Court of Appeals Journal

Volume XII, No. 2 Manila, Philippines June-December 2010

I would like to thank the Court of Appeals, its officials and employees for their continued sup- port to our efforts to improve the judiciary. Your enthusiastic participation in the recent benefit run for the families of our slain judges was very admirable. Public service, indeed, demands a lot from us. The danger we face every day in the performance of our duty is real. It is a true test of our commitment to safeguard our people’s freedom and promote the rule of law. What we have solemnly vowed to God and to our fellowmen, we must perform. We have to remain steadfast in our professional principles, especially in the defense of our Constitution. As it embod- ies our nation’s goals and aspirations, we are duty bound to ensure that no one is above and beyond it. Finally, let me exhort the officials and employees of the Court of Appeals to remain true to the call of public duty. The judiciary being the vanguard of democracy, we can do no less. Manila, October 22, 2010.

WHAT’S INSIDE

A Wall Paper No More 2 Pilipinas, Tsina at Amerika 3 This September, we welcome yet another issue of our Judicial Plagiarism 4 Impact of RA 9048 7 Court of Appeals Journal even as we mark significant Reforms in 2011 Bar Exams 8 causes for celebration. These occasions are auspicious re- Recent Jurisprudence 12 flections of our collective goals for the Court of Appeals. In Mercantile Law th New CA Justices 14 PJ Andres B. Reyes, Jr. The 10 of September marks Eid'l Fitr or the end of Rama- The Double-Edged Sword of the 16 dan, a grace-filled period of prayer, self-sacrifice and fasting Liberalized Rule on Reversion of for our Muslim brothers and sisters. Eid reminds us that a commitment of body Expropriated Property Tilting the Scales of Justice 20 and soul to higher aspirations is an objective as profitable to a Muslim as to all On Motions for Time 24 members of humankind. to File Certiorari In much cruder fashion, this is what we try to achieve by praying for guid- Recent SC Rulings 26 Confronting Inconsistencies 28 ance in our work and celebrating our talents through lively entertainment num- In Jurisprudence bers at our weekly flag ceremony as begun by the administrative departments. The Hague Experience 30 Through the dedication of our colleagues from the Association of Court of Ap- Gender Awareness and 32 Sensitivity peals Employees (ACAE) and the Sports Committee, we are able to nourish our CA’s Got Talent 33 physical talents and celebrate our unique sense of community through team Promoting the Rule of Law 38 building activities and our recent sportsfest. Also worthy to note are the re- And Safeguarding the Constitution newed advocacies of those among us who are active in various spiritual minis- Beating Stress with Nutrition 39 tries in the Court. Far from serving as mere diversions from our daily tasks, like Solution Eid, they provide as with a sense of joy and peace in all that we do.

PJ’s Message/p.36 2 Court of Appeals Journal

When asked to write on the subject of security within the In July 2009, the guards were made to attend a VIP Court, I had half the mind to refuse knowing that the subject Training Seminar which is all about the ways to protect tends to become boring. Blame, however, my innate genes not court officials. The dramatization they conducted during the to refuse any challenge. I agreed to do so with trepidation. I Monday flag-raising ceremony thereafter, with no less than postponed doing the write-up hoping that a miracle would then Presiding Justice Choy Vasquez acting as the VIP, was a happen and our Justice Editor Tijam withdraws his standing thriller - a success. Who would ever think that members of order or a write up suddenly appears on my computer screen, the security group have the makings of a SWAT team? all finished. The deadline fast approaching without the hoped- From July 31 to August 28, 2009, security guards for miracle, the time has come to sit down and start the task . . participated in a month-long Security Marshall . realizing that this is perhaps the vehicle to make our CA Development Program designed to further develop their community understand why the CA Security Group is . . . a knowledge, skills, and attitude on security work. A Security wallpaper no more. Officer Computer Training/Seminar was also conducted Security personnel abound in almost all places nowadays. from July 31 to August 31, 2010, not to mention that the The sight of them has become so commonplace and their guards had to undergo neuro-psychiatric examinations. importance has, more often than not, been trivialized. Like To boost the security group’s morale and esprit de wallpapers, they are a part of the structure. Left on their own, corp, intensified drill exercises on selected Saturdays they tend to become unruly, undisciplined, and uncouth? The including, at times, formation and jogging exercises at Luneta Court of Appeals was not an exception. Entering the court, were required of them. Daily, in the morning and afternoon time was when one would be met by a security guard, duty shifts, three things were required of the incoming duty sometimes with a cigarette hanging between his lips or with a guards. Specifically, a five-minute physical calisthenics to crumpled or incomplete uniform, who would ask, in a ensure their fitness, a five-minute open marching drill to discourteous manner, for one’s identification and the usual further instill robotic discipline, and a five-minute briefing questions. Vendors go in and out with the guards merely and turn-over on “Do’s and Don’t’s”. Despite the exercises looking on, unmindful of their task of ensuring not only the though, some of the guards still have beer bellies but give safety but also the integrity of our sacred temple of justice. them a month or so and they will probably have perfect abs. The winds of change . . . Insha Allah. In recent times, the beginning moves to reinvent the CA Another change that was introduced was the security Security Group came in October 2008. To professionalize group’s uniform, a long overdue one actually. Garb in their the ranks, the CA Security Group was made to attend the new green & brown uniforms, the security personnel looks far PNP-sponsored four series lecture on Basic Security more dignified. The soon-to-be released second new set of Training Course. There, the group was given refresher points uniform and the gala uniform for use in en banc proceedings on courtesy and discipline, community relations, basic and, God forbid, in funerals are to watch out for. Gone, at investigation, safety and security procedures, laws on arrest, last, are the days of the drab lousy uniforms! search, and seizure, as well as standard operating procedures In line with the new look, the security group’s handheld on emergencies, fire prevention and control, and the like. At radios, guns, and ammunitions were also beefed up. Our which time, the conduct of the security guards every Monday Baguio guards are also recipients. To date, the modernization was likewise modified in that they were made to do a real, of the court’s security equipment is on the way. CCTV honest-to-goodness marching-in-review flag-raising ceremony. cameras, electronic gates, and the like will soon be installed. In March 2009, the “Best Guard of the Month” contest Management renaissance is on the fore with the was launched enabling the security personnel to be in their watch of PJ Andres B. Reyes, Jr.. To say that he is highly competitive mode. Being chosen as the “Best Guard of the fired up and well-meaning in his drive to improve the CA Month” is a no small feat as the announcement and plaque image, as typified by his self-imposed work punctuality (he awarding is done before the Monday flag ceremony crowd. holds regular 8:00 a.m. meetings with court officials) and his The judges are a justice and some five court officials whose case zero-backlog project, is an understatement. composition rotates monthly and with identities divulged only The conversion of our Centennial building entrance at the time of the awarding. By and large, seeing to it that a to be the court’s Grand Entrance is the PJ’s new guard is always in his best deportment is not an easy matter. brainchild. When done, hopefully in three months time, the Wallpaper No More/p.11 Court of Appeals Journal 3

Nuon pamang mga unang panahon, bago ang tiempong Kastila, Spratleys ang mga kayamanang mineral kasama na ang kayamanang tiempong Amerikano at tiempong Hapon, ay mayruon nang pakiki- langis na katumbas ang lawak ng nasa Arabia. Sinasabi rin na ang pag-ugnayan ang ating mga ninuno sa bansang Tsina. Ang pag- karagatang timog Tsina ay kritikal na daanan ng mga barkong pangan- uugnayang ito ay nakasentro sa larangan ng pangangalakal. Matatan- galakal pandaigdigan. Ang mga kadahilanang ito ay siyang sanhi ng daan na sa ating kasaysayan ay lumutang ang mga pangalang Huang pagpapalakasan at pag-iiringan ng Amerika at Tsina. Dahilan sa pag- Ta Yuan at Chao Ju Kua bilang mga pangunahing mangangalakal na kawatak-watak ng Ruso, ang Amerika ay siya na lamang matuturing Intsik na humayo sa ating mga baybayin upang makipagpalitan ng natitirang “super-power” sa daigdig. Ang Tsina naman ay tinuturing mga kalakal sa ating mga ninuno. Sila rin ay nagsilbing mga taga- lumalakas at lumulutang na maaaring makapantay ang lakas ng lathala ng mga kaganapan sa ating pulo ng mga unang panahon na Amerika. iyon. Matatandaan din ang isang nagngangalang Lima Hong na naki- Kung ating tutunghayan ang daigdigang mapa, mapapansin ang lala bilang isang kinatatakutang Intsik marahil dahil sa mga marahas lawak at kasentrohan ng Tsina sapat na upang maka-impluwensya sa niyang pamamaraan sa pakikipagkalakal sa ating mga ninuno. Baga- anu mang panig ng daigdig kung ito'y kaniyang nanaisin. Ang Pilipinas ma't ang Tsina nuon pa ma'y masasabing isa nang higanteng bansa, ay malapit lang sa Tsina at higit na mas-malapit ito rito kaysa sa hindi ito nagawang manakop ng mga ibang pulo sa karagatan. Katu- Amerika. Mahigit sa isang oras lamang sa eroplano mula sa Pilipinas nayan ay ni hindi man lang nito nasakop ang kahit na isang isla sa ay mararating na ang Tsina. Kung iisipin, dapat nga ay mas malapit ating kapuloan. Maliban lamang sa mga pagtatangka ni Lima Hong na tayo sa Tsina sa usaping pandaigdigang ugnayan dahil sa malapit na- masasabing kaniyang sariling sikap lamang at hindi pangkalahatang man talaga tayo dito kung ang pagbabatayan ay ang heyograpiya; kagustuhan ng kabuoang Tsina, walang naging matagumpay na samantalang ang Amerika ay nasa kabila pa ng karagatang Pasipiko. pananakop pulitikal ang mga Intsik sa ating kapuloan. Ang tangka Marahil ang pananahimik ng Tsina nuong mga nakaraang siglo, ang nitong sakupin ang Hapon ay nauwi sa malaking kapahamakan dahil pandaigdigang pananakop ng mga bansang Yuropeo, ang pagbangon sa lakas ng habagat na siyang nagpalubog sa lahat ng barkong Intsik sa ng bagong lakas kolonyal na Amerika, at ang pangkaloobang suliranin karagatan ng Hapon. Kaya naman ganuon na lamang ang laki ng pasa- sa Tsina nuong kapanahunan ng himagsikan kultural, ay siyang naging salamat ng Hapon sa “kamikaze” o “divine wind” na siyang sumagip mga dahilan sa pagkalayo natin sa Tsina sa larangan ng daigdigang sa kanila. ugnayan. Ang pagiging kolonya natin ng Espanya at ng Amerika ay Sa mga sari-saring kasulatan, kabilang na ang mga panunulat ni maari din masabing nagpalayo sa atin sa Tsina. Ang ating mga naging Dr. Jose Rizal, ay ating matutunghayan ang malawak na relasyon natin pinuno at nakaaantas sa buhay ay mas namulat sa isip Kastila at isip sa mga Intsik. Sinasabing sadyang napakalakas ng ugnayan o relasyon Amerika. Ang pagkasakop nating ito ay nagbunga sa isang pag-iisip na sa atin ng Tsina sapat na upang maging isang pursiento ng dugo na kolonyal (colonial mentality). Ito ay dinaan na lamang sa katutuwang nananalaytay sa ating mga ugat ay dugong Intsik, sa ayaw ma't sa gusto “mental colony” daw sa isang “comic strip” na lumabas sa isang paha- natin. Magpahanggang ngayon ay napakalakas ng pangangalakal ng yagang dekada setenta na may pamagat na “Tikyo.” Ang pag-iisip na mga kapatid natingTsinoy sa ating bansa. Matapos lisanin and ito ay isang kritikal na balakid sa pagkakaroon natin ng mas malaking kanilang bayang Tsina at humayo sa atin, ang mga kapatid nating Int- pag-unawa sa ating kalagayan. Dapat nating sikapin na malagpasan sik na ito'y nagsimula sa ilalim, naghirap, nagtiyaga (pamimili ng bote, ang hadlang na ito tungo sa pagkakaroon ng pandaigdigang pananaw diyaryo, garapa) at sa luob lamang ng isang daang taon ay nagtagum- na lubos nating kailangan upang maiging maunawaan ang mga kaga- pay bilang mga taipan. Sila nga'y tubong Tsina subalit sila rin ay Pilipi- napan sa kapaligiran ng ating karagatan. nong-pilipino na, sa isip, sa salita, sa diwa at sa gawa. Bilang isang malayang bayan na malapit sa Tsina dahilan sa Sa kadahilanang malalim ang kaugatan ng ating pakikitungo sa heyograpiya at malapit din naman sa Amerika bunso ng kasaysayan, Tsina ay nararapat lamang mabigyan ng kaukulang pansin at masusing marahil ay karapatdapat lamang nating maunawan na darating ang pag-aaral ang nais nating maging ugnayang pangkinabukasan sa nagis- panahon na kailangan nating manindigan at magkaroon ng isang ing ng dragong Tsina. Marahil ay dapat rin nating maunawaan ang pananaw na tutugon sa mga umuusbong na kaganapan sa ating kinala- mga kaganapan sa kadaigdigan lalo na ang pag-iiringan ng Tsina at ng lagyang karagatan. Higit na makatutulong rito ang pagsasagawa ng Amerika na may kinalaman sa pag-kukuntrola ng karagatang timog mga pag-aaral na magpapalakas ng ating kaalaman tungkol sa ug- Tsina. Ang ating ina-angking Spratley Islands na ina-angkin rin ng nayang Pilipinas at Tsina. Higit sa lahat, dapat nating maunawaan na mga iba pang bansa ay napapaloob sa karagatang ito. May kasabihan ang interes ng Amerika, Tsina at kung anu pa mang bayan ay ang ang matatanda na dapat raw ay umiwas ang mga langgam sa mga nag- kani-kaniyang kapakanan. Hindi sila manunuyo sa atin kung wala si- uumpugang higante, subalit sa usaping pandaigdigang pulitikal sad- lang mapapakinabangan. Alam rin naman nila na ang ating pakiki- yang napakahirap umiwas ng isang maliit na bayan lalo na kung ito'y tungo sa kanila at pagtugon sa kanilang mga panunuyo ay napapaloob nasasa gitna mismo ng pinaglalabanan. Sinasabing nasa-ilalim ng Pilipinas, Tsina/p.35 4 Court of Appeals Journal

Introduction But what exactly is plagiarism? How is it committed? Does Who would have thought that the number of international audi- the term apply to judicial writings? Are judges and justices free to ence glued at the Emmy's and Miss Universe pageant held last August copy from law articles, journals, books, treatises and other works 2010 could be equalled only by a scriptless, suspense-filled reality without citing their sources? Does plagiarism conflict with the drama from the Philippines whose director and main actor – turned duty of judges and justices to settle actual controversies by way protagonist is a police officer? The “major, major” hit series would of judicial decisions as provided in Article VIII, Sections 1 and 14 not have gained international acclaim if not for its supporting casts: of the 1987 Philippine Constitution? Can judges or justices be foreign nationals falling as victims, media reporters jostling for safety, sanctioned on the pretext of plagiarism? Will it erode the public's bystanders peeping by their umbrella holes, the police's sledge- trust and confidence in the judiciary? With this article, the author hammer-whacking assault team (SWAT) and government officials does not represent herself as an expert in judicial opinion writing but jockeying for TV spots. Under our criminal laws, the police officer only fervently hopes to educate the readers on the topic of “judicial could have been charged for kidnapping, among others. plagiarism” and other matters germane thereto. Just a few weeks prior thereto, a member of the Supreme Court The Concept of Plagiarism was criticized on allegation of “stealing” other authors' works. The Like any other word foreign to the ear, we first dissect the etymol- high court's decision on the request of comfort women during the ogy and meaning of plagiarism. The term “plagiarism” comes from the Japanese occupation urging the Philippine government to compel Latin word “plagiarius,” meaning a kidnapper. The first known use Tokyo to issue a public apology and provide compensation drew of the term dates back to the first century A.D. when the poet Martial varied reactions from both local and foreign legal experts. A battery reportedly employed the term to criticize a fellow poet who used Mar- of maroon law deans condemned the act while a legislator even called tial’s poetry as if it were his own.* for the justice's resignation. All was not lost, however, for the magis- In their paper Plagiarism and Legal Scholarship in the Age of Information trate with the high court itself referring the matter to its ethics com- Sharing: The Need for Intellectual Honesty, authors C.M. Bast and L. B. mittee for appropriate investigation. Samuels found out that “while there is a general agreement as to what Moreover, a business mogul was also harshly slated for using is meant by plagiarism, there is no standard definition of the term” but “borrowed” clips of speeches by well-known individuals in addressing a “most share the concept that plagiarists misappropriate another’s group of graduating students. While the tycoon's discourse was, un- words as their own without acknowledging the contribution or doubtedly, inspirational, the same elicited the question of whether the source.”* contents thereof were the speaker's original ideas as no attribution In their study, Bast and Samuels limited the definition of plagia- was made as regards the possible sources. The speech became a noto- rism to that of the Legal Writing Institute (LWI), an organization of rious topic for digital techies in many social networking sites. professors who teach legal writing at law schools, author Judge Richard “Kidnapping” Another's Work A. Posner, student commentator Laurie Sterns and the Harvard Uni- While others may disagree, I would like to believe that all the versity probably because of the lack of standard definition of the term. three different instances cited above somehow demonstrate the con- According to them, the LWI defines plagiarism as “[t]aking the cept of “kidnapping” in various forms: the first, a physical act; the literary property of another, passing it off as one’s own without proper attribution, second, a written form; and the last, a verbal one. The second and and reaping from its use any benefit from an academic institution.” They stressed third examples are more mental or intellectual rather than physical. that the definition includes both unintentional and intentional plagia- Instead of depriving another's liberty, they strip the original authors rism; however, because it is restricted to “literary property,” it does not the due credit for their creative product or scholarship. encompass the use of another’s spoken words or ideas.* In this regard, R.A. 8293 or the “Intellectual Property Code of the In contrast, Judge Posner defines plagiarism as “non-consensual Philippines” and other intellectual property laws and treaties, conven- fraudulent copying” wherein “the plagiarist [misrepresents] himself as the tions or agreements in which the country is a signatory protects copy- original author, thereby conferring upon himself an undeserved bene- righted works and thus, entitles original authors the right to seek fit.”* Bast and Samuels believe that “Posner’s definition is much more compensation and damages for possible infringement. When applied restrictive in that “fraudulent” conduct requires intent to deceive or at to writings, plagiarism is committed when a person appropriates the least recklessness by the plagiarist and would not include inadvertent or work of the original author as one’s own without proper attribution. innocent instances of copying.”* In short, plagiarism, in Posner’s case, Debates, however, continue as to whether plagiarism covers writings is limited “to the use of passages from an author without the author’s of judges and justices, thus, the term “judicial plagiarism”. consent.”* * Citations omitted due to lack of space. On one hand, plagiarism, according to Stearns, is committed by Court of Appeals Journal 5

