from the audience. Callejo was not amused.

“Do not just rely on the word of our colleagues; you must conduct your own research and study so that we can serve the people judiciously. Otherwise you’ll only be a robot,” Callejo said.


-0-


Callejo also asked why Vidal signed the copy even if a pending motion for Roxas to inhibit himself remained unresolved.

“It was improper for the court to proceed with the hearing without Justice Roxas resolving the motion,” he said.

Vidal replied that she brought the decision home, studied it and did her own research. She said she agreed with its contents. She said she gave the decision back to Roxas the next day and was hurt when she found that another division came out with a decision and that the documents she had signed were mere drafts.

It turned out that deliberations on the case were conducted by Reyes and Roxas, together with Justice Apolinario Bruselas Jr. The Eighth Division eventually came out with the decision dismissing the case in favor of Meralco on July 23.

Callejo said he hoped Vidal learned her lesson and the latter also apologized for the lapses she had committed.

And then there was the question of Roxas’s traveling bag.

According to Vidal, Roxas was carrying the “voluminous” records of the case when he went to her office to personally bring her the copy of the decision that he had penned.

Court of Appeals Controversy Part 10: Miriam joins the fray, says CA is for sale.

Commentary:

Welcome to La Vida Lawyer Senator Miriam.

Court of Appeals Controversy Part 9: Businessman twits Sabio

Commentary:

The chismosos and brokers will inherit the world.

Court of Appeals Controvery Part 8: "I didn't ask for money"

Commentary

Lopez-owned ABS-CBNNEWS video report above gets an "A" for production values. Focus will now be in De Borja on how he responds to Sabio's detailed rebuttal of De Borja's story.

Court of Appeals Controversy Part 7: Sabio rebuts De Borja

Commentary:

Justice Sabio presented the affivadit of Evelyn Clavano,his relative in Cagayan de Oro, whom he claims was also asked by Mr. Francis de Borja to convince to accept the PHP 10 Million.Noteworthy is Justice Sabio's comment above to Justice Bienvenido Reyes, who eventually decided the case."Kung sa akin PHP 10 Million, magkano sa yo?" Incidentally, Justice Beinvenido Reyes has not come forward to deny the allegation.


The full text of Justice Sabio's reply to the affidavit of Francis de Borja follows (thanks to Patring):

MY REACTION TO MR.FRANCIS DE BORJA'S AFFIDAVIT DATED JULY 31, 2008 ON
THE MERALCO-SEC CASE

Good morning. I thank you all for coming. As you know, yesterday,
the CA en banc deliberated on and came to the agreement that we would
refer the procedural and ethical aspect of the Meralco-SEC case to the
Supreme Court to decide; and leave the validity of the decision for
the parties to file the appropriate legal proceedings. We also all
agreed that by referring this case to the SC, we would no longer
discuss this case outside of the agreement.

Let me say that as per our agreement, I had every intention of not
agreeing anymore to be interviewed on this matter. As some of you
have found out yesterday after the deliberations, I had declined any
attempts to be interviewed.

But then, at about 5 pm yesterday, I found out that Mr. Francis De
Borja had executed an affidavit alleging, in substance, that it was I
who had verbally insinuated to him that I could be bought for 50
million, and a position at the S.C.

Immediately thereafter, I called up PJ Vasquez and told him of this
new development. It is therefore with his knowledge and consent that
I called for this press conference, so I could set the record straight
and respond to the allegations made by Mr. De Borja.

At the outset, I must state that I cannot even begin to express my
anger, outrage and disgust that a person whom I had treated with civil
respect and kindness; and whom I thought respected me would impute
such a filthy lie on me. But that Mr. De Borja would have the nerve to
make these lies, under oath, is utterly disgusting when it was him who
had come to me with the offer of the bribe.

In the effort to make sure that I addressed all the allegations he
made in his affidavit, I have prepared this statement, and I will
narrate to you all my conversations with Mr. De Borja, including facts
and names, almost word for word as I remember them. Please bear with
me as I read this without allowing for interruptions, as I want to
make sure I cover all the facts and do not miss out on any details. I
will allow for questions, after I have read this statement.


Let me begin.