“intentionally taking the literary property of another without attribution and after the author’s death; plagiarism has no such time limits. passing it off as one’s own, having failed to add anything of value to the copied Second, copyright violation is primarily a legal offense; pla- material and having reaped from its use an unearned benefit.”* “Seemingly, giarism is primarily a moral offense. Third, as the Intellectual this definition would permit reuse without attribution if the new Property Association of the Philippines [IPAP] puts it, “the writer made some kind of change that adds value.”* As commented, fundamental principle of copyright law is that a copyright however, by Bast and Samuels, the problem with this definition is protects the expression of an idea rather than the idea itself.” who decides what change adds value and why does it obviate the Plagiarism refers not only to the expression of an idea, but to need for attribution. the idea itself.* The two authors also cite the definition of plagiarism by Har- Additionally, copyright is governed by R.A. 8293, Section 4(a) of vard University “as passing off a source’s information, ideas, or words as your which enumerates “copyright and related rights” as part of the term own by omitting to acknowledge that source – an act of lying, cheating, and steal- “intellectual property rights”. The said law, however, does not define ing.”* Accordingly, this “[d]efinition is much more basic and encom- what “copyright” is. The World Intellectual Property Organization, passing, as it omits any requirement of receiving a benefit. Further, it however, proposed the definition of the term by making explicit the covers “words,” “information,” and “ideas” that might not be in- following elements: (a) Copyright has to do with the rights of intellec- cluded under the narrower “literary property” concept used by LWI tual creators, particularly those usually, though not exclusively, con- and Stearns.”* nected with mass communication; and (b) It is that system of legal Additionally, author J.S. Dursht defines plagiarism as “the inten- protection an author enjoys of the form of expression of ideas.* In- tional appropriation of the creative product or scholarship of another without stead, R.A. 8293 defines “copyright” by way of enumeration catego- attribution.”* rized mainly as literary and artistic works and derivative works.* This Finally, Black refers to the term as “the act of appropriating the liter- type of definition only illustrates how broad the term is and how diffi- ary compositions of another, or parts of passages of his writings, or the ideas or cult it is to legislate a definitive, exclusive or even standard meaning of language of the same, and passing them off as the product of one’s own mind.”* the term. He, however, clarifies that if the material is protected by copyright, Doctrines and Principles in Case Decisions such act may constitute an offense of copyright infringement.* Oth- Obviously, judges and justices resort to the written form of in- erwise stated, where the literary composition or writing appropriated forming litigants as to how a case or matter presented before them are as one’s own is copyrighted, the act committed is infringement of resolved or decided upon. This is not only for evidentiary purposes. copyright but if it is not copyrighted, the act is simply plagiarism. More importantly, it allows litigants, lawyers and the public the oppor- Black also explains that “[t]o be liable for plagiarism, it is not neces- tunity to thoroughly review and scrutinize decisions if they are in ac- sary to exactly duplicate another’s literary work, it being sufficient if cordance with law. The public has to be aware and be informed of the unfair use of such work is made by lifting of substantial portion contents of these judicial decisions because, when they attain finality, thereof, but even an exact counterpart of another’s work does not they are integrated into our legal system and become part of the law of constitute plagiarism if such counterpart was arrived at independ- the land. Therefore, as regards any right, obligation or controversy ently.”* similarly situated with a decided case, judges and justices are mandated Plagiarism vs. Copyright Infringement to resolve them based on precedent following the doctrine of stare Plagiarism and copyright infringement are two closely-related decisis et quieta non movere, a Latin phrase meaning “stand by the terms in that the difference between them lies in whether the material decisions and disturb not what is settled.”* appropriated enjoys the mantle of protection conferred upon regis- Section 1, Article VIII of our Constitution provides that it shall be tration of copyright. As stated by Bast and Samuels, “[p]lagiarism the duty of the judiciary “to settle actual controversies, involving rights which are and copyright infringement are not coextensive, though the same legally demandable and enforceable, and to determine whether or not there has been copying can potentially give rise to both claims. As previously dis- a grave abuse of discretion amounting to lack of jurisdiction on the part of any cussed, plagiarism extends to the use of another’s words without branch or instrumentality of the Government.” On one hand, section 14 of the attribution, and even can extend to the use of another’s information same Article prescribes how members of the judiciary should write and ideas. While plagiarism is certainly an ethics violation, it their decisions, thus: “No decision shall be rendered by any court without ex- may or may not give rise to a criminal or civil action under the pressing therein clearly and distinctly the facts and law on which it is based.” Thus, copyright law. Copyright infringement is a legal wrong based judicial decisions should be in writing. on the theory that an author has a property interest in the au- The duty of settling actual controversies involves the task of inter- thored text. The copyright statute provides the author a legal remedy preting the Constitutional provision or law applicable thereto. As cor- against one who has infringed his rights. However, copyright protec- rectly observed by a newspaper columnist, our Constitution itself, sup- tion does not extend to facts or ideas, nor, as more fully explained posedly the supreme law of the land, is not even original.* The same below, does it protect a document in the public domain.”* can be said of our statutes. The irony of it, he says, is that no proper Moreover, in an article titled “Plagiarism and copyright”, a colum- attribution was made as regards the source of the copied provisions nist distinguished plagiarism from copyright violation as follows: and yet we do not call our Senators and Representatives “plagiarists”. First, copyright lasts only until 50* [now, 70] years Judicial Plagiarism/p.6 6 Court of Appeals Journal

When a judge or justice writes a decision and, in order to elucidate or As opined by J. J. George, “[j]udicial writings are not considered emphasize some points, copies passages or texts from other decisions original literary works; they are written to satisfy the adjudicative proc- or writings, should the magistrate be branded as a “plagiarist”? ess required of judicial officers in resolving particular cases. They are The situation of the magistrate in the case involving comfort not written for public consumption, in the traditional sense, as are women during the Second World War presents a novel issue relative to other writings.”* In his handbook, George wrote: this. While everyone is guaranteed the freedom to express an opinion Are judges free to copy from law review articles, briefs, on a particular matter, that situation is different since it is already legal periodicals, treatises or other literary works without pending before the Supreme Court. The sub judice rule restrains any giving attribution to the original author? If one answers this individual, more so an incumbent member of the judiciary, to discuss question [in] the affirmative[,] the conclusion to be drawn the matter in public. “Sub judice“ is a Latin phrase which means here is that the judge treats the copied works as his own. that when a legal matter or controversy has come under the jurisdic- While the judge may inadvertently do this, still it gives the tion of a court, nobody, including the press and other media should appearance that he is intentionally claiming the copied work interfere by publication or public clamor with the court's proper han- as his own. If one answers this question in the negative[,] the dling of the proceeding.* While jurisprudence is replete with cases conclusion to be drawn is that the judge must give attribu- involving copyright infringement, it is different when it comes to tion to the original author. Because the purpose of the plagiarism. Usually, when an author’s copyrighted work is copied judge's writing is to dispose of the case rather than produce without his consent, such author is provided ample remedy under an original literary work, the subtleties of literary writing are our Civil Code, R.A. 8293 and other related laws. The remedies avail- not scrupulously observed. able to an author range from the issuance of a restraining order, claim If it is assumed that a judge can commit plagiarism in a for damages, delivery of certain documents or materials for impound- judicial writing, at what point does the writing judge over- ment or destruction, as well as imprisonment and fine.* step what is acceptable copying and commit plagiarism? If it Under R.A. 8293, however, not all copying of copyrighted mate- is assumed that it is not possible for a judge to commit pla- rials are prohibited. An example of which is the “fair use” doctrine. giarism[,] he has no legal obligation to recognize the creator In his book, Fr. Aquino defines “fair use” as “a privilege in others of the copied work.* than the owner of the copyright to use the copyrighted material in a Indeed, “[t]here is no need for judicial writing to be original. A reasonable manner without his consent, notwithstanding the monop- judge’s job is to decide cases beyond on the most compelling argu- oly granted to the owner by the copyright.”* He adds that “[i]t is then ments in light of statutes and case precedent, and to explain the ration- no[t] correct to say that the only legitimate use of a copyrighted work ale underlying the decision in a clearly written opinion. The opinions is authorized use, for fair use is not per se authorized use (in the usually follow precedent or, if they do not, explain departures in light sense that authority has been conceded by the copying owner), but is of precedent, orienting their decision-making and writing towards past nevertheless lawful use.”* Citing a case, Aquino explains that the work. The judge is not expected to produce original scholarship.”* doctrine of fair use is meant to balance the monopolies enjoyed by Clearly, “the judicial borrowing of another’s writing without identify- the copyright owner with interests of the public and of society.* ing the source of the writing, a customary practice, is currently a gray Plagiarism in Judicial Writings? area in legal scholarship. Perhaps there is room for judicial re- In the case of judges and justices, judicial decisions are written education on this practice. Otherwise, judges risk being accused of precisely to settle actual controversies. These writings are not made judicial plagiarism.”* for literary or artistic purposes. They are supposed to serve as guide- Responsibility of Magistrates lines for future decisions not only for the consumption and benefit of Judges and justices are presumed to be fair, independent and the members of the judiciary but of litigants and their lawyers as well. competent in the performance of their regular functions, writing deci- Indeed, judicial writings are in a class of their own and should not be sions included. They are covered by a rule of conduct, particularly compared to literary or artistic writings. This should not, however, be A.M. No. 03-05-01-SC.* Judges and justices must be cautious of using cited to justify abuse on the part of judges and justices in copying an copyrighted sources, including case headnotes, which are not binding entire material or even portions thereof without making the proper authority and should not be cited.* Although there is doubt as to its attribution. illegality, the neglect or recklessness of judges and justices in copying On this point, the issue of judicial plagiarism arises. “Judicial these sources may erode public confidence in the judiciary. Section 8, plagiarism” is the copying of words or ideas first written down by Canon 1 of the New Code of Judicial Conduct for the Philippine Judiciary another judge, advocate, legal writer or commentator without giving holds that “[j]udges shall exhibit and promote high standards of judi- credit to the originator of that work.* It arises when judges author cial conduct in order to reinforce public confidence in the judiciary, opinions that employ materials from copyrighted sources such as law which is fundamental to the maintenance of judicial independence.” journals or books, but neglect to give credit to the author. In opinion Whether a source is copyrighted or not, whenever the same is copied writing – a form of writing in which use and citation to authority is to form part of a judicial decision, a judge or justice is ethically bound customary – the offense of plagiarism lies simply in neglecting to to make the proper attribution due the original author. Section 1, identify the source.* Judicial Plagiarism/p.26 Court of Appeals Journal 7

The procedure for change of name is governed by Rule 103 of registrar or the consul general, the petitioner may either the Rules of Court while that for cancellation or correction of entries appeal the decision of the civil registrar general or file the in the civil registry, by Rule 108 of the same Rules. appropriate petition with the proper court. (underscoring To answer the clamor of many to make the proceeding for cor- supplied) rection of mere clerical or typographical errors in the entries in the When this piece of legislation was still new, many posed this civil register, simple and less expensive, our law-making body enacted question: May the petitioner still opt to file a petition in court rather Republic Act 9048 entitled as an Act Authorizing the City or Munici- than avail of the administrative remedy provided thereunder? After pal Civil Registrar or the Consul General to Correct a Clerical or Ty- all, the petition may be turned down by the administrative officer and petitioner will go to court anyway in case of such eventuality. pographical Error in an Entry and / or Change of First Name or Stated differently, are the remedies under the Rules of Court and Nickname in the Civil Register Without Need of a Judicial Order. It Republic Act 9048 alternative that it is up to the petitioner to took effect on April 22, 2001. choose which will be availed of by him / her. The most salient feature of the said law is embodied in Section 1 This issue was finally laid to rest when cases calling for the thereof which states, viz, application of Republic Act 9048 were elevated to the Supreme “Authority to Correct Clerical or Typographical Error and Court. Change of First Name or Nickname -No entry in a civil regis- In the case of Silverio v. Republic (G.R No. 174689, October 22, ter shall be changed or corrected without a judicial order, 2007), the petitioner instituted before a regional trial court a peti- except for clerical or typographical errors and change of first tion for change of his first name as reflected in his record of birth, name or nickname which can be corrected or changed by the from Rommel to Mely, after undergoing sex change. In addition, he concerned city or municipal civil registrar or consul general in also prayed for the change of his sex as recorded in the civil register accordance with the provisions of this Act and its implement- from male to female. ing rules and regulations.” The application for change of first name as well as for change According to Republic Act 9048, the first name may be changed of sex was granted by the trial court. An appeal therefrom was and clerical or typographical errors in the entries in the civil register taken by the Office of the Solicitor General to the Court of Ap- may be corrected by mere administrative proceeding. The petitioner peals where the case was disposed of in favor of the State. Silverio need not file a petition in court for the purpose unless the petition is challenged the reversal of the RTC's decision by the Court of Ap- denied by the concerned local civil registrar. peals with the Supreme Court. The High Court affirmed the judg- Section 7 thereof provides, thus – ment of the Court of Appeals. “Duties and powers of the Civil Registrar General – The In rejecting the petitioner's prayer for change of first name, the civil registrar general shall, within ten (10) working days from Supreme Court, inter alia, instructively held that with the primary receipt of the decision granting a petition, exercise the power jurisdiction being now lodged with the city or municipal civil regis- to impugn such decision by way of an objection based on the trar over petition for change of first name under Republic Act following grounds: 9048, what the petitioner should have done is to file first the appro- The error is not clerical or typographical; priate application with the corresponding city or municipal registry, The correction of an entry or entries in the civil register and not file a petition immediately and directly with a court of jus- is substantial or controversial as it affects the civil status of a tice. person; or The same rule applies to Rule 108 on cancellation or correc- The basis used in changing the first name or nickname tion of entries in the civil registry. of a person does not fall under Section 4 Before the effectivity of Republic Act 9048, mere harmless, x x x innocuous or clerical errors in the entries in the civil register such as The petitioner may seek reconsideration with the civil misspelling or those which are visible to the eye or obvious to un- registrar general or file the appropriate petition with the derstanding may be changed or corrected under Rule 108 of the proper court. Rules of Court which entails a summary proceeding. Under the If the civil registrar fails to exercise his power to impugn then prevailing jurisprudence, material or substantial corrections or the decision of the city or municipal civil registrar or of the those that affect one's civil status, citizenship or nationality of a consul general within the period prescribed herein, such deci- party cannot be corrected by summary action under Rule 108. And sion shall become final and executory. if they are filed as petition under Rule 108, the requirement is that Where the petition is denied by the city or municipal civil RA 9048/p.35 8 Court of Appeals Journal

Introduction cessful bar examinees is released. The practice of law is a noble profession --- a most treasured First, the members of the Committee of Bar Examiners are aphorism, indeed. So noble that admission to the profession is given carefully chosen by the Supreme Court on the basis of skill, profes- high importance and celebrated with such extraordinary attention. sional competence, academic record and time availability. The Lawyers, after all, pride themselves of having dedicated years to the Chairman, by tradition, is a Supreme Court Justice. The relationship study of law and ultimately, of having survived the bar examinations. between and among the members and the Chairman of the Com- Underlying this enviable sense of pride is a lawyer’s consciousness mittee of Bar Examiners is at once intimate and confidential. that he has the requisite competence and skill to take on the demands Once the bar examiners had been selected and qualified, the of the profession. Such competence and skill are hoped to be devel- next crucial step is the preparation of bar exam questions. The oped through formal legal education and are sought to be measured choice of the questions that will appear at the bar examinations through the bar examinations. involves a process in itself. The bar examiners individually formu- Education and examination, therefore, are equal conduits to a late a set of questions which they shall then submit to the Chairman fruitful law profession. Be that as it may, much emphasis is placed on for evaluation and approval. While the bar examiners initially pre- the latter as it is the proverbial final barrier which every bar candidate pare the questions, the Chairman has the final authority to concur, is required to overcome. reject or even substitute the proposed questions. To say, however, that the bar examinations is the concluding Because of the policy of strict confidentiality and for security measure of a candidate’s worth to be admitted to the practice of law is purposes, the bar examiners themselves are kept from knowing far from accurate. I proceed with the supposition that the bar exami- which questions shall actually appear at the bar examinations. Thus, nation does not purport to be an all-encompassing test as, for obvious the questions appearing at the bar exams is not only reflective of the reasons, it could not possibly measure a candidate’s skill in oral com- quality of the bar examiners, but likewise, the competency and in- munication, investigation, negotiation, consultation with clients, legal dustry of the Chairman. research and advocacy, among others. Third, after every examination for each bar subject, the ques- As it is, the bar examinations can only approximate skills as identi- tions are given to the UP Law Center and to the law school deans, fying legal issues, applying laws to given facts and writing in a compre- professors, lecturers and reviewers for their suggested answers. hensive and logical manner – skills which are nonetheless essential to From a variety of equally plausible answers, the best answer is then successful lawyering. Imperfect as it may be, the bar examinations chosen to serve as the guide in the correction of the exam papers. remain to be a complimentary tool in assessing a candidate’s ability to Fourth, the bar examiners proceed with the laborious task of later on perform the duties and responsibilities of a lawyer. manually checking the exam papers. In the checking process, the Bar Examinations in the Philippines bar examiners are guided by certain milestones and are limited by The Philippine bar examinations is the only licensure exam that is strict deadlines. To keep track of their progress, the bar examiners not supervised by the Professional Regulation Commission as the ad- are further required to submit weekly reports to the Chairman. As ministration thereof rests exclusively in the Supreme Court pursuant to in every step involved in the totality of the bar examinations, the the latter’s Constitutional authority to promulgate rules concerning checking of the exam papers is held in confidence and imbued with pleading, practice, and procedure in all courts, the admission to the anonymity to prevent leakage and preferential correction. practice of law and the Integrated Bar.* Fifth, the grades are submitted to the Chairman for evaluation. The Philippine bar examinations is believed to be one of the most Although the passing percentage is said to be “fixed” at 75%, the difficult in the world considering the low national bar passing rate* of Supreme Court, in several bar examinations, had lowered the pass- 20%-30%, the now fixed passing average of 75% with no grade lower ing percentage in the exercise of its supervisory and regulatory func- than 50% in any subject, the three-failure rule* and the five-strike rule.* tion over the conduct of the bar exams. The Committee of Bar Examiners, the members of which are Lastly, after due deliberation, the Office of the Bar Confidant appointed by the Supreme Court, is tasked to formulate and execute of the Supreme Court releases the official list of successful bar ex- policy directives and procedures, formulate questions for the bar ex- aminees. ams, grade bar examination papers and release the results of the exams The traditional essay-type bar exams thereafter. The bar examination covers the following bar subjects: Political A tedious process thus ensues from the appointment of the Com- and Public International Law, Labor and Social Legislation, Civil mittee of Bar Examiners up to the time when the official list of suc- Law, Taxation, Mercantile Law, Criminal Law, Remedial Law and * Citations omitted due to lack of space. Legal Ethics and Practical Exercises. The traditional format for the Court of Appeals Journal 9 bar exams is essay-type questions wherein bar candidates are given a of an examiner to the rigors of manual correction. An examiner may set of questions for each bar subject. The candidates are then ex- have varying levels of attentiveness and interest to the exam paper pected to analyze the facts and apply the correct law in resolving the he/she is correcting. An examiner’s mood may thus affect, adversely issue or problem presented. Bar candidates are given four (4) hours or favorably, the appreciation of a candidate’s answer. In essence, the for the morning bar subjects and three (3) hours for the afternoon bar examinations carrying essay-type questions are plagued with human bar subjects to take the exam. This essay-type exam has become the inconsistencies. traditional presentation of questions in the bar. The above observations are but a few of the criticisms hurled Traditionally, also, only one bar examiner is tasked to formulate against the essay-type of bar exams. Considering that the legal commu- questions and grade the exam papers for every bar subject. Until nity is not prepared to abolish the bar exams altogether, reforms recently, the Supreme Court adopted a resolution* designating two thereto are continuously being introduced. (2) examiners per bar subject. Each bar subject was divided into two Recently, Justice Roberto A. Abad spearheaded the proposed re- (2) parts: Part I and Part II, and each bar examiner was assigned a forms in the bar examinations to be applied for the 2011 and succeed- specific scope from which to formulate his/her questions. The ex- ing bar examinations. Of particular interest is the proposed multiple- amination booklet is divided into two (2) parts, marked as Part I and choice type of questions for the bar exam, a significant departure from Part II, where the answers are to be written corresponding to Part I the traditional essay-type of questions. and Part II of the questionnaire, respectively. The two (2) examiners Proposed Changes shall review and correct his/her respective part of the examination. Multiple Choice Questions Notwithstanding the two-examiner per bar subject change in Multiple-choice questions are not new in the bar examinations as the bar examinations, the type of questions remain to be in its tradi- several States have adopted this test for admission to the bar. In the tional essay-type form. Philippines, however, the 2011 bar examinations will be the first to Criticisms to the Essay-type Bar Exam include a significant number of multiple-choice questions. Though the bar examination continue to be largely essay-type, Multiple-choice questions have several advantages. Given its for- with a modest sprinkling of enumeration and objective-type ques- mat, a multiple-choice type of exam increases the scope of topics for tions, this does not mean that the legal community and members of each bar subject. The exam may cover a broader base for each bar the academe are content with its current format. subject as the number of multiple-choice questions may simply be in- Much of the discontent with the essay-type of questions spring creased to include more topics. from the difficulty, if not the impossibility, of covering all of the top- Despite the increase in the number of questions, a multiple-choice ics for each bar subject and to condense the same in ten (10), maybe exam is still easier to correct compared to essay-type questions. In- even less, number of questions. To cover most of the topics, bar stead of correcting the exam papers manually, a scanning machine will examiners are often constrained to ask questions dotted with sub- be used thereby reducing the subjectivity and tediousness of correcting questions or to increase the number of questions and minimize the essay-type questions. points corresponding to each. On the other hand, bar candidates are However, more important than the above observations is the fea- forced to review the long list of topics covered and then guess which sibility of using multiple-choice questions to measure an examinee’s ones would appear in the exams. In these 10 or so questions, the knowledge of the law and his ability to recall the same, his understand- candidates are expected to impress the examiner with their strategy, ing of the law and his analysis of legal problems.* critical thinking and memory. According to Justice Abad, a multiple-choice question can meas- Answering essay-type questions is also time-exhaustive because ure three (3) competencies: (1) knowledge and recall, (2) understand- the candidates are not only expected to provide the correct answers, ing and (3) analysis and solution. but equally so, to present them in a logical and organized manner. To be sure, a multiple-choice question, given its straightforward Reviewing and correcting the bar exam papers is similarly time- presentation, can measure an examinee’s knowledge of the law and exhaustive as each bar examiner is given the herculean task of cor- his/her memory. A multiple-choice question can elicit from the exami- recting some 5,000-6,000 booklets in a span of five (5) to six (6) nee his/her knowledge on a very specific law or legal principle by sim- months. ply asking “what”-type of questions. Over and above the logistics concern is the manner by which To measure understanding, on the other hand, the presentation of essay-type questions are reviewed and corrected. As earlier ex- a multiple-choice question should be more creative and less straightfor- plained, the exam papers are manually corrected, thus the candidates’ ward to allow the examinee to relate a simple set of facts to the applica- answers are subject to the examiners’ appreciation. While every ex- ble law or legal principle. aminer has immaculately prepared a set of questions and answers, To measure a higher level of critical thinking, multiple-choice idiosyncratic views in assessing the quality of the answers may come questions may also be used but this time, the question is actually a into play. In other words, an examiner’s subjective interpretation, problem requiring analysis and a proposed solution. In this sense, a rather than objective review, plays a significant role in the correction multiple-choice question is a mini-essay type question only that the of the exam papers. examinee is made to choose the correct answer rather than articulate Compounding this innate subjectivity is the inevitable exposure Reforms in 2011 Bar Exams/p.10 10 Court of Appeals Journal his/her own. of question measures different aspects (i.e., knowledge of the law and Multiple-choice questions versus Essay-type questions lawyering skills) equally necessary for effective lawyering, the question Admittedly, a well-structured multiple-choice question can now shifts as to how the reformed bar examinations shall be prepared measure not only an examinee’s knowledge of the law but his/her and how the legal community should adjust in preparation for the analytical thinking. However, to be able to measure a candidate’s eventual implementation of the proposed changes. knowledge and analysis, it is imperative that the examiner knows, Coping with the changes foremost, how to prepare an effective multiple-choice question. One significant aspect in the preparation of the reformed bar ex- With the proposed change, the examiner’s responsibility to formu- aminations is the percentage to be allotted to the multiple-choice ques- late multiple- choice questions with the objective of measuring tions vis-á-vis the essay-type questions. Announcements had circulated knowledge of the law and analytical skills becomes more pro- that sixty percent (60%) of the bar examination shall be allotted to nounced. The multiple-choice questions must have technical quality multiple choice questions, while the remaining forty percent (40%) to to be effective. essay-type questions. Preparing the multiple-choice questions is perhaps the easier The introduction of multiple-choice questions in the bar examina- part. If an examiner had successfully prepared his/her questions, the tions is at its very early beginnings and to stress, had never been imple- focus now shifts to the examinee and how he/she will answer the mented in Philippine bar examinations. To allot more than fifty per- question. cent (50%) of the bar examinations to multiple-choice type of ques- Unlike an essay-type question, multiple-choice questions would tions at its introductory stage is very risky as the effectivity thereof necessarily limit the answer to three (3) or four (4) options with only remains uncertain. one (1) correct choice. As a necessary consequence of such limited Instead of appropriating considerable weight to multiple-choice choice of answers, an examinee’s strategy and approach to the prob- questions this early, the number thereof should be increased gradually lem is likewise limited. A multiple-choice question leaves no room to allow objective evaluation. In this manner, assessment and evalua- for creativity in the formulation and presentation of the answer as tion on whether the multiple-choice questions are indeed effective in the examinee is merely tasked to select a choice which appears to be Philippine bar examination may be made after each bar examinations. the most appropriate resolution for the problem. Similarly, a gradual increase will allow a close approximation of how Also, a multiple-choice question does not provide for alterna- the reformed bar examinations is received by the legal community, tives as there is, in every case, only one correct answer. This might especially by the ones having the most interest and involvement, i.e., be very appealing for the examiners as there can be no difficulty in law schools and law students. correcting and no allowance for prejudice, but may be constraining Considering also that the reformed bar examinations is a mix of for the examinees as there can be no “ifs” and “buts” in their an- multiple-choice and essay-type questions, the weight given to multiple- swers. The examinees are not given the chance to qualify their an- choice questions versus essay-type of questions should be seriously swers which, if allowed, may yield an equally plausible solution to the considered. The ability to organize thoughts and to translate the same problem thus presented. using effective and grammatically-correct English is arguably more Likewise, a multiple-choice question cannot measure an exami- important than memorization skills and guessing games in multiple- nee’s communication skills. In contrast, essay-type questions give an choice questions. Thus, the percentage allotted to multiple-choice examinee wide latitude to make a balanced analysis of a problem and questions and essay-type of questions should be apportioned accord- to translate the same into a well-composed answer. ingly, with the latter bearing more weight. Thus, a multiple-choice question, by its nature, can only measure More importantly, professors and students of law, who have the an examinee’s knowledge of the law but cannot predict an examinee’s most interest in the bar examinations, should first be convinced and effectiveness as a future lawyer. Rarely will a lawyer encounter a mul- that a multiple-choice question is a better alternative to a purely essay- tiple-choice problem in practice as job-related skills such as effective type bar examination. arguing and writing are considered more paramount. To convince the teachers and the students, they should first be Realizing that a multiple-choice type of bar examination is not made to understand how a good multiple choice question is prepared an all-encompassing measure of a candidate’s fitness to be admitted and how to answer the same. If there should be any resistance to the to law practice, the proposed reform for the 2011 bar examinations proposed change, the resistance may come partly from lack of informa- did not do away with the essay-type questions. tion and understanding. Given the individual style and preference of In addition to the multiple-choice questions, the bar examina- examiners, law school teachers, reviewers and students, it is necessary tion will continue to give essay-type questions to the examinees to that they first believe that the proposed change will bring about im- measure the latter’s lawyering skills with emphasis on the ability to provements, rather than add confusion, to the current format of the synthesize relevant facts and to construct arguments. However, bar examinations. unlike the traditional essay type questions, an examinee’s answer will Specific Coverage not be given credit for a technically right or wrong answer but for The less controversial change in the bar examinations is the out- the quality of the examinee’s legal advocacy.* Considering that a multiple-choice question and an essay-type Reforms in 2011 Bar Exams/p.11 Court of Appeals Journal 11

Reforms in 2011 Bar Exams...from p. 10 Wallpaper No More...from p. 2 line-type presentation for the coverage for the bar examinations. At same will feature a friendly lane for visitors, “in” and “out” present, the coverage is presented by merely enumerating the laws lanes for the employees, a lounge for employee visitors in the included in the bar subject. In the proposed change, the topics and space fronting the cashier’s, and steel doors to avoid sub-topics for every bar subject shall be spelled out thus eliminating “moonlighting” by outsiders. The ATM and/or room-to-room general descriptions. It is projected that through an outline-type delivery of salaries will also be implemented not only for presentation of the bar exam coverage, “alien” or “out-of-this-world” security reasons but also for the comfort of the employees questions would no longer find their way into the exams. who need no longer endure the long queue just to get their While the coverage of the bar exams may become more detailed pay. On second thought, why spoil the surprise by when specifically outlined, the appearances of “strange questions” in enumerating the changes that are soon to come? Let’s just say the bar exams cannot be totally eradicated. As earlier noted, the for- that there are many things to look forward to. mulation, preparation and approval of the final set of bar questions is The (continuing) winds of change . . . a process on its own. So long as the bar questions are manually pre- Back in September 15, 2008, the opening of the CA One pared, it will always be subject to the peculiarities of the bar examin- Stop-Processing Center brought untold positive changes in ers and the individual style and preference of the Chairman. the court. Basic public frontline functions were It is hoped, however, that the committee tasked to prepare a consolidated and streamlined. Consequently, unnecessary proposed coverage for the 2011 bar examinations will pinpoint basic vehicle movement inside the court premises, the entry of “alien law principles which are actually taught in law schools and which are visitors”, and violations of the no-loitering and the no-ID rules of use to would-be law practitioners, bearing in mind that the pro- were minimized. In a word, entry to the court’s premises posed coverage is not only an obscure list but must also serve as a was no longer lenient. After all, 9/11 or the Luneta incident strong recommendation to the Committee of Bar Examiners to pat- happens only once and they must be prevented. Pro-active and tern their questions to the topics covered. not reactive measures needed. Conclusion To facilitate easy ingress to and egress from the court, the With the proposed changes to be implemented, the bar examina- security group took upon itself, with PNP assistance, the tions in 2011 will be an experimental bar exams. As in all changes, manning of traffic along U.N. and Ma. Oroso Streets, as well as reforms in the bar examinations will be perceived with doubt and will the enforcement of a “no-triple-lane-parking” policy along be received in uncertainty. Much of the doubt is spawned by lack of Arkansas Street. consultation with law school deans, professors, reviewers, lecturers In August 2010, two bomb threat calls were received by and students, who were caught unguarded by the proposed changes. the court. Thankfully, the threats remained as such, hoaxes. The proposed changes, to stress, are still at its experimental Nonetheless, the same saw the holding of the Bomb Threat & stage and if successful, will probably be included on an operational Disaster Management seminar on August 19, 2010.* A full- basis. To cope with the proposed changes, several adjustments must time PNP bomb technician was also added to the four necessarily be accomplished in a short span of time. Adjustments in policemen already detailed to guard the ramparts of Ma. Orosa. a law school’s curricula should be made, giving more emphasis to In a job that involves itself in restricting the liberty of the analysis (for the multiple-choice questions) and legal writing (for the people through gate control, bomb check, and bag or body essay-type questions). The teachers’ approach in the presentation of search, the duties of the security group is not an easy or a subject and in the preparation of classroom examinations will also exciting task. Criticisms, therefore, did not come as a surprise. change as the school environment will mimic what the examinees The grumble, the eye-rolling, and the haughty laughs of some face in actual bar examinations. Law students will also change the employees, however, did not deter the members of the security way they answer questions, not only in the manner but also in strat- group, mindful as they are of their mandate, that is, security egy and speed. work must not be trivialized. Simply stated, for the physical Nonetheless, changes in the bar examinations are welcome be- security of our CA community and for the dignity-uplift of our cause it is a part of the continuing effort towards a more accurate court premises, with the indispensable support of all, a more measure of competency and skill of a future lawyer. Confusing professionalized security group is an imperative. changes that only disturb rather than promote efficient bar examina- Members of the security group must therefore continue to tions should be revisited, while changes which are well-received toil and serve with vigor, if not show patriotism to an avowed should thereafter be institutionalized. But before changes are institu- duty. Looking at them, now smarter, snappy, and sporting tionalized, it should first undergo a process of experimentation, Spartan discipline, one can never be prouder. Indeed, the CA evaluation and, eventually, acceptance. security group have come a long way . . . a wallpaper no more. * P/C Inspector Selverio Dollesen, Chief, Special Project Section, Philippine Bomb Data Center; Guest Speaker for the August 19, 2010 Seminar. - Additional information on Bomb Threat and Disaster Management is available at the Office of the Assistant Clerk of Court. 12 Court of Appeals Journal