Paragraphs 1-2 of Mr. De Borja's affidavit relates to matters which
Mr. De Borja alone would know as these relate to how he purportedly
came to know of the Meralco/SEC case. I therefore would not know
whether he spoke the truth or not.

Paragraph 3, wherein he narrates what he does for a living is
consistent with what I have known of him: as a businessman who
facilitates and brokers land deals.

In paragraphs 4-12 of his affidavit— Mr. De Borja narrates the
circumstances under which we came to know each other. For the most
part, they are accurate. However, he has twisted the facts to
insinuate that the circumstances under which I received money from him
were highly irregular. It was not. Let me clarify.

1. I've had long years of service with the Roa family. The deceased
Patriarch Congressman Oloy Roa had personally instructed me as his
dying wish that I do not cease helping his children even if he was
already gone. In fact, the eldest daughter of this deceased
patriarch—Mrs Evelyn Roa Clavano—is the very person Francis De Borja
tried to contact to convince me to accept his ten million bribe.

2. Mrs Evelyn Roa Clavano and other children have always come to me
for help in family decisions. One of this was the sale of their huge
tract of land.

3. Mr. De Borja brokered the deal. The whole matter was protracted.
There were a lot of difficult issues and many times I had to settle
dispute and smooth things over with family members who were fighting
among each other but trusted me and listened to me.

4. Paragraph 8 therefore where he states that I "advised on legal
issues" is MISLEADING AND INACCUURATE. I was advising the family in a
personal capacity regarding what I thought to be most advantageous
offer for their land. When I accepted the P300K it was not as a judge,
but as a confidant and family adviser.

5. I did not ask for that money, nor was there any agreement between
us that he would give the same. As a matter of fact, Mr. De Borja
offered that money AFTER the conclusion of the deal, and without me
having to ask or saying anything. When I agreed to advise there was
absolutely no expectation of receiving.

6. I did not violate any law. You can check all the statute books on that.

7. As Mr. De Borja himself acknowledged, the money was given in
appreciation of my efforts in concluding the deal between the Roa
family and his principal. Mrs. Evelyn Roa Clavano knew about the money
and I had her blessing when I received it.

8. Mr. De Borja is obviously bringing up this past incident to
discredit me and insinuate from the facts that I had accepted a bribe
from him in the past. I categorically denounce the insinuations he is
maliciously trying to impute against my honor and integrity.

9. Paragraph 12 and its subparagraphs are likewise misleading. I never
initiated any communication with Mr. De Borja. It was he who would
call either me, or our mutual friend, Mrs. Evelyn Clavano to meet up.
It is not true that we had lunch two or three times a year. If we did
have lunch, it was on very rare occasions, not even three times a
year. I had no business with him.

10. In recent times, I likewise never initiated calls to contact him.
It was only on one occasion in this case when I wished to end his
pestering—which I will shortly discuss—that I decided to call him up.

11. Even now, I challenge him to produce his phone records to prove
that I ever contacted him. I can show you all my phone records to
prove the fact that he always tried to contact me, not the reverse.

12. Moving on now on to his allegations of what he narrated as "What
happened when Justice Sabio met with me on the MERALCO–SEC case."
This is another inaccurate and misleading statement. It was not I who
met with Mr. De Borja. It was he who sought me out to set an
appointment with me.

13. I specifically and vehemently deny Paragraphs 13-21 as blatant
lies. Rather than address these paragraph by paragraph, let me narrate
exactly how Mr. De Borja initated contact and what exactly transpired
in these 4 conversations: three by phone exchanges and one
face-to-face after he had sought me out at the Ateneo.

• The first contact happened on or about May 31. Merely days after the
Meralco-SEC case had been raffled, Mr. De Borja called me up, so
suddenly, and after having had no contact for almost a year.

• Mr. De Borja said: Mabuhay ka, Justice.

• I asked: Why did you say 'Mabuhay'?

• He said: I just want to let you know that the Makati Business Club
is happy with what you did.

• I asked: Why, what have I done?

• And he answered: Di ba isa ka sa pumirma ng TRO?

• I told him: Yes, in fact, I am the Acting chairman of the Division.

• And he said: Mabuti hindi ka na pressure.