Mercantile Law is one of the most perplexing branches of law mies to circumvent the requirements of the law. (Soriano vs. People of the that is difficult to understand because of its ramifications and all Philippines,G. R. No. 162336, February 1, 2010) encompassing area of coverage. Keeping ourselves abreast of the (Act 3135 as amended) Two-bidder rule in foreclosure sale no updates and developments in this subject area is a must, especially longer applies: for Us who are in the judiciary. Monitoring this development plays a Supreme Court Circular 7-2002 dated January 22, 2002 no longer vital and enormous role in our task of dispensing justice. Here are prescribes the requirement of at least two bidders for a valid auction some pertinent recent rulings of the Supreme Court on commercial sale. The use of the word “bids” (in plural form) does not make it a law: mandatory requirement to have more than one bidder for an auction Truth in Lending: sale to be valid. A.M. No. 99-10-05-0, as amended, no longer pre- Financial charges are amply disclosed if stated in the promis- scribes the requirement of at least two bidders for a valid auction sale. sory note. They need not be indicated in a separate disclosure docu- (Certeza et al., vs. Philippine Savings Bank, G. R. No. 190078, March 5, ment. Nonetheless, the courts have the authority to reduce penalty 2010) charges when these are unreasonable and iniquitous. Considering Trademark: that the bank had already received over P2.7 million in interest and Tradename, unlike trademark, need not be registered. Tradename that it seeks to impose the penalty charge of 3% per month or 36% is acquired through use. Thus, the owner can sue for infringement of per annum on the total amount due – principal plus interest, with tradename, despite non-registration thereof, if the same is being used interest not paid when due added to and becoming part of the prin- by another without the owner's consent. (Coffee Partners vs. San Fran- cipal and also bearing interest at the same rate, the Court finds as cisco Coffee and Roastery, G. R. No. 169504, March 03, 2010) and valid the the ruling of the Regional Trial Court in its original Carriage of Goods by Sea Act (COGSA): liability of carrier. decision reducing the penalty to 12% per annum. (Bank of the Philip- It is to be noted that the Civil Code does not limit the liability of pine Islands vs. SPS. Norman and Angelina Yu and Tuanson Builders Corp., the common carrier to a fixed amount per package. In all matters not G.R. No. 184122, January 20, 2010) regulated by the Civil Code, the rights and obligations of common Violation of the Director, Officer, Stockholder or Related In- carriers are governed by the Code of Commerce and special laws. terest (DOSRI) Rules (DOSRI Rules) in case a bank officer Thus, the COGSA supplements the Civil Code by establishing a pro- secures a loan using the name of another per- vision limiting the carrier’s liability in the absence of a shipper’s decla- son/nominee/dummy: ration of a higher value in the bill of lading. There can be a charge for DOSRI violation in such a situation In the present case, the shipper did not declare a higher valuation wherein the accused bank officer did not secure a loan in his own of the goods to be shipped. name, but was alleged to have used the name of another person in In light of the foregoing, petitioner’s liability should be limited to order to indirectly secure a loan from the bank. The prohibition $500 per steel drum. In this case, as there was only one drum lost, under the DOSRI regulation is broad enough to cover various private respondent is entitled to receive only $500 as damages for the modes of borrowing. It covers loans by a bank director or officer loss. In addition to said amount, as aptly held by the trial court, an which are made either: (1) directly; (2) indirectly; (3) for himself; (4) interest rate of 6% per annum should also be imposed, plus 25% of the or as the representative or agent of others. It applies even if the total sum as attorney’s fees. (Unsworth Transportation International director or officer is a mere guarantor, indorser or surety for some- (Phils.), Inc. vs. Court of Appeals and Pioneer Insurance and Surety Corpora- one else's loan or is in any manner an obligor for money borrowed tion, G.R. No. 166250, July 26, 2010) from the bank or loaned by it. The broad interpretation of the pro- Corporation sole: conversion into corporation aggregate. hibition under the DOSRI rule is justified by the fact that it even A corporation may change its character as a corporation sole into expressly covers loans to third parties where the third parties are a corporation aggregate by mere amendment of its articles of incorpo- aware of the transaction (such as principals represented by the ration without first going through the process of dissolution. DOSRI), and where the DOSRI's interest does not appear to be True, the Corporation Code provides no specific mechanism for beneficial even burdensome (such as in cases when the DOSRI acts amending the articles of incorporation of a corporation sole. How- as a mere guarantor or surety). If the law finds it necessary to pro- ever, Section 109 of the Corporation Code allows the application to tect the bank and the banking system in such situations, it will surely religious corporations of the general provisions governing non-stock be illogical for it to exclude a case like this where the DOSRI acted corporations. for his own benefit, using the name of an unsuspecting person. A For non-stock corporations, the power to amend its articles of contrary interpretation will effectively allow a DOSRI to use dum- incorporation lies in its members. The code requires two-thirds of Court of Appeals Journal 13 their votes for the approval of such an amendment. So how will this not detract from the duty of the bank to exercise extraordinary dili- requirement apply to a corporation sole that has technically but one gence. Thus, the Decision of the RTC, as affirmed by the CA, holding member (the head of the religious organization) who holds in his respondent bank liable for moral damages is sufficient to remind it of hands its broad corporate powers over the properties, rights, and its responsibility to exercise extraordinary diligence in the course of its interests of his religious organization? business which is imbued with public interest. (Vicente Go vs. Metropoli- Although a non-stock corporation has a personality that is dis- tan Bank and Trust Co., G.R. No. 168842, August 11, 2010) tinct from those of its members who established it, its articles of Manager's check made payable to cash: incorporation cannot be amended solely through the action of its Where a manager's check, made payable to “cash” and appearing board of trustees. The amendment needs the concurrence of at least regular on its face, was presented to another bank that immediately two-thirds of its membership. If such approval mechanism is made honors it – no fault may be attributed to such bank in relying upon to operate in a corporation sole, its one member in whom all the the integrity of the check, even payment thereon was later ordered powers of the corporation technically belongs, needs to get the con- stopped by the drawer bank on the ground that the one who en- currence of two-thirds of its membership. The one member, here cashed the check was actually not the intended payee. (Security Bank the General Superintendent, is but a trustee, according to Section and Trust Co. vs. Rizal Commercial Banking Corp., 577 SCRA 407) 110 of the Corporation Code, of its membership. Death of stockholder does not ipso facto make his heirs stock- There is no point to dissolving the corporation sole of one holder of the corporation: member to enable the corporation aggregate to emerge from it. Upon the death of a shareholder, the heirs do not automatically Whether it is a non-stock corporation or a corporation sole, the become stockholders of the corporation and acquire the rights and corporate being remains distinct from its members, whatever be privileges of the deceased as shareholder of the corporation. The their number. The increase in the number of its corporate member- stocks must be distributed first to the heirs in estate proceedings, and ship does not change the complexion of its corporate responsibility the transfer of the stocks be recorded in the books of the corpora- to third parties. The one member, with the concurrence of two- tion. During such interim period, the heir stand as the equitable own- thirds of the membership of the organization for whom he acts as ers of the stocks. Even if the heir presents sufficient evidence to es- trustee, can self-will the amendment. He can, with membership tablish that he is the son of the deceased stockholder, he would still concurrence, increase the technical number of the members of the not be allowed to inspect respondent's books, receive dividends or corporation from “sole” or one to the greater number authorized by vote the shares, absent any showing in its transfer book that the its amended articles. (Iglesia Evangelica Metodista En Las Islas Filipinas shares owned by the deceased stockholder were transferred to him. (IEMELIF), Inc., et al. vs. Bishop Nathanael Lazaro, et al., G.R. No. (Puno vs. Puno Enterprises, G.R. No. 177066, Sept. 11, 2009) 184088, July 6, 2010) Foreclosure: Crossed check: liability of bank for lack of indorsement. Subsequent attaching creditor of a personal property subject of Respondent bank was negligent in permitting the deposit and chattel mortgage is not entitled to a ten day notice prior to the sale. encashment of the crossed checks without the proper indorsement. He is only entitled to equity of redemption, that is, the right to re- An indorsement is necessary for the proper negotiation of checks deem the property before the holding of the sale. (RCBC vs. Royal specially if the payee named therein or holder thereof is not the one Cargo Corp., G.R. No. 179756, October 2, 2009) depositing or encashing it. Knowing fully well that the subject Another significant development in Mercantile Law is the enact- checks were crossed, that the payee was not the holder and that the ment of Republic Act No. 10142, otherwise known as "Financial checks contained no indorsement, respondent bank should have Rehabilitation and Insolvency Act (FRIA) of 2010", which lapsed taken reasonable steps in order to determine the validity of the rep- into law on July 18, 2010. The FRIA expressly repealed the Insol- resentations made by Chua. Respondent bank was amiss in its duty vency Law (Act No. 1956) as amended, and impliedly repealed, to the as an agent of the payee. Prudence dictates that respondent bank extent that they are inconsistent with the provisions of the Act, all should not have merely relied on the assurances given by Chua. other laws, orders, rules and regulations. Negligence was committed by respondent bank in accepting This breakthrough in legislation makes available three modes of for deposit the crossed checks without indorsement and in not veri- rehabilitation: court-supervised rehabilitation, pre-negotiated rehabili- fying the authenticity of the negotiation of the checks. The law im- tation, and out of court or informal restructuring agreements or reha- poses a duty of extraordinary diligence on the collecting bank to bilitation plans. The FRIA is significant because it covers the rehabili- scrutinize checks deposited with it, for the purpose of determining tation of sole proprietorships, partnerships and corporations, pro- their genuineness and regularity. As a business affected with public vides the legal basis for our procedural rules on corporate rehabilita- interest and because of the nature of its functions, the banks are tion (the latest of which is A.M. No. 00-8-10-SC, promulgated by the under obligation to treat the accounts of its depositors with meticu- Supreme Court en banc on December 2, 2009, and took effect on lous care, always having in mind the fiduciary nature of the relation- January 16, 2009), and consolidates the laws on insolvency and reha- ship. The fact that this arrangement had been practiced for three bilitation. years without Mr. Go/Hope Pharmacy raising any objection does 14 Court of Appeals Journal

ate Justice of the Court of Appeals. As it is in every successful woman, behind her is a very supportive and loving family. She is married to Atty. Teodorico P. Fernandez, a practicing lawyer and a civil leader. They are blessed with four (4) beautiful children namely Hers, Justice Myra V. Garcia-Fernandez, is a Patricia, Katherine, Melissa and Thea. life that reflects the continuous pursuit of excellence. Indeed, the list of her achievements and awards is virtually It was her school teachers who first saw in endless. They sum up her more than two (2) decades of de- her the promise of prominence and distinction. voted and excellent public service. She maybe a woman of The young Myra graduated as Salutatorian in elementary and diminutive physique but certainly her contributions to the Ju- Valedictorian in high school. These accomplishments diciary is nothing but grand and impressive. proved to be not mere streaks of luck, for in later years, on a Justice Myra Fernandez deserves the accolade and gratitude of the much bigger ground, she again graduated with honors. The Judiciary and the Filipino people! University of Santo Tomas bore witness as she received her di- plomas for her degrees in Bachelor of Arts, Philosophy and Bache- * * * lor of Laws, both as a cum laude. This was not to be the zenith Prior to his promotion to the Court of Ap- of her academic success. In 1987, she hurdled yet another peals in 2010, Justice Eduardo B. Peralta, Jr. feat, i.e. passing the Bar on the first examination. was the Executive Judge of the Regional Trial True to the promise of her academic achievements, she Court, Manila. In the course of his almost eight rose to become a prominent bank lawyer, legal assistant, pro- year’s stint from 2002 as the Presiding Judge of Branch 17, fessor, Judge and Associate Justice of the Court of Appeals. RTC, Manila, he was chosen as the Outstanding Judge of Her positive stint in the Supreme Court paved the way to her RTC Manila on June 19, 2008 during the 437th Anniversary of promotion as Judge of the Metropolitan Trial Court, Branch Araw ng Maynila. Justice Peralta, Jr. has been a consistent 10, Manila in 2000. Despite her youth, she became the nominee during the Annual Search for Judicial Excellence Executive Judge, with thirty (30) other branches to supervise. from 1998, 2001, 2003 to 2008 and finalist in 2009. Before It was during this time when she also served as Acting Presid- his appointment to the Court of the Second Level, and de- ing Judge of two (2) more branches of MeTC Manila. Her spite his young age of 32, he was appointed in 1995 as the extra-ordinary performance caught the attention of the Judicial Presiding Judge of the Metropolitan Trial Court, Branch 13, Excellence Awards. In 2003, she was hailed as the Best Pre-Trial Manila where he also served as the First and Second Vice- Judge for MeTC, and in 2004, an Outstanding MeTC Judge. Executive Judge. She also took home the Special Award for Best Decision in a As a fresh graduate of the San Beda College of Law in Civil Case that same year. Many more organizations followed 1988, Justice Peralta, Jr.’s government service commenced in suit. 1989 as the Confidential Attorney and Court Attorney of Jus- Only four (4) years have passed and she received another tice Jose A. R. Melo in the Court of Appeals and the Su- well-deserved promotion as Judge of the Regional Trial Court, preme Court from 1989 to 1995. Branch 18, Manila. Despite being the Acting Judge of two (2) In addition to his fidelity to judgeship, Justice Peralta, Jr. other branches and a member of eight (8) Supreme Court was the First Graduate in the masteral degree program of the committees, she was able to maintain a low caseload in her San Beda Graduate School of Law in 2005 with cum laude for branch. A Judge of lesser mettle would have succumbed to the his legal treatise on Perspectives of Evidence. He also au- demands of work. But our awardee is different. A prolific thored other law books, and pursued doctorate degree in the decision writer and efficient Judge she is, but an industri- University of Santo Tomas, Manila, where he garnered a flat ous and active office administrator she is even more. 1.00 grade in all his academic subjects, inclusive of foreign Above everything else though, what sets Justice Myra languages, from 2006 to 2008. Apart from his involvement apart from the others is her searing devotion to judicial re- as professorial lecturer in the Angeles University School of forms. She had worked hard for the refinement of the rules Law, Centro Escolar University School of Law, San Beda on pre-trial and summary procedure. As member of the Com- College of Law, San Sebastian College of Law and Lyceum mittee on Judicial Reforms, she drafted the forms of orders, School of Law, occasional MCLE and Bar Lecturer, and Re- decisions, notices, processes and writs which are being issued source Person in legal fora, he is in the process of collating his by first level courts in civil and criminal cases. She was also a materials for the DCL dissertation. member of the Technical Working group which drafted the Justice Peralta, Jr. is a Junior Member of the 20th Divi- Rules of Procedure for Small Claims Court. She has been a sion, a participant in the Sub-Committee on the Revision of resource person for various topics, travelling around the coun- the Rules on Criminal Procedure of the Supreme Court since try to educate not only her fellow judges but also the public. She kept herself up to the task by attending training and semi- 2009, and is married to Atty. Caroline G. Ocampo-Peralta, nars and taking up courses here and abroad. Executive Clerk of Court III of the Court of Appeals, Ma- Her most recent achievement is her promotion as Associ- nila. Court of Appeals Journal 15

* * * * * * Justice Ramon Paul Hernando y La- Associate Justice Nina G. Antonio- yugan is a native of Tuguegarao City, Cagayan. Valenzuela was born on 3 December 1963, in He finished primary schooling at the Tuguegarao Pasay City. She is the eldest of three daughters of East Central School in 1978 and earned his di- the late Atty. Clemente E. Antonio (of Lamitan, ploma in high school from St. Louis College of Tuguegarao Basilan), and Dr. Natividad Q. Geluz-Antonio, M.D. (of City in 1982. He then enrolled for college at the University of Imus, Cavite). Her early education began at home where her Sto. Tomas and completed the degree of Bachelor of Arts in parents instilled in her traits of honesty, industry, frugality, English in 1986. In 1990, he gained his Bachelor of Laws de- respect for God, and respect for others. The dictum at home gree from San Beda College of Law. was “Be good, even when no one is looking”. Prior to his elevation to the Court of Appeals as an Asso- Formal education began with the Filipino and German ciate Justice on February 16, 2010 at the age of 43, Justice Her- nuns at the St. Scholastica’s College, Manila, where she was a nando was a trial court judge for close to seven years. He was consistent honor student, and a bemedalled declaimer in both Executive Judge of the Regional Trial Court (RTC) of San English and Filipino. Without attending 7th Grade at the St. Pablo City, Laguna from 2003 to 2006 and Presiding Judge of Scholastica’s, she took and hurdled the entrance examination the RTC, Branch 93 (Special Commercial Court) of Quezon of the University of the Philippines Integrated School on City from 2006 until his appointment to the appellate court. Katipunan Road, Quezon City. She describes herself as a He began service in the government in 1991 when he was proud product of the Philippine public school system, having taken in by Justice Edgardo L. Paras of the Supreme Court as a obtained her high school diploma, her B.S. Psychology De- Confidential Assistant. Upon the retirement of Justice Paras in gree, and her Law Degree, all from the University of the Phil- 1992, Justice Hernando transferred to the office of Supreme ippines, Diliman, Quezon City. She finished all the academic Court Senior Associate Justice Florenz D. Regalado, where he requirements, but lacks thesis, for a Master of Laws Degree served in various capacities, from Executive Assistant, Chief under the ladderized program for Judges at the San Beda Col- Legislative Staff Officer (when Justice Regalado was a member lege of Lawp-Philippine Judicial Academy Consortium. of the House of Representatives Electoral Tribunal and Senate After obtaining her government-subsidized education at Electoral Tribunal) and Court Attorney VI. In 1998, he be- the U P, she deemed it apt to serve the country by devoting came a State Prosecutor in the Department of Justice, his im- her career to government service. She first worked for Associ- mediate position before joining the Bench in 2003. ate Justice Ameurfina A. Melencio-Herrera, and later for As- Apart from government service, Justice Hernando is a sociate Justice Abdulwahid A. Bidin, at the Supreme Court. respected member of the Academe. Since 1993, he has taught Then she moved to the Court of Appeals, where she was various subjects ranging from Commercial Law, Civil Law and Court Attorney V for Associate Justice Buenaventura J. Guer- Remedial Law in several law schools including the Angeles rero, for over 7 years. University Foundation School of Law, FEU Institute of Law, She entered the Judiciary when she was appointed as Pre- UST Faculty of Civil Law, San Beda College of Law, San siding Judge of the Metropolitan Trial Court, Branch 30, Ma- Sebastian College of Law and Xavier University-Ateneo de nila, in the year 2000. She also served as First Vice Executive Cagayan School of Law. He was Examiner in Commercial Law Judge of the MeTC Manila. In 2005, she was promoted as Pre- in 2009 Bar Examinations and is co-author of the book “Notes siding Judge of the Regional Trial Court, Branch 28, Manila. and Cases on the Law on Transportation and Public Utilities.” She was also designated as First Vice Executive Judge. In 2008, He has also been the recipient of a number of short study her dedication and hard work was recognized when she was grants and training courses from the University of Strasbourg chosen “Outstanding Regional Trial Court Judge of Manila”. in France, National University of Singapore, World Intellectual On 10 March 2010, she returned to the Court of Appeals, Property Academy in Geneva, Switzerland and Global Intellec- upon her promotion and appointment as Associate Justice. tual Property Academy in Washington, DC, USA. In 2006, he Justice Valenzuela is also a member of the academe. She was part of a delegation of Executive Judges from the Philip- was Instructor of Obligations and Contracts, and Income pines that was sent by the Supreme Court to Sydney, Australia Taxation, at the St. Scholastica’s College, College of Business upon the invitation of the Australian Government to study Law and Taxation. At the time of her appointment to the Ap- management for court administrators. He is currently a mem- pellate Court, she had been Law Professor at the Adamson ber of the Supreme Court Sub-Committee on the Revision of University College of Law for 8 years handling courses in legal the Rules on Civil Procedure. writing and the Moot Court classes. Born on August 27, 1966, Justice Hernando is fifth of six Aside from being a daughter, a public servant, and a law children of the late Judge Teodoro Lasam Hernando, Sr. of professor, she is also a wife to Atty. Alberto C. E. Valenzuela, Solana, Cagayan and Priscilla Balisi Layugan of Ilagan, Isabela. Jr., and mother to 13-year old Alberto Clemente (Toby). In He is happily married to Atty. Cherry Chiara L. Hernando, a her spare time, she loves to read. One of her favorites from fellow Bedan graduate and presently a Graft Investigation and childhood to present, is “Charlotte’s Web”, by E.B. White. Prosecution Officer in the Office of the Ombudsman. Her other hobbies are swimming, and playing the piano.

16 Court of Appeals Journal

The power of eminent domain is one of the inherent powers of should be made and how much valuation should be granted to the dis- the State.* As such, it need not be expressly provided for in the Con- possessed owner. National Power Corporation v. Ibrahim et al., supra, pro- stitution. Its existence is understood from the fact that a State exists. vides a clear and concise summation of the rule on these factors: What the Constitution provides, however, are limitations on the exer- 1. As a general rule, valuation is to be done at the time of cise of eminent domain. Thus, Sec. 9, Art. III of the Constitution filing of the complaint for expropriation. states that private property shall not be taken for public use without 2. By way exception, valuation is to be made at the time of just compensation. taking where the owner would be given undue incremental Eminent domain calls for “taking” of private property and advantages arising from the use to which the government de- “taking” is present when these elements concur: votes the property expropriated. x x x (1) the expropriator must enter a private prop- 3. And by way of exception to the exception, where the erty; (2) the entrance into private property must be for expropriator did not enter the land under warrant or color of more than a momentary period; (3) the entry into the legal authority or with intent to expropriate the same, or in property should be under warrant or color of legal author- fact, it did not bother to notify the owner and wrongly as- ity; (4) the property must be devoted to a public use or sumed it had right over the property, valuation must be reck- otherwise informally appropriated or injuriously affected; oned when the property owner discovers the intrusion and the and (5) the utilization of the property for public use must expropriator confirms the same and starts negotiations for its be in such a way to oust the owner and deprive him of all purchase but no agreement could be reached. beneficial enjoyment of the property.* 4. Valuation is based on the fair market value of the adja- “Taking” may be done unilaterally* as in the case of the Compre- cent properties. Section 5 of RA 8974 (2000) sets out the stan- hensive Agrarian Reform Law where the taking entity has the power of dards for determining just compensation: eminent domain originally or by delegation and its franchise author- SECTION 5. Standards for the Assessment of the izes the taking of the private property in question.* Or it may be Value of the Land Subject of Expropriation Proceedings done utilizing the remedy of expropriation under the Revised Rules of or Negotiated Sale. — In order to facilitate the determina- Court in conjunction with such relevant statutes as RA 8974 (2000). tion of just compensation, the court may consider, among In the former, it is the owner who initiates the action assailing the other well-established factors, the following relevant stan- authority to exercise eminent domain or the public purpose of the dards: taking, but in most instances, only the element of just compensation (a) The classification and use for which the property becomes the subject of the suit.* On the other hand, in an expropria- is suited; tion case, it is the expropriator who initiates the complaint and (b) The developmental costs for improving the land; proves the elements of eminent domain. Of course, the general rule (c) The value declared by the owners; is --- landowners cannot be deprived of their right over their land (d) The current selling price of similar lands in the until expropriation proceedings are instituted in court.* vicinity; The concept of private property for purposes of eminent do- (e) The reasonable disturbance compensation for main encompasses both real and personal properties.* With respect the removal and/or demolition of certain improvements to real properties, the idea of private property extends not merely to on the land and for the value of improvements thereon; its visible surface but includes as well everything underneath and the (f) The size, shape or location, tax declaration and airspace above it up to a reasonable height.* Any interference with zonal valuation of the land; one’s real property or land though short of losing one’s title or pos- (g) The price of the land as manifested in the ocular session, such as through the creation of easement, already impacts findings, oral as well as documentary evidence presented; on the private property and if the owner is deprived of any beneficial and use of any portion of it, then “taking” has occurred.* (h) Such facts and events as to enable the affected The issue of just compensation, since it remains to be the only property owners to have sufficient funds to acquire simi- viable matter of debate between the expropriator and the private larly-situated lands of approximate areas as those required property owner, has had some permutations through jurisprudential from them by the government, and thereby rehabilitate history. The relevant factors to be considered are when valuation themselves as early as possible. Clearly no cut-and-dried formula is provided but only guidelines * Citations omitted due to lack of space. because determination of just compensation is a factual issue on which Court of Appeals Journal 17 the parties must be heard through adduced evidence. The court may This ruling was subsequently qualified in a very large extent, itself hear this issue directly or appoint commissioners whose decision though not expressly overruled, in Heirs of Timoteo Moreno et al. v. Mac- or resolution would guide the court’s binding judgment thereon. tan-Cebu International Airport Authority, G.R. No. 156273, October 15, Recent developments on eminent domain have expanded, how- 2003. In that case, the National Airport Corporation, as predecessor ever, the area of contestability between the expropriator and the pri- agency of the Mactan-Cebu International Airport Authority vate property owner. Before, only the amount of just compensation (MCIAA), wanted in 1994 to acquire some parcels of land for the was treated as litigable issue, since the notion of public use has been proposed expansion of the Lahug Airport. To entice the landowners expanded to near heights of invincibility with the huge leeway af- to cede these properties, the State, through the MCIAA promised forded the State in defining these terms. Now, jurisprudence has al- them they could repurchase their lands once the Lahug Airport was lowed private property owners a little more degree of intervention in closed or its operations transferred to Mactan Airport. The lots were the manner by which expropriated properties are used to accomplish eventually expropriated and new certificates of title were issued in their purported goals. For convenience, the starting point is pegged at the name of the Republic of the Philippines and later transferred in the ruling in Reyes et al. v. National Housing Authority et al., supra. There, favor of the MCIAA. Unfortunately, by 1991, the Lahug Airport private properties were expropriated for the public purpose of ex- ceased operations as the Mactan Airport was opened for incoming panding the Dasmariñas Resettlement Project to accommodate the and outgoing flights. The landowners begged the then President and informal settlers who were relocated from the Metropolitan Manila. the MCIAA for them to exercise their purported right to repurchase. The National Housing Authority, however, had failed to relocate them Their pleas were rejected and so they filed an action for the recon- on the expropriated lands and had not fully paid the just compensa- veyance of these properties. The trial court found merit in their tion fixed by the court. Hence, the private owners prayed for forfei- claims and granted them the right to repurchase the properties at the ture of expropriator’s rights under the expropriation judgment. The amount pegged as just compensation. Supreme Court denied the relief sought, viz: The Supreme Court affirmed the lower court’s ruling. It said We likewise do not subscribe to petitioners’ contention that while Reyes et al. v. National Housing Authority et al., supra, and its that the stated public purpose was abandoned when respon- progeny, Fery v. Municipality of Cabanatuan, remain good law, the judg- dent NHA failed to occupy the expropriated lots by relocating ment of expropriation contained unmistakable, though implied con- squatters from the Metro Manila area. The expropriation judg- dition, that expropriation is valid only while the Lahug Airport con- ment declared that respondent NHA has a lawful right to take tinued its operations as an airport. According to the High Court, this petitioners properties “for the public use or purpose of ex- implicit condition is enforceable against the State, through the panding the Dasmariñas Resettlement Project.” The taking MCIAA, as it was stated in the expropriation judgment and proved here is absolute, without any condition, restriction or qualifica- by credible admissible evidence. Thus: tion. Contrary to petitioners’ submission, the ruling enunciated Moreover, respondent MCIAA has brought to our atten- in the early case of Fery vs. Municipality of Cabanatuan, is still tion a significant and telling portion in the Decision in Civil good and sound doctrine, viz.: Case No. R-1881 validating our discernment that the expro- “. . . If, for example, land is expropriated for a particular priation by the predecessors of respondent was ordered un- purpose, with the condition that when that purpose is ended or der the running impression that Lahug Airport would con- abandoned the property shall return to its former owner, then, tinue in operation — of course, when the purpose is terminated or abandoned the As for the public purpose of the expropriation former owner reacquires the property so expropriated. . . . If, proceeding, it cannot now be doubted. Although Mac- upon the contrary, however, the decree of expropriation gives tan Airport is being constructed, it does not take away to the entity a fee simple title, then, of course, the land be- the actual usefulness and importance of the Lahug Air- comes the absolute property of the expropriator . . . . port: it is handling the air traffic both civilian and mili- When land has been acquired for public use in fee simple tary. From it aircrafts fly to Mindanao and Visayas and unconditionally, either by the exercise of eminent domain or by pass thru it on their flights to the North and Manila. purchase, the former owner retains no rights in the land, and Then, no evidence was adduced to show how soon is the public use may be abandoned, or the land may be devoted the Mactan Airport to be placed in operation and to a different use, without any impairment of the estate or title whether the Lahug Airport will be closed immediately acquired, or any reversion to the former owner.” thereafter. It is up to the other departments of the The ruling may be summed up, thus: if the judgment decreeing Government to determine said matters. The Court the expropriation did not expressly stipulate any condition restricting cannot substitute its judgment for those of the said the public use of the expropriated property to the original purpose, departments or agencies. In the absence of such show- then the expropriator continues to own the expropriated property ing, the Court will presume that the Lahug Airport will even if the public use initially contemplated and upon which judgment continue to be in operation x x x x was rendered is later abandoned for some other use. While the trial court in Civil Case No. R-1881 could have Rule on Reversion/p.18 18 Court of Appeals Journal

simply acknowledged the presence of public purpose for the respondent MCIAA the necessary expenses it may have in- exercise of eminent domain regardless of the survival of Lahug curred in sustaining the properties and the monetary value of Airport, the trial court in its Decision chose not to do so but its services in managing them to the extent that petitioners will instead prefixed its finding of public purpose upon its under- be benefited thereby. The government however may keep standing that “Lahug Airport will continue to be in operation.” whatever income or fruits it may have obtained from the par- Verily, these meaningful statements in the body of the Deci- cels of land, in the same way that petitioners need not account sion warrant the conclusion that the expropriated properties for the interests that the amounts they received as just com- would remain to be so until it was confirmed that Lahug Air- pensation may have earned in the meantime. As a matter of port was no longer “in operation.” This inference further im- justice and convenience, the law considers the fruits and inter- plies two (2) things: (a) after the Lahug Airport ceased its un- ests as the equivalent of each other. dertaking as such and the expropriated lots were not being Under Art. 1189 of the Civil Code, “If the thing is im- used for any airport expansion project, the rights vis-à-vis the proved by its nature, or by time, the improvement shall inure expropriated Lots Nos. 916 and 920 as between the State and to the benefit of the creditor . . .,” the creditor being the per- their former owners, petitioners herein, must be equitably ad- son who stands to receive something as a result of the process justed; and, (b) the foregoing unmistakable declarations in the of restitution. Consequently, petitioners as creditors do not body of the Decision should merge with and become an intrin- have to settle as part of the process of restitution the apprecia- sic part of the fallo thereof which under the premises is clearly tion in value of Lots Nos. 916 and 920 which is the natural inadequate since the dispositive portion is not in accord with consequence of nature and time. the findings as contained in the body thereof. Petitioners need not also pay for improvements introduced Significantly, in light of the discussion above, the admission by third parties, i.e., DPWH, as the disposition of these prop- of petitioners during the pre-trial of Civil Case No. CEB-20015 erties is governed by existing contracts and relevant provisions for reconveyance and damages that respondent MCIAA was of law. As for the improvements that respondent MCIAA may the absolute owner of Lots Nos. 916 and 920 does not preju- have made on Lots Nos. 916 and 920, if any, petitioners must dice petitioners’ interests. This is as it should be not only be- pay respondent their prevailing free market price in case peti- cause the admission concerns a legal conclusion fiercely de- tioners opt to buy them and respondent decides to sell. In bated by the parties but more so since respondent was truly the other words, if petitioners do not want to appropriate such absolute owner of the realties until it was apparent that Lahug improvements or respondent does not choose to sell them, the Airport had stopped doing business. improvements would have to be removed without any obliga- To sum up what we have said so far, the attendance in the tion on the part of petitioners to pay any compensation to case at bar of standing admissible evidence validating the claim respondent MCIAA for whatever it may have tangibly intro- of petitioners as well as the portions above-quoted of the Deci- duced therein. sion in the expropriation case volunteered no less than by re- The medium of compensation for the restitution shall be spondent itself, takes this case away from the ambit of Mactan- ready money or cash payable within a period of three hundred Cebu International Airport Authority v. Court of Appeals but within sixty five (365) days from the date that the amount to be re- the principles enunciated in Fery as mentioned earlier. In addi- turned by petitioners is determined with finality, unless the tion, there should be no doubt that our present reading of the parties herein stipulate and agree upon a different scheme, fallo of the Decision in Civil Case No. R-1881 so as to include medium or schedule of payment. If after the period of three the statements in the body thereof afore-quoted is sanctioned hundred sixty five (365) days or the lapse of the compromise by the rule that a final and executory judgment may nonethe- scheme or schedule of payment such amount owed is not set- less be “clarified” by reference to other portions of the deci- tled, the right of repurchase of petitioners and the obligation of sion of which it forms a part x x x x respondent MCIAA to reconvey Lots Nos. 916 and 920 The adjustment of the rights and obligations of the expropriator and/or the latter's improvements as set forth herein shall be and the former owner is governed by the rules on constructive trusts. deemed forfeited and the ownership of those parcels of land Hence, respondent MCIAA as representative of the State is shall vest absolutely upon respondent MCIAA. obliged to reconvey Lots Nos. 916 and 920 to petitioners who This ruling was emphatically affirmed by the Supreme Court in its shall hold the same subject to existing liens thereon, i.e., lease- August 9, 2005 Resolution in the same case. Its conclusion was heart- hold right of DPWH. In return, petitioners as if they were rending, a rein on the State’s awesome power of eminent domain plaintiff-beneficiaries of a constructive trust must restore to when used to pursue obviously commercial dictates and purposes, respondent MCIAA what they received as just compensation with special considerations for those property owners who fought for the expropriation of Lots Nos. 916 and 920 in Civil Case long and hard to resist the process of expropriation, viz: No. R-1881, i.e., P7,065.00 for Lot No. 916 and P9,291.00 for x x x x We are cognizant of the incontestable fact that Lot No. 920 with consequential damages by way of legal inter- some landowners immediately sold their properties upon the est from 16 November 1947. Petitioners must likewise pay assurance that they could repurchase them at the cessation of Court of Appeals Journal 19