• And I told him: I voted according to my conscience.

• Then he said: Mabuhay ka Justice.

• That was the end of that conversation.


14. The second phone call from Mr. De Borja happened on July 1,
sometime during the day.
• Mr. De Borja started the call this way. He said: Justice, pwede ba
tayong magkita? Importante lang.

• I told him: But I have classes from 6-8 o'clock tonight.

• He said: Pupuntahan na lang kita pagkatapos ng klase mo.

• Then I said: Sige, pero hindi ako magtatagal. Kasama ko and aking
asawa at anak.


15. On that same day, by the time I had finished my class at 8 p.m.,
Mr. De Borja was already waiting for me at the Lobby Lounge of the 3rd
Floor of the Ateneo Law School. His first words to me were: Alam mo
Justice kung sino ang kasama ko ngayon sa kotse? Si Manolo Lopez.

• Then he said: Noong tanungin kita at sinabi kong "Mabuhay ka
Justice," si Manolo Lopez and katabi ko noon. Papunta siyang America,
kaya ako na lang ang pumunta dito para makiusap sa 'yo. Alam mo, itong
kaso na ito is a matter of life and death for the Lopezes. And alam mo
naman what the Marcoses did to them, which is being done now by the
Arroyos.

• At that point he mentioned the impasse between Justice Bienvenido
Reyes and myself. He said: Alam naming may problema kayo ni Justice
Reyes tungkol sa chairmanship.

• I was surprised how he came to know about it, as this was an
internal matter of the Court of Appeals which only happened fairly
recently and many associate justices of the CA were not even aware of
this. Just the same, I explained my stand and why I could not
relinquish the chairmanship to Justice Reyes.

• He then replied: Alam mo, Justice, ang opinion dito ni Nonong Cruz
ay i-challenge ang stand mo. Kaya lang, mayroon namang nagsabi na it
might become messy.

• Then he bragged to me: Ako din ang responsible sa pag-recommend at
pag-hire ng Villaraza Law Firm.

• Then he explained that he was there to offer me a win-win situation.

• He said: Justice, mayroon kaming P10 million. Ready.


16. At that point, I was shocked that he had a very low regard for me.
He was treating me like there was a price on my person. I could not
describe my feelings. I was stunned. But at the same time, hindi ko
rin magawang bastusin siya because I had known him since 1993 and this
was the first time that he had ever treated me like this, or shown
that he believed I could be bought.

• So I just told him: Francis, I cannot in conscience agree to that.

• His answer was: Sabi ko na nga sa kanila, mahirap ka talaga papayag.
Kasi may anak iyang Opus Dei. Numerary pa.

• At this point, I just wanted to leave, so I told him I could not
stay long. I told him my wife and lawyer daughter were waiting.

• Even then, he was already insistent. His parting words before I
left were: Just think about it, Justice.


17. When I went down to the car park, I told my wife and daughter
about what Mr. Francis De Borja tried to do to me. Both of them got
angry and insulted on my behalf. They likewise expressed the
sentiment that, although we did not know him well, we thought he
respected me as a person. I also told them that Mr. Francis De Borja
bragged to Manolo Lopez of his perceived closeness to me at
pinapaniwala niya siguro si Manolo Lopez na kaya niya ako.


18. At this point, I thought I had made myself clear to Mr. De Borja
that I was rejecting any offer. But Mr. De Borja would not quit. A
day or two later, I found out that Mr. De Borja called up our mutual
friend in Cagayan de Oro, Mrs. Evelyn Roa Clavano. He actually urged
Mrs. Clavano to ask me to give way to Justice Bienvenido Reyes because
they cannot be sure of me.


19. I found out about Mr. De Borja's call because a few days after
that meeting, I had called Mrs. Clavano about some personal matters.
It was during that call that I was again shocked to learn that Mr. De
Borja had called her. She told me she was also shocked that Francis
De Borja had the gall to ask her to convince me to accept the bribe.
As we speak, Mrs . Clavano is finalizing her affidavit on the phone
conversation she had with Mr. De Borja and this statement will be
faxed to me within the day.