the Lahug Airport’s operations. And, indeed, these landown- filed, failing which, it should file another petition for the new ers who chose to cede their properties were fortunate to have purpose. If not, it is then incumbent upon the expropriator to a stipulation in their contract of sale vouching for their right return the said property to its private owner, if the latter desires of repurchase. Meanwhile, the landowners who found it bur- to reacquire the same. Otherwise, the judgment of expropriation densomely difficult to part with their cherished lands under- suffers an intrinsic flaw, as it would lack one indispensable ele- went the costly expropriation proceedings which lasted for a ment for the proper exercise of the power of eminent domain, number of years. Inevitably, justice and equity dictates the namely, the particular public purpose for which the property will reconveyance of the expropriated lots to their previous own- be devoted. Accordingly, the private property owner would be ers. One must never fail to overlook the reality that the denied due process of law, and the judgment would violate the power to condemn property is an awesome power of the property owner’s right to justice, fairness, and equity. State and that to compel a citizen to forcibly surrender his In light of these premises, we now expressly hold that the precious property to the enormous governmental power is taking of private property, consequent to the Government’s too much a sacrifice which deserves more consideration than exercise of its power of eminent domain, is always subject to the those landowners, who, from the very beginning voluntarily condition that the property be devoted to the specific public relinquished their ownership. purpose for which it was taken. Corollarily, if this particular The amount of reimbursement for the reconveyance of the expropri- purpose or intent is not initiated or not at all pursued, and is ated properties speaks volumes too of the High Court’s desire to peremptorily abandoned, then the former owners, if they so even the playing field by discounting increase in the values of the lots desire, may seek the reversion of the property, subject to the due to inflation or speculation. return of the amount of just compensation received. In such a We now come to the discussion of the amount of repur- case, the exercise of the power of eminent domain has become chase price. The respondent maintains that the sum to be improper for lack of the required factual justification. paid by the petitioners for Lot Nos. 916 and 920 should be Even without the foregoing declaration, in the instant case, their prevailing market price, and not the expropriation price on the question of whether respondents were able to establish which would be grossly unfair considering that the petitioners the existence of an oral compromise agreement that entitled were paid just compensation and the lots are now millions of them to repurchase Lot No. 88 should the operations of the pesos in value. Our stand on the amount of repurchase price Lahug Airport be abandoned, we rule in the affirmative. remains unperturbed. When the State reconveys land, it Mactan-Cebu International Airport Authority et al. v. Lozada Sr. et al., should not profit from sudden appreciations in land values. supra, affirmed also the just compensation scheme set forth in Heirs of Any increase or decrease in market value due to the proposed Timoteo Moreno et al., supra. improvement may not be considered in determining the mar- This development is interesting because, as stated above, a prop- ket value. Thus, reconveyance to the original owner shall be erty owner is no longer limited to the confines of just compensation in for whatever amount he was paid by the government, plus seeking recourse against the State or any of its agencies as expropriator. legal interest, whether or not the consideration was based on The horizons of debate have been widened and may very well be the the land's highest and best use when the sale to the State oc- lynchpin of subsequent challenges to the once vaunted and invincible curred. power of eminent domain. In another case decided by the Supreme Court involving the The permutations of the rulings in Heirs of Timoteo Moreno et al., MCIAA, Mactan-Cebu International Airport Authority et al. v. Lozada Sr. et supra, and Mactan-Cebu International Airport Authority et al. v. Lozada Sr. et al., G.R. No. 176625, February 25, 2010, the Supreme Court did not al., supra, are so wide they may be used to challenge non-expropriation merely affirm in whole the ruling in Heirs of Timoteo Moreno et al., su- related exercise of eminent domain, such as the agrarian reform pro- pra, it also required the State as expropriator to stand by the original gram. Would the transfer of lands to agrarian reform beneficiaries be public purpose upon which the eminent domain was exercised and also voided if they were subsequently sold to non-tenants or used other the expropriation pursued. According to the Court, if the expropria- than for agricultural purposes? In the arena of urban land reform, tor were to do otherwise, that is, devote the property to any other where socialized housing is abandoned for the more lucrative commer- purpose, the State would not only be violating the essential element cial markets, would the initial expropriation be nullified on the charge of particular public purpose in an eminent domain exercise but also that the specific public purpose has been abandoned? If lands were the due process right of the private property owner who was hailed taken so as to build roads to ease traffic congestion, could one say that to an expropriation proceeding and who participated in such for the the particular public purpose was abandoned because the road was in- specific public purpose that was bandied about in the expropriation stead used as a feeder access to a newly built mall and thus made traffic case. The owner’s right to be heard would have been rendered for worse? Would the new rulings have any retroactive effect so lands ex- naught. propriated previously could be recovered because the original public More particularly, with respect to the element of public purpose has been changed? Would they also pertain to other means of use, the expropriator should commit to use the property pur- suant to the purpose stated in the petition for expropriation Rule on Reversion/p.35 20 Court of Appeals Journal

EDITORIAL

“The judge's chair is a seat of power. NOT only do Verily, the enactment of laws of this nature recognizes the judges have power to make binding decisions on private citi- worth and participation of PWDs in our society. Above all, it zens, their rulings may also legitimate or negate the use of is an adherence to the United Nation's advocacy of recogniz- power by other public officials. Judges are the custodians of ing the human rights of PWDs. This also reinforces our con- authority because their putative expertise in the law, their stitutional provision upholding said rights and extending pro- presumed independence from partisan political control, and tection to the disabled person. If senior citizens and OFW's their ritualized fact-finding procedures supposedly make their are granted certain privileges, there is no reason to deny similar decisions more objective than those of other officials.” (Cited or comparable privileges to PWD's. It was the late Senator on the Topic of Instruments of Judicial Power Chapter 7, page 299, Robert F. Kennedy who said that - “We must recognize the Courts, Judges and Politics 6th edition, Walter F. Murphy, C. full human equality of all our people – before God, before the Hermann Pritchett, Lee Epstein, Jack Knight) law, and in the councils of government. We must do this, not As judges, we are bound to seek the truth and to do what because it is economically advantageous – although it is; not is right. The task may appear daunting. Sometimes difficult because the laws of God and man command it – although they and impossible. But as Nobel Peace Laureat Fridtjof Nansen do command; not because people in other lands wish it so. We once said - “The difficult is what takes a little time; the im- must do it for the single and fundamental reason that it is the possible is what takes a little longer.” right thing to do.”

FAVORING PERSONS WITH DISABILITIES SEPARATE BUT NOT CO-EQUAL?

Personally, I would rather call them persons with special The House of Representatives and the Supreme Court abilities instead of persons with disabilities. appear headed on a collision course over the impeachment of Persons with Disabilities (PWDs) will now reap the spe- Ombudsman Merceditas Gutierrez. cial privilege they deserve pursuant to Section 32 of RA No. Here’s the rundown of the latest developments: Two impeachment 7727 as amended by RA No. 9442, otherwise known as complaints had been filed against Gutierrez: that of party-list ''Magna Carta for Disabled Persons.'' Recently, the 11th Division Bayan, led by its secretary general Renato Reyes, and the other of the Court of Appeals, which I am privileged to chair and by Akbayan, led by former representative Riza Hontiveros- as the ponente, dismissed the claim of the Drugstores Associa- Baraquel. In both complaints, the Ombudsman is accused of tion of the Philippines, et. al., (Petitioners) assailing the con- culpable violation of the Constitution and betrayal of public stitutionality of the 20% discount on the medicines pur- trust. The House Committee on Justice later found these im- chased by the PWDs. The ponente, together with his divi- peachment complaints to be sufficient in form and substance sion-members, Justice Gonzales-Sison and Justice Bueser paving the way for the impeachment proceedings to take its unanimously upheld the constitutionality of the said social course in the House against Gutierrez. Ombudsman Gutierrez legislation. The Court ruled that the assailed provision was protested the move before the Supreme Court, via a certiorari constitutional being a legitimate exercise of police powers of petition, contending that the impeachment was illegal as it the state. It must be recalled that the tax deduction scheme tackles 2 cases against her within a year---a violation of the 1- prescribed in R.A. No.9442 was previously upheld by the case-a-year limit to impeaching an impeachable official. Citing Supreme Court in the case of Carlos Superdrug Corporation, the Constitutional ban on filing more than 1 complaint against et. al. vs. DSWD, et. al. the same official within a year, the high Court issued its now With the resolution of the constitutional issue, the controversial Status Quo Ante Order. PWDs can now enjoy the 20% discount granted to them as Advocates are, however, asking these questions: Is it not a matter of right, which was previously denied to them by that the Constitution bars 2 impeachment proceedings within 1 most of the pharmaceutical stores. This ruling of the Court year and not 2 complaints? Or, even if the mere filing of an of Appeals is of course without prejudice to an appeal that impeachment complaint alone comes within the purview of may be filed by the Petitioners before the Supreme Court. the constitutional provision, what implication could be in- The decision received favorable response not only from the ferred from the House Committee on Justice Chair’s own dec- beneficiaries and their respective families but from the gen- laration that these 2 impeachment complaints against eral public. To them, it is a commitment that the judiciary is Gutierrez were referred to the Committee on Justice at exactly responsive to their social needs and humane aspirations. the same time? In the 2003 impeachment case against CJ Davide, Court of Appeals Journal 21 no less than the SC ruled that impeachment proceedings will legislation through its ponencias, which the Constitution itself only commence upon referral of the complaint to the Com- mandates “to form part of the law of the land,” and even mittee on Justice. With these 2 complaints having been re- through active promulgation of rules concerning rights en- ferred at exactly the same time, should'nt they be treated as 1 shrined under the Constitution and its protections, the same is or, if not, can 1 complaint be accepted and the other com- not lodged on it exclusively. There is nothing, however, in the plaint rejected? Constitution that expressly prohibits the Congress from doing More importantly, is the action of the House Committee the same, or to put it bluntly, from coming up with laws that finding these complaints sufficient in form and substance may be in conflict with what the SC had enacted. Should that already ripe for judicial adjudication? Of course there’s no happen, which shall prevail? By then, we should already be gainsaying that the SC’s judicial power includes the duty of able to draw the line separating these two co-equal branches of the courts of justice “to determine whether or not there has government. been a grave abuse of discretion amounting to lack or excess After all, when Congress and the Executive Department of jurisdiction on the part of any branch or instrumentality of thru the DBM persist in diluting the share of the judiciary in the Government”. But, does this include reviewing the acts the national budget, they are in fact crossing the line of the or proceedings of the justice committee at this early stage judiciary's fiscal autonomy and independence. Correlatively, although their actions are still subject to the approval of the when the judiciary intrudes into matters which are intrinsically plenary? If so, what would be its effect on the House’s con- political in nature, it is also in fact crossing the line into judicial stitutionally vested discretion and exclusive power to initiate adventurism. Both branches of government are driven by a complaints for impeachment? And, while the case is pending common desire to uphold the Constitution. Although their before the SC, what happens to the mandate of the House approach and perspective as to the means of achieving that Committee on Justice under Article 11, Section 3(2) of the goal may differ. Constitution that commands it to submit its report on the Commenting on the extent of judicial intervention, former impeachment complaint to the plenary within 60 days from attorney general of the United States Edwin Meese III (under its referral to the Committee? Furthermore, considering that the administration of President Ronald Reagan) once declared no deliberation or determination has been made by congress that - “The American people will never be able to regain de- relating to the guilt or innocence of Ombudsman Gutierrez, mocratic self government – and thus shape public policy – is it already proper for the SC to intrude to protect perceived until we curb activist judges.” constitutional rights or interests which may not have yet Thomas Jefferson, in his letter to Edward Livingston in arisen? 1825, reacted prophetically to the decision in Marbury vs. While the ultimate issue as to which of these 2 branches Madison on the pitfalls of judicial review saying that - “This of our Government will reign supreme on these particular member of the government was at first considered as the most issues, the saga as to the possibility of future conflict between harmless and helpless of all its organs. But it has proved that them seem to loom over other matters as well. the power of declaring what the law is...... by sapping and min- Before the 1987 Constitution, the legislature and the ing slyly and without alarm the foundations of the Constitu- Court used to have a power-sharing scheme in the enactment tion, can do what open force would not dare to attempt.” of judicial rules. Thus, while the SC had the “power to prom- Then again, the threshold question that confronts us in the ulgate rules concerning pleadings, practice and procedure in judiciary is this – In order to maintain this eshrined “separate all courts, and the admission to the practice of law,” the con- but co-equal” relationship with the two other branches of gov- current power “to repeal, alter or supplement” the same was ernment, do we temper it with judicial restraint or invigorate it vested in the Legislature. Nonetheless, with the advent of the with judicial activism?