20. Again, I was still of the opinion that since I had given a firm NO
to his offer, I thought the matter had already been settled. Mr. De
Borja, however, kept pestering me with phone calls and text messages.
On this point again, I challenge him to produce his phone records to
disprove what I am saying.


21. By this time, I had begun to feel oppressed by his pestering. I
called him up to tell him once and for all to stop pestering me. Let
me say again: I never initiated the calls to him except this single
time after he kept pestering me with his text messages.

• When he answered the call he said: Mabuti naman Justice tumawag ka,
kasi malapit na ang deadline ng submission ng memorandum.
Pinag-isipan mo bang mabuti ang offer namin? Kasi sayang din kung di
mo tatanggapin, Kasi kahit aabot itong kaso sa Supreme Court,
matatalo ka din. Sayang lang 'yung P10 million. Baka sisihin ka pa ng
mga anak mo.

• Again, I was shocked at the things he was saying, and could not
believe he would repeat an offer which I had already rejected. I
repeated my "NO." And then, because his insistence seemed to me like
he could not understand why I kept saying "NO," I tried to explain: If
I accept that, my conscience will bother me forever. How can I face my
wife and two daughters? One a lawyer and the other a Numerary member
of Opus Dei? And besides, how can I reconcile my being a member of
PHILJA's Ethics and Judicial Conduct Department; being a lecturer of
the MCLE; and being a Pre-Bar Reviewer of the Ateneo Law School on
Legal and Judicial Ethics?

• At that point, he told me: Wala naman kaming pinapagawa sa iyo na illegal, eh.

• And he added: You know Justice, after two or three weeks,
makakalimutan na ito ng mga tao.

• And he said: Meron naman diyang mga Atenista na tumatanggap.

• I told him: I don't know about them, but I am different.

• Then he said: Well, if you will not accept, we will be forced to
look for other ways.

• Then I told him: But they will have to contend with me.

• As a parting statement, he said: Justice, no matter what, saludo
talaga ako sa iyo.

22. The details I have set out are the extent of my conversation with
Mr. Francis De Borja. In no occasion did I solicit any money or favor
from him.


23. Then, as you know, on July 7, 2008, MERALCO filed a motion for
Justice Bienvenido Reyes to assume the chairmanship. The rest that
happened after that last conversation are as I narrated in my
complaint letter to Presiding Justice Conrado Vazquez.


24. Allow me to say that I would not concoct this story to put my own
integrity or my safety or the safety of my family at risk. But in
coming out with the bare facts—including names of people as they were
mentioned and events as they have happened—I may have compromised my
own safety and the safety of the people I know and love.


25. My family and friends have supported my decision to do so, knowing
my desire to preserve the integrity of the Court of which I am part,
and the laws of this country which I have pledged to uphold, honor and
obey. More importantly, I only desire to tell the truth, and I swear
by these statements on my honor as a Justice of the Court of Appeals,
but most especially on my honor as a Head Servant of a Catholic
Christian Community (Fruit of the Holy Spirit of Gusa, Cagayan de Oro)
for more than 25 years.



JOSE L. SABIO, JR. (signed)
ASSOCIATE JUSTICE
COURT OF APPEALS

Court of Appeals Controversy part 6: Francis Roa de Borja identifies himself as the mystery man, claims Sabio asked PHP 50 M

The Inquirer reports that a certain Francis Roa de Borja identified himself as the Makati businessman who was brokering for Meralco that Justice Sabio mentioned in his controversial letter to the CA Presiding Justice. Mr. de Borja in his sworn affidavit claims that Justice Sabio asked for PHP 50 M and Justice Sabio wanted a seat in the Supreme Court. The text of the affidavit is below the commentary.

Commentary:

Seven questions for the mystery man.

1. Justice Sabio said in his letter that the mystery man was brokering for MERALCO. By claiming that he is the mystery man, is Mr. de Borja also claiming that he was brokering for MERALCO?

2. Is the MERALCO case a matter for brokers to meddle with?

3. Did Mr. De Borja convey the PHP 50 Million price to the owners of MERALCO?

4. If so, did the owners of MERALCO believe him?

5. Is the PHP 10 Million to inhibit the counter-offer?

6. Is the action of the lawyers of MERALCO in filing a Motion for Justice Reyes to assume the Chairmanship the rejection of the offer?