1987 Constitution, the said power-sharing scheme was re- REDRESSING GRIEVANCES AND SETTLING DIS- moved, giving to the SC the exclusive prerogative to promul- PUTES gate “judicial rules” without the subsidiary or corrective In this country of about 100 million people with diverse power of the Congress. What is more, the SC was given the cultural, religious, social and political views, conflicts brew just power “to promulgate rules concerning the protection and about everywhere, anytime. We deal with conflicts in our daily enforcement of constitutional rights” as well as “to disap- lives – be it at home, in our neighborhood, in the office, in our prove rules of procedure of special courts and quasi-judicial interpersonal and business relations. When communication bodies”. falters and opinions clash among people, controversies be- Where does this leave the Congress then? Is it now pre- come inevitable. cluded from enacting laws that concern the protection and From the standpoint of a battered wife, a disgruntled cus- enforcement of constitutional rights? Definitely not. Evi- tomer, an underpaid laborer, or anyone who believes that his dently, the SC can now indulge into the domain of judicial rights have been trampled upon, the quest for justice, no mat- 22 Court of Appeals Journal ter how elusive it may be, knows no cost and respects no hour hostage-taking drama at the Quirino Grandstand. His boundaries. demand to have his pending case immediately resolved by the When we speak of justice, the first thing that comes to Ombudsman and the looming reality of his losing therein im- mind is the Court, which is the seat of the most traditional pelled him to claim the lives of at least 6 foreign tourists from dispute resolution process – litigation. Thus, it is not surpris- HongKong. Consequently, this earned the ire of the Hong ing that the statement, “I’ll see you in court!” has become syn- Kong government and has put the entire Philippines in bad onymous with vengeance nay vindication among aggrieved light. Even our very pious Roman Catholic bishops warned of parties. However, while conflicts, disputes or controversies "civil disobedience" and even excommunication against the may be unavoidable, going to court and taking legal action is present administration should President Benigno C. Aquino only a choice. To borrow the words of Max Lucade, a fa- III fulfill his promise to propagate artificial birth control meth- mous author, “Conflict is inevitable, but combat is optional.” ods. On the part of the Bureau of Internal Revenue (BIR), its Of course, our courts exist for a reason – that is, to pro- efforts to raise revenues for the government have come to the vide an avenue for formal judicial proceedings that allow the point where it threatens tax evaders of a SHAME campaign. full examination and determination of all the issues between BIR swears to publish the names of tax evaders, thereby ex- parties, with each party presenting its case before a magis- posing the latter to shame as their identities will be disclosed to trate. Courts, whenever appropriate, also provide for an ap- the general public. Also, our very own Supreme Court has not peal by a losing party to the higher court. Yet, we are all taken Malacanang's threat of a budget slash sitting down. On aware that court proceedings could take years and that con- the face of an impending cut on the judiciary's budget for next tending parties have to put up with the staggering costs of year, the Supreme Court warned of a possible judicial revolt litigation and lawyer's fees. And almost always, after several against the government. Indeed, it is about time that the judici- years of painstaking legal battle, someone has to lose. ary is removed from this state of mendicancy. Thus, while litigation remains to be an option for ag- Proponents and supporters of the RH bill (Reproductive grieved parties, the Philippine judicial and legislative depart- Health Bill) have criticized the church and have warned of a ments have adopted other out-of-court modes for settling “DAMASO” revolt. They are optimistic that with the passage disputes which entail less expenses and are less stressful in of the RH bill into law, fetuses and unwanted newly born in- nature. On April 2, 2004, Congress enacted the Alternative fants will no longer be deposited at the church doorsteps, con- Dispute Resolution Act, which institutionalizes the use of the vents, airplane bins and trash cans but only un- alternative dispute system as well as the establishment of the wanted/discarded condoms. Office for Alternative Dispute Resolution. This Act defines William James, an American Philosopher and Psycholo- “alternative dispute resolution system” as any process or pro- gist, once said that, “whenever you’re in conflict with someone, there is cedure used to resolve a dispute or controversy, other than one factor that can make the difference between damaging your relationship by adjudication of a presiding judge of a court or an officer and deepening it. That factor is attitude.” While conflicts are inevita- of a government agency in which a neutral third party partici- bly a part of our daily existence, the way we deal with it lies in pates to assist in the resolution of issues, which includes arbi- our hands. In the midst of all possible solutions, justice should tration, mediation, conciliation, early neutral evaluation, mini- be sought as a means for healing, and not as an excuse to com- trial or any combination thereof. The best thing about these mit another mistake and perpetuate an injustice. alternative modes of dispute resolution is that they often re- Nobel Peace Laureat Martin Luther King once declared - sult in a “win-win solution”. “We must learn to live together as brothers, or we shall perish Yet, despite these alternative measures, our court dock- together as fools.” No doubt, we must settle all disputes and ets are still clogged. Judges and justices continue to be over- redress all grievances. We must speak out against injustice, burdened with cases which have been pending before their discrimination and all forms of unfairness. But we must be sala for years. It is rather unfortunate that, nowadays, courts guided at all times by our adherence to the rule of law rather are plagued by problems such as undermanned personnel than the rule of men. and outdated facilities, which mainly account for case back- The late Senator Robert F. Kennedy once again reminded logs. us that - “Men without hope, resigned to despair and oppres- Justice delayed is justice denied. While some victims patiently sion, do not make revolutions. It is when expectation replaces wait for the wheels of justice to grind, it is rather alarming submission, when despair is touched with the awareness of that others have taken the law into their own hands. Some possibility, that the forces of human desire and the passion for people seek redress of grievances in a way they deem fit, in a justice are unloosed.” way they think justice will be served swiftly. Take the case of RAISING THE BAR OF ADMISSION.* former police officer Rolando Mendoza who staged a 10- The Supreme Court embarks on continuing efforts to re- * Citations omitted due to lack of space. form the Bar Examinations to upgrade the quality of new law- Court of Appeals Journal 23 yers and to safeguard the high standards and integrity of the toring and supervision of law schools: to give law students equal op- qualifying Examinations. For the past two Bar Examinations, portunity for quality education wherever they choose to enroll. the SC designated two examiners for each subject, pursuant The creation of Legal Education Board, tasked to supervise law to Paragraph 4, Part B of Bar Matter No. 1161, or the Reso- schools and impose sanctions on substandard law schools, among lution on Reform in the Bar Examinations. Presently, Associ- others is laudable. Unfortunately, despite its creation in 1993, the ate Justice Roberto Abad, Chairman of the 2011 Bar Exami- Board has yet to convene and perform its duties. Reports have it that nations Committee, proposed a scheme of 60% multiple no budget has been allocated to the Board.* choice questions and 40% essay for the 2011 Bar Examina- I am hoping that the new administration will help support our tions. The objective of the new experiment is to assess three legal education towards its intended goal to make it – highly compe- main skills of the examinees: knowledge and recall; compre- tent and globally competitive. It does not hurt to remind the govern- hension or understanding; and analysis and application, con- ment that it is the duty of the state to uplift the standards of legal sidering that the multiple choice questions will focus on Co- education and, as such, to undertake appropriate reforms in the legal dal provisions. Unfortunately, we expect the multiple choice education system,* The proposed reforms are possible if we take it to questions to be long and more difficult, not only because the heart and be moved by a common desire for excellence. questions have precise answers but also because the codal ON A MORE SERIOUS NOTE provisions are quite many and tricky. On the other hand, Halloween and Christmas are just around the Corner. having multiple choice questions saves time in the correction The month of November is fast approaching and the of examination papers and, more importantly, will ensure the Court of Appeals’ employees are wondering what “blessings” correction of the papers with more objectivity and exacti- are forthcoming to help tide them over the holidays. For most tude. of us, All Saints Day and All Souls Day are occasions to spend However, reforming the Bar Examinations is just one side of with the family to nurture spiritual values and traditions. These the coin. Goethe once said - “Things which matter most must never are days where the whole family fondly gather to reflect and be at the mercy of things which matter least.” It is not enough that say a prayer in remembrance for our departed loved ones. De- we reformat the BAR Examinations. There is still one factor to con- spite financial constraints, we always strive to make this a tend with – the quality of education that the law student must im- memorable family affair. Amidst the hardship, we must learn bibe before he takes the BAR. I am, therefore, glad that the es- to trust that the good Lord will see us through and hear our teemed former Chief Justice Artemio Panganiban similarly cried for prayers and grant us his eternal providence. We are fervently in reforms in legal education, I joined him in his challenge in shifting prayers that the Holy Spirit will guide CJ Corona and PJ Reyes the focus from reforming the bar exams to upgrading instead the to remember us in our hour of need. quality of legal education, Reforming the curriculum of law schools What is the meaning of Christmas? and energizing the legal education with close monitoring by the Christmas is love giving and sharing. Christmas is also Supreme Court and supervision by the Legal Education Board thanksgiving. We thank the Good Lord and our fellowmen for would prove to be more relevant and effective. all the blessings and the kindness they have bestowed upon us. In this light, I believe that law schools must provide their students As St. Luke had preached - “The highest kind of giving competent faculty members and adequate research/training facilities springs from deep within the heart.” of comparable standards nationwide. Law schools should also set JOKES FOR A STRESS FREE DAY high standards in their grading system to ensure that only qualified law students are allowed to graduate and that their graduates pass 1. The best way to make people remember you is to bor- convincingly the grueling Bar examinations. Statistically, provincial row money from them. If it is a big amount, they will law schools have produced less lawyers than their metro manila remember you the rest of your life. counterparts because their teaching standards are comparatively (sad 2. RELIGIOUS JOKE - “There are actually only six sac- to say) not competitive. Some have expressed views that most pro- raments, not seven: The sacrament of penance and the vincial law schools do not have high expectations and do not main- sacrament of matrimony are the same.” tain high standards preventing them from producing bar passers. 3. Someone observed that in pre-war Iraq, the women Indeed, some law schools simply teach but do not prepare their always walked behind their husbands. But after the students to cope with the hardship and stringent requirements of war, the men started walking behind the women. A the Bar Examinations. In fact, most law schools failed to develop western reporter asked an Iraqi man the reason for the students' desire and capacity for continuing study and self- this sudden change in social behaviour. Was it because improvement. Indeed, six law schools* were closed down by the Com- of some kind of religious conversion, or realization of mission on Higher Education because not one of their graduates long overdue respect of women rights? The Iraqi passed the bar exams in the last 10 years.* Their graduates' perform- man's response – LANDMINES. ance in the Bar was miserable. There is need for the proper moni- 24 Court of Appeals Journal

Petitions for certiorari under Rule 65 of the Rules of Court ac- or of other inferior trial courts. count for a staggering 70% of the cases filed before the Court of 3.2 Where such petitions are filed, the court con- Appeals. After all, this procedural recourse can be filed to assail not cerned should exercise the greatest restraint to avoid delay only judgments but likewise orders and resolutions issued by any in the enforcement of final and executory judgments. At- board, tribunal or officer exercising judicial or quasi-judicial func- tention is called to Sec. 6, Rule 65 of the Rules of Court tions. With this all-encompassing coverage, this special civil action which provides that such petition may be given due course may be filed practically at any stage of the proceedings, even during only if "sufficient in form and substance." Hence, sum- execution. mons should not immediately be issued until the Court While its scope is broad, the petition will only prosper upon finds the petition sufficient in form and substance. Only showing that: 1) the board, tribunal or officer acted without or in then should the order issue requiring defendant or defen- excess of its or his jurisdiction, or with grave abuse of discretion dants to answer. Restraining orders or preliminary injunc- amounting to lack or excess of jurisdiction, and 2) there is no appeal, tion should not be issued without prior notice and hearing or any plain, speedy, and adequate remedy in the ordinary course of and showing of a clear right thereto. law.* A petition for certiorari is undoubtedly a nifty tool for a crafty and These two (2) requisites must come hand-in-hand; the absence seasoned lawyer; it could do more damage if the intended implementa- of the other would ultimately result in the denial of the petition. The tion of an assailed judgment, order or resolution could be forestalled. action is a limited form of review and is a remedy of last recourse,* And why not, when the filing of the petition within the sixty (60)-day and thus, it is absolutely necessary for petitioner to allege in the peti- period could almost always be further delayed by motions for exten- tion, and adduce evidence to prove, that any other existing remedy is sion of time. As a consequence, the intended interruption would surely not speedy or adequate.* On the other hand, a tribunal, board or come to fore. A petition for certiorari is one remedy that has been officer is said to have acted with grave abuse of discretion when it thoroughly misused, abused and overused, unnecessarily burdening the exercised its power in an arbitrary or despotic manner by reason of dockets of proper courts, especially the dockets of the Court of Ap- passion or personal hostility, and it must be so patent and gross as to peals. amount to an evasion or a virtual refusal to perform the duty en- On 04 December 2007, the Supreme Court issued A.M. No. 07-7- joined or to act in contemplation of law.* 12-SC amending Rules 41, 45, 58 and 65 of the Rules of Court. In par- Even with the two (2) stringent requirements, compounded ticular, Section 4 of Rule 65 was amended, deleting the sentence, “[n]o further by the narrow and restrictive interpretation of “grave abuse of extension of time to file the petition shall be granted except for com- discretion”, these do not, however, deter litigants and their counsels pelling reason and in no case exceeding 15 days.”* in filing petitions for certiorari. Quite the contrary, these petitions are Before said amendment, Section 4, Rule 65 of the Rules of Court being used to delay a proceeding, the rendition of judgment, or even reads – an execution of a judgment. For an extraordinary remedy, the filing SEC. 4. When and where petition filed. – The petition shall be of petitions for certiorari increasingly becomes a “standard operating filed not later than sixty (60) days from notice of the judgment procedure” for whatever adverse ruling, judgment, or resolution a or resolution. In case a motion for reconsideration or new trial party or his counsel may obtain: it has evolved into an all encompass- is timely filed, whether such motion is required or not, the ing judicial remedy which could be availed of for a minimal filing fee, sixty (60) day period shall be counted from notice of the de- effort, and the wide latitude of time for filing. nial of said motion. In fact, the Supreme Court, as early as 1988, has already ob- The petition shall be filed in the Supreme Court or, if it served the undesirable repercussions of filing petitions for certiorari, relates to the acts or omissions of a lower court or of a corpo- by cautioning the courts handling such petitions. In its Administra- ration, board, officer or person, in the Regional Trial Court tive Circular No. 1 dated 28 January 1988, it directed the lower courts exercising jurisdiction over the territorial area as defined by to promptly act on dilatory petitions: the Supreme Court. It may also be filed in the Court of Ap- 3. Prompt Action on Dilatory Petitions to Delay Enforce- peals whether or not the same is in aid of its appellate jurisdic- ment of Executory Judgments: tion, or in the Sandiganbayan if it is in aid of its appellate juris- 3.1 It has become a common practice for litigants to diction. If it involves the acts or omissions of a quasi-judicial file dilatory petitions for certiorari and prohibition with agency, and unless otherwise provided by law or these rules, prayer for a restraining order or writ of preliminary in- the petition shall be filed in and cognizable only by the Court junction in order to delay or thwart enforcement of final of Appeals. an executory judgments of both the regional trial court No extension of time to file the petition shall be granted except for compelling reason and in no case ex- * Citations omitted due to lack of space. Court of Appeals Journal 25

ceeding 15 days. (Emphasis Ours) Metts, the Supreme Court ruled therein that the deletion of the sen- This amendment, notwithstanding, courts have continued to accord tence, “[n]o extension of time to file the petition shall be granted ex- leniency to litigants in the highest interest of justice, allowing motions cept for compelling reason and in no case exceeding 15 days” from for extensions of time to file petitions for certiorari. As a result, the Section 4, Rule 65, does not perforce to mean that motions for exten- dockets of the courts remained unnecessarily clogged, and the dispo- sion of time are absolutely prohibited. This time, the Court speaking sition of cases unduly delayed. through its ponente, Senior Associate Justice Conchita Carpio- It is no wonder that the courts regard the Decision of the Su- Morales, elucidated that if the intention was to proscribe the filing of preme Court in Laguna Metts Corporation vs. Aries C. Caalam and Gerald- a motion for extension to file a petition for certiorari, then the ine Esguerra* as a welcome surprise. The Supreme Court categorically amendment should have explicitly stated that it is prohibited – stated therein that the amendments to Rule 65 of the Rules of Court That no mention is made in the above-quoted amended under A.M. No. 07-7-12-SC disallowed extensions of time to file a Section 4 of Rule 65 of a motion for extension, unlike in the petition for certiorari with the deletion of the paragraph that previ- previous formulation, does not make the filing of such plead- ously permitted such extensions. Such petitions now must be filed ing absolutely prohibited. If such were the intention, the strictly within sixty (60) days with no further extensions. deleted portion could just have simply been reworded to state According to the Supreme Court, speaking through then Senior that “no motion of time to file the petition shall be granted.” Associate Justice Hon. Renato C. Corona, now Chief Justice of the Absent such a prohibition, motions for extension are Supreme Court: allowed, subject to the Court's sound discretion. The If the Court intended to retain the authority of the present petition may thus be allowed, having been filed proper courts to grant extensions under Section 4 of Rule 65, within the extension sought and, at all events, given its mer- the paragraph providing for such authority would have been its. preserved. The removal of the said paragraph under the The pronouncement in the Domdom case is succinct: the amendment amendment by A.M. No. 07-7-12-SC of Section 4, Rule of the rule did not prohibit motions for extension of time to file peti- 65 simply meant that there can no longer be any exten- tion for certiorari. sion of the 60-day period within which to file a petition With the two (2) seemingly inconsistent rulings, the former by for certiorari. the First Division and the latter, by the Supreme Court sitting en The Supreme Court became even more emphatic, short of admonish- banc, which should prevail? ing the Court of Appeals which allowed such an extension, further There is no inconsistency between the two (2) rulings. The Dom- saying: dom case involved a petition filed before the Supreme Court, while In granting the private respondents' motion for exten- the Laguna Metts case, a petition filed before the Court of Appeals. sion of time to file petition for certiorari, the Court of Ap- It is always within the power of the Supreme Court to suspend peals disregarded A.M. No. 07-7-12-SC. The action the rules or to except a particular case from its operation. In the amounted to a modification, if not outright reversal, by the Domdom case, petition for certiorari was filed to assail Resolutions of Court of Appeals of A.M. No. 07-7-12-SC. In so doing, the the Third and Fifth Divisions of the Sandiganbayan, disallowing the Court of Appeals arrogated to itself a power it did not consolidation of cases for estafa through falsification of documents. possess, a power that only this Court may exercise. The Court resolved to spare the petition from dismissal which should And clearly, with this judicial pronouncement, if no petition for cer- have resulted as a matter of procedure, by allowing the extension of tiorari is filed within the sixty (60)-day period, the courts are now time, and eventually ordering the consolidation, in keeping with law constrained to deny the extension sought and to dismiss the petition. and equity. The Laguna Metts case made procedural rules concerning peti- This is not the first time that the Supreme Court has brushed tions for certiorari better and more efficient, precluding the precipi- aside adherence to procedure and refused to write finis to a case by the tate filing thereof. The patent abuse in filing dilatory petitions is now strict application of the rules. As early as the case of Habaluyas Enter- being quelled. After all, Supreme Court ratiocinated, citing Delos San- prises, Inc., et al. vs. Judge Japson, et al.*, the authority of the Su- tos vs. Court of Appeals,* that sixty (60) days is sufficient time to file preme Court to relax or even suspend the application of the rules has the petition - been expressly recognized. The case involved the issue on whether The 60-day period is deemed reasonable and sufficient the fifteen (15)-day period within which a party may file a motion for time for a party to mull over and to prepare a petition assert- reconsideration of a final order or ruling of the Regional Trial Court ing grave abuse of discretion by a lower court. The period may be extended. The Court ruled – was specifically set to avoid any unreasonable delay that Hence, for the guidance of Bench and Bar, the Court re- would violate the constitutional rights of the parties to a states and clarifies the rules on this point, as follows: speedy disposition of their case. 1.) Beginning one month after the promulgation Inarguably, the case is one of the significant ponencias of Chief of this Resolution, the rule shall be strictly enforced Justice Corona.* It even addressed the perennial problem of clogged that no motion for extension of time to file a motion for new trial court dockets with a single stroke of the pen. or reconsideration may be filed with the Metropolitan or But several months after its promulgation, the Supreme Court, Municipal Trial Courts, the Regional Trial Courts, and sitting en banc, rendered a Decision in Domdom vs. Sandiganbayan, the Intermediate Appellate Court. Such a motion et al* touching on the same issue. Departing from the case of Laguna On Motions/p.26 26 Court of Appeals Journal