7. Does Mr. Francis Roa de Borja also admit that he pestered Justice Sabio and even asked a relative of Justice Sabio from Cagayan de Oro to convince Justice Sabio to accept the PHP 10 Million and inhibit?

More questions than answers.

-o-

The full text of the Affidavit follows:

REPUBLIC OF THE PHILIPPINES)
PASIG CITY) S.S.

A F F I D A V I T

I, FRANCIS ROA DE BORJA, Filipino, of legal age, with address at 343 G. de Borja St., Pateros, Metro Manila, after having been duly sworn in accordance with law, hereby depose and state:

(BACKGROUND)

1. At the 2008 annual stockholders meeting of Meralco a controversy arose regarding an SEC order to nullify the proxies which had been issued in favor of the Meralco management. I subsequently found out from the news that Justice Jose Sabio, Jr. was one of the justices who was hearing the case filed by Meralco against the GSIS and SEC (the “Meralco/GSIS/SEC case”).

2. This development struck a chord in me since I knew Justice Sabio quite well from my previous dealings in the early 1990’s with a group he had been advising in Cagayan de Oro City on a real estate transaction that I was putting together.

3. I am a businessman. Among other activities, I have been engaged in the past in the sale and purchase of real properties, manufacturing companies, brokering contracts, and in general, deal making and project packaging from which I would stand to gain a fee for my efforts.

(HOW I CAME TO KNOW JUSTICE SABIO VERY WELL, SUCH BEING THE REASON FOR MY HAVING ENOUGH CONFIDENCE IN OUR FRIENDSHIP TO TALK TO HIM ABOUT THE MERALCO/GSIS/SEC CASE)

4. My mother is a Roa. By virtue of this, I am related to the extended Roa clan whose roots are in Cagayan de Oro City.

5. One of the branches of the Roa family, the branch originating from the late Congressman Pedro “Oloy” Roa, was the previous owner of a 400 hectare property in Cagayan de Oro City located very near the city airport (the “CDO Property”).

6. Sometime in 1993, when the Pedro Roa family still owned the CDO Property, I learned of their intention to sell it. I contacted a family member to say that I could get a developer to buy it.

7. I talked to the Investment and Capital Corporation of the Philippines (ICCP) which had developed the highly successful Science Park in Laguna. ICCP forthwith expressed interest in buying the said property for development into a residential subdivision.
8. In the course of the negotiations between ICCP and the Pedro Roa family, the latter were advised on legal issues by Judge Jose Sabio Jr. who was then a Regional Trial Court Judge in Cagayan de Oro City.

9. The negotiations were protracted and took a year or so to complete. Judge Sabio and I came to know each other quite well during this time and became friends.

10. The sale of the Cagayan de Oro Property was successfully completed and the same was subsequently developed into the Pueblo de Oro Subdivision.

11. After I received my fee for the transaction, I gave Three Hundred Thousand Pesos (P300,000) to Judge Sabio in appreciation of the efforts he had undertaken towards the successful completion of the transaction. This gesture was also a way of expressing to him that I had come to value the friendship we had developed.

12. Afterwards, Judge Sabio and I continued to communicate with each other, albeit infrequently.

12.1. When Judge Sabio would come over to Manila from Cagayan de Oro City, he would call me up and we would have lunch or dinner together.

12.2. Subsequently, when Judge Sabio was appointed to the Court of Appeals in 1999 and transferred residence to Manila, he and I would meet on occasion and have lunch or dinner perhaps two or three times a year.

(WHAT TRANSPIRED WHEN JUSTICE SABIO MET WITH ME ON THE MERALCO/GSIS/SEC CASE)

13. On or about May 31, 2008 and acting on my own, I called up Justice Sabio to chitchat on the Meralco/GSIS/SEC case because it was hogging the headlines, and to hear what was happening, so to speak, directly from the horse’s mouth.

13.1. During the telephone conversation, I commented to Justice Sabio to the effect that “Grabe siguro ang pressure sa iyo dito!”

13.2 In reply, Justice Sabio said “Ay Francis, you have no idea of the pressures I am undergoing from the government.”

13.3. I replied that I could well imagine his situation and after a few more words said goodbye and wished him good luck.

14. In late June, I called Justice Sabio again and suggested we get together to touch base. In response, he invited me to see him at the Ateneo Law School in Rockwell after his classes.

15. In the evening of Tuesday, July 1, 2008, I went to Ateneo Law School to see Justice Sabio. I invited him to have dinner at the nearby Rockwell Mall. However, he told me that he could meet with me only for a while since his wife would be fetching him and would be waiting in their car. Thus, we just talked at the lobby lounge.

15.1. During our conversation, we talked about the Meralco, GSIS, SEC controversy.

15.1.1 Justice Sabio confided that he was the Acting Chairman of the Division hearing the case but that he was very piqued with the regular Chairman of the Division, Justice Bienvenido Reyes, who was exercising efforts to reclaim his seat.

15.1.2. Justice Sabio mentioned the following reasons why he thought he should remain the Acting Chairman of the Division hearing the Meralco/GSIS/SEC case:

15.1.2.1. He had signed the temporary restraining order issued in the case. He said “hindi bale sana kung hindi ako ang pumirma.”

15.1.2.2. In the last few weeks, he had conversed several times with the said regular Chairman of the Division, Justice Bienvenido Reyes, but he groused that “walang sinasabi sa akin yun pala gusto niyang bumalik. Why did he not say anything to me? Parang trinaidor ako.”

15.1.2.3. Justice Sabio added that he was very suspicious of Justice Reyes’s motives. “Why does he want to come back? Siguro meron silang gustong gawin dito.”

15.1.2.4. He mentioned that “Justice Cruz” who had issued a ruling on the matter to the effect that he (Justice Sabio) should give way to Justice Reyes was even “junior” in rank to him. He commented “Insulto sa akin yan.”

15.1.2.5. He said that he had consulted other colleagues in the Court of Appeals and that they had told him that he was in the right and should stick to his guns.

15.1.2.6. He said he had two children who are both lawyers and he had discussed this matter with them and they had likewise advised him not to give way.

15.1.2.7. He vowed that he would hold on as Acting Chairman of the Division for the case even if he had to elevate the matter to the Supreme Court.

16. Justice Sabio then told me about the blandishments coming from the government side. He said that he was being offered a promotion to the Supreme Court and money to favor the GSIS position.

17. I was nonplussed by this last statement since Justice Sabio had just expressed suspicion about the motives of Justice Reyes and other Division members in their wanting Justice Reyes to resume the chairmanship of the Division. He, in effect, had just given me his motive for wanting to remain as Acting Chair of the Division.

18. I concluded that this was probably the reason why he was hanging on so desperately to the Acting Chairmanship of the Division. If he would give up the said Acting Chairmanship, he would lose his chance for a Supreme Court seat and the promise of monetary consideration.

19. I had been appalled from the beginning by the way GSIS and the government were going after Meralco. I told Justice Sabio that it was obvious that the government was doing this in retaliation for the news coverage by ABS-CBN of the Administration. I then asked him “what would it take for you to resist the government’s offer?”

20. The response of Justice Sabio was “Fifty Million.”

21. I was so taken aback by the answer of Justice Sabio and the huge amount he had mentioned that I was at a loss for words to say. After regaining my composure, we made our goodbyes as his wife was already waiting for him in their car.

FURTHER AFFIANT SAYETH NAUGHT.

FRANCIS ROA DE BORJA
Affiant

The Court of Appeals Controversy Part 5: CA says respect our silence

The Inquirer reports that the Court of Appeals has issued a statement that it has referred the controversy to the Supreme Court Office of the Court Administrator. The justices also agreed to leave the ruling on the dispute between the Manila Electric Co. (Meralco) and the Government Service Insurance System (GSIS) to the “parties concerned for appropriate action;” and refer the conflict to its standing committee on the internal rules of court.

The Inquirer further reports that the justices also appealed to everyone to respect their silence on the issue and refrain from public discussion of the case.

Commentary:

With the appeal of the Court of Appeals to refrain from public discussion of the case, I don't know where that leaves this blog. I will check the rules on "sub judice" and post about it later.