mary duty is to dispense justice. The law abhors technicalities that On Motions...from p. 25 impede the cause thereof.* But let it be reminded that in cases where may be filed only in cases pending with the Su- the rules of procedure are mandatory and jurisdictional, it is only our preme Court as the court of last resort, which may Supreme Court that may suspend the operation or appreciation of in its sound discretion either grant or deny the ex- these rules* when a rigid application thereof tends to frustrate rather tension requested. than promote substantial justice*. Only the Supreme Court has the The Supreme Court has elucidated the rationale behind the exer- power to except a particular case from the operation of a rule when- cise of this power in Barnes v. Padilla* – ever purposes of justice require it. Let it be emphasized that the rules of procedure The Laguna Metts and Domdom cases will not be the last. should be viewed as mere tools designed to faciitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frus- Judicial Plagiarism...from p. 6 trate rather than promote substantial justice, must al- ways be eschewed. Even the Rules of Court reflect this Canon 1 of said code of conduct likewise mandates judges to “exercise principle. The power to suspend or even disregard [their] judicial function independently on the basis of their assessment rules can be so pervasive and compelling as to alter of the facts and in accordance with a conscientious understanding of even that which this Court itself has already de- the law”. clared to be final x x x. Therefore, a judge “has the responsibility in an individual case to The emerging trend in the rulings of this Court is make his own decision on the outcome of the case, to decide the vari- to afford every party litigant the amplest opportunity ous issues presented and to reason through to a conclusion. He must for the proper and just determination of his cause, free express his own views on the merits, accept or reject opposing views, from the constraints of technicalities. Time and again, resolve any conflicts that exist in relevant evidence, find facts by using this Court has consistently held that rules must not be his own rendition of the facts as presented and his own perceptions of applied rigidly so as not to override substantial justice. the credibility of witnesses, and arrive at a resolution.”* In this regard, The Laguna Metts ruling has not been overturned by the Dom- dom case. The latter appears to be the exception rather than the rule. “judges are left to their own devices pertaining to issues of judicial An extension to file petition for certiorari may be allowed in the dis- draftmanship. [Judges and justices], therefore, [are] afforded consider- cretion of the Supreme Court for the most compelling reason to serve able leeway in crafting [their] decisions according to [their] own sense of the ends of justice. In the case of Philippine National Bank vs. Court form, style, content, and substance.”* In short, they “are relatively free of Appeals,* the Court, in giving due course to an appeal filed out of to adopt their own formats and styles in crafting their decisions, the time, stated: only caveat being the constitutional requirements that these be sup- It has been said time and again that the perfection of an ported by proven facts and applicable law.”* What is important, as appeal within the period fixed by the rules is mandatory and noted by Justice Keyes, is for a magistrate to decide the particular cases jurisdictional. But, it is always in the power of this Court to assigned him or her “by applying the applicable law to the actual facts suspend its own rules, or to except a particular case from its through reasoned argument, keeping within the bounds of reasonable operation, whenever the purposes of justice require it. interpretation, in light of precedent and rules of construction.”* Strong compelling reasons such as serving the ends of Conclusion justice and preventing a grave miscarriage thereof war- To conclude, while a magistrate is bound by judicial ethics, the act rant the suspension of the rules. of incorporating someone else’s work should not hinder a ponente in As it now stands, the Court of Appeals and the proper courts arriving at a just and fair conclusion supported by facts and law. In- must abide by the Laguna Metts ruling, i.e., no motion for extension of deed, the role of a judicial opinion extends beyond literary or ar- time to file petition for certiorari should be allowed. And the Supreme tistic advancement. It serves as a precedent, as a primer on law Court has clearly expressed the reason therefor – and guide for future action.* If judges and justices are to be re- The rationale for the amendments under A.M. No. 07-7 stricted by plagiarism, such that judicial writings are subjected -12-SC is essentialy to prevent the use (or abuse) of the peti- thereto, then, not only would it expand “judicial criticism” but tion for certiorari under Rule 65 to delay a case or even de- feat the ends of justice. Deleting the paragraph allowing ex- open the floodgates for opportunists, usually losing litigants, to tensions to file petition on compelling grounds did away create instability and anarchy in the judicial system by suing with the filing of such motions. As the Rule now stands, magistrates for plagiarism. Nonetheless, an attribution of the original petitions for certiorari must be filed strictly within 60 author of the incorporated material or passage, regardless of whether days from notice of judgment or from the order denying consent to do so was obtained or not, creates no pernicious implication a motion for reconsideration. on the independence, competence, or diligence of the ponente. By con- No error or grave abuse of discretion may be attributed to the proper trast, it is an indicia of the magistrate’s fairness, honesty, humility as well courts in complying with the precept of this case. as conscious desire to give credit due the original author – attributes It is often said that cases do not pass through the portals of a probably essential to the maintenance of the moral authority and integ- court of law by the mere mandate of technicalities. The Court's pri- rity of the judiciary.

Court of Appeals Journal 27

why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima POLITICAL LAW (Election Law; Rule on Succession) facie merit of the pleading sought to be expunged for IN FINE, the Comelec did not gravely abuse its violation of Section 11. This Court cannot rule otherwise, discretion when it denied Panlaqui’s motion for lest we allow circumvention of the innovation introduced proclamation. Since Velasco’s disqualification as a candidate by the 1997 Rules in order to obviate delay in the had not become final before the elections, the Comelec administration of justice. properly applied the rule on succession. x x x [F]or the guidance of the Bench and Bar, strictest x x x To simplistically assume that the second placer compliance with Section 11 of Rule 13 is mandated. would have received the other votes would be to substitute (Marcelino Domingo vs. Court of Appeals, et al., G.R. No. our judgment for the mind of the voter. The second placer is 169122, February 2, 2010 [Resolution].) just that, a second placer. He lost the elections. He was POLITICAL LAW (Election Law; Intra-party repudiated by either a majority or plurality of voters. He Leadership Disputes) could not be considered the first among qualified candidates The COMELEC’s jurisdiction over intra-party disputes because in a field which excludes the disqualified candidate, is limited. It does not have blanket authority to resolve any the conditions would have substantially changed. We are not and all controversies involving political parties. Political prepared to extrapolate the results under such parties are generally free to conduct their activities without circumstances. interference from the state. The COMELEC may intervene To allow the defeated and repudiated candidate to take in disputes internal to a party only when necessary to the over the mayoralty despite his rejection by the electorate is discharge of its constitutional functions. to disenfranchise them through no fault on their part, and to The COMELEC’s jurisdiction over intra-party undermine the importance and the meaning of democracy leadership disputes has already been settled by the Court. and the right of the people to elect officials of their choice. The Court ruled in Kalaw v. Commission on Elections that Theoretically, the second placer could receive just one the COMELEC’s powers and functions under Section 2, vote. In such a case, it would be absurd to proclaim the Article IX-C of the Constitution, "include the totally repudiated candidate as the voters’ choice. x x x ascertainment of the identity of the political party and its (Mozart P. Panlaqui vs. Commission on Elections, et al., legitimate officers responsible for its acts." The Court also G.R. No. 188671, February 24, 2010.) declared in another case that the COMELEC’s power to

REMEDIAL LAW (Civil Procedure; Service and Filing register political parties necessarily involved the of Pleadings) determination of the persons who must act on its behalf. If only to underscore the mandatory nature of this Thus, the COMELEC may resolve an intra-party leadership innovation to our set of adjective rules requiring personal dispute, in a proper case brought before it, as an incident of service whenever practicable, Section 11 of Rule 13 then its power to register political parties. gives the court the discretion to consider a pleading or paper X x x x as not filed if the other modes of service or filing were To conclude, the COMELEC did not gravely abuse its resorted to and no written explanation was made as to why discretion when it upheld Roxas’ election as LP president personal service was not done in the first place. The exercise but refused to rule on the validity of Atienza, et al.’s of discretion must, necessarily, consider the practicability of expulsion from the party. While the question of party personal service, for Section 11 itself begins with the clause leadership has implications on the COMELEC’s "whenever practicable." performance of its functions under Section 2, Article IX-C We thus take this opportunity to clarify that under of the Constitution, the same cannot be said of the issue Section 11, Rule 13 of the 1997 Rules of Civil Procedure, pertaining to Atienza, et al.’s expulsion from the LP. Such personal service and filing is the general rule, and resort to expulsion is for the moment an issue of party membership other modes of service and filing, the exception. Henceforth, and discipline, in which the COMELEC cannot intervene, whenever personal service or filing is practicable, in light of given the limited scope of its power over political parties. the circumstances of time, place and person, personal service (Jose L. Atienza, Jr., et al. vs. Commission on Elections, et or filing is mandatory. Only when personal service or filing al., G.R. No. 188920, February 16, 2010.) is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to -Justice Marlene Gonzales-Sison 28 Court of Appeals Journal

The shaping and re-shaping of the Constitution and the laws “consistent” inconsistencies can be found - the amount of civil in- are the functions of the judicial system, especially the Supreme demnity for death awarded to the heirs of the victim. Some cases Court. It has been recognized that the decisions of the highest court award an amount of P75,000.00, while others, P50,000.00. There are in the country are laws in this jurisdiction, whether it exudes with even cases that awarded P100,000.00. wisdom or otherwise. There had been a running jest in legal circles, In People vs. Victor*, a rape case, the Supreme Court first set the in- heard also in law schools, calling some decisions by the Supreme crease in the amount of civil indemnity from P50,000.00 to Court as Supreme Errors. The Supreme Court is still composed of P75,000.00 but this was meant to apply only in certain rape cases. The human beings, who are also prone to errors like the rest of us. And Supreme Court in making this leap reasoned: like some of us, it has the ability to recognize these errors and rec- “One other point of concern has to be addressed. In- tify whenever it can. As in some instances, although short of admit- dictments for rape continue unabated and the legislative re- ting that it has erred, the Supreme Court has discreetly recognized sponse has been in the form of higher penalties. The Court that its own decision should be reversed. There are times though believes that, on like considerations, the jurisprudential path that it is not apologetic and without explanation recreates or modify on the civil aspect should follow the same direction.” a doctrine, making two opposing interpretations, and leaving rival The Supreme Court thus judicially decreed further: parties to argue either way, both armed with contending Supreme “Hence, starting with the case at bar, if the crime of rape Court decisions. is committed or effectively qualified by any of the circum- If it is any consolation, our Supreme Court does not have a stances under which the death penalty is authorized by the monopoly of these deviations or inconsistencies. Even the United present amended law, [R.A. 8353] the indemnity for the vic- States Federal Supreme Court is not immune from the cycle of tim shall be in the increased amount of not less than “erring” and “rectifying”. And the jests on their account are more P75,000.00. This is not only a reaction to the apathetic socie- sardonic. A law professor in the US, which later became a judge, tal perception of the penal law and the financial fluctuation had probably tickled the minds of his students for a “basic legal over time, but also an expression of the displeasure of the myth”. The myth being that judges decide cases by applying legal Court over the incidence of heinous crimes against chastity.” rules to the facts before them. It was attributed to him to have said Taking cue from the said increase in the amount for the award of that the court's decision might turn upon what the judge had eaten civil indemnity, the Office of the Solicitor General recommended the for breakfast.* It was not reported whether he was cited for con- corresponding increase in the amount of civil indemnity in the mur- tempt. der case of People vs Mosquerra*. However, the Magistrates brushed it The importance, thus, of having a coherent and consistent aside and held that: body of jurisprudence cannot be trivialized. Otherwise, decisions of “The Solicitor General urges the increase of the civil the highest court in our jurisdiction would look like no more than a indemnity to Seventy-Five Thousand Pesos (P75,000.00) mood swing metamorphosed into a writing. The necessity for co- purportedly in accord with our ruling in People v. Victor. Reli- herence, consistency and predictability of judicial decisions gave ance thereon is misplaced. The said case applies only to con- birth to the principle of “stare decisis” or adherence to precedent. Its victions for rape qualified by any of the circumstances under main doctrine, as worded in our jurisprudence is that once a case which the death penalty is imposable under Republic Act No. has been decided one way, any other case involving exactly the same 8353. The case at bar involves a conviction for murder, for point at issue should be decided in the same manner.* In some deci- which the amount of civil indemnity was rightfully placed at sions, the application of the principle of stare decisis is invoked when Fifty Thousand Pesos (P50,000.00).” a question of law has been earlier examined and decided, and it Almost a year after People vs. Victor, the Supreme Court again should be deemed settled and closed to further argument*. made a modification on the civil indemnity for rape, but limited it to Unfortunately, having the principle of stare decisis does not guar- rape with homicide, wherein it was pegged at P100,000.00. This was antee that the seeming inconsistencies in the decisions of our Su- in the case of People vs Robles* where the Court judicially legislated the preme Court would be obviated. Two areas, albeit not grand, where increase as follows: the Supreme Court frequently deviates from precedents are pre- With regard to the civil indemnity, the court hereby rules sented here. These are the awards of moral damages and civil in- that the victim of rape with homicide should be awarded the demnity in criminal cases, and the interpretation of the term amount of P100,000.00. Prevailing judicial policy has author- “adversarial proceedings” in petition for correction of entries under ized the mandatory award of P50,000.00 in case of death, and Rule 108. P50,000.00 upon the finding of the fact of rape. Also, under Inconsistencies in Civil Indemnity recent case law the indemnity for the victim shall be in the At the latter part of decisions in criminal cases, one of the increased amount of P75,000.00 if the crime of rape commit- * Citations omitted due to lack of space. ted is effectively qualified by any of the circumstances under Court of Appeals Journal 29

which the death penalty is authorized by the applicable ages contemplated in our criminal law in the amount authorized by * amendatory laws: Thus, if homicide is committed by reason prevailing jurisprudence, while moral damages has a different basis or on the occasion of the rape, indemnity in the amount of and the amount depends on the discretion of the judge. This basis P100,000.00 is fully justified and properly commensurate more likely pertains to the Civil Code provision on Moral Damages. with the seriousness of the said special complex crime. In some cases, however, moral damages have been measured with No subsequent case was as categorical and clear as the above the same standard as civil indemnity and is now fixed at a specific cases to blaze the trail for modification or establishment of other amount by “prevailing jurisprudence”. In People vs. Glino*, the Supreme rules in civil indemnity and supersede the three landmark cases. Court rectified the “blunder” of the Court of Appeals in giving Thus, three different amounts of civil indemnity were accordingly P100,000.00 as moral damages to the heirs of a murder victim, and set: 1) P50,000.00 indemnity for death remained fixed (People vs decreased it to P50,000.00 as “prevailing jurisprudence dictates”. People Mosquerra); 2) P75,000.00 for rape attendant with circumstances vs. Hernando* did away with proof of emotional suffering for the award which would call for the death penalty under the heinous crime law of moral damages to the heirs in cases of violent death. The Supreme (People vs Victor); and 3) P100,000.00, when homicide is committed Court in this case had no reference to a precedent. But it is in a 2000 by reason or on occasion of the rape (People vs Robles). case that automatic award of moral damages in cases of violent death However, a number of cases still deviate from these landmark found its way in our jurisprudence. The Supreme Court, in People vs cases. In the 2010 case of People vs. Lalongisip*, a murder case, the Panado*, deciding through its division, stated: Supreme Court applied the 2009 case of People vs. Sarcia*, a rape case On the award of moral damages, this Court is convinced and awarded P75,000.00 as civil indemnity. The justification for the that the prosecution has amply demonstrated that the heirs award of P75,000.00 in People vs Sarcia was properly made by the suffered mental anguish to justify this award. Current juris- Court, but in applying it to People vs Lalongisip, the Court strayed away prudence has set moral damages at P50,000.00. Nonetheless, from the established doctrine. What must have led the Court to ap- we deem it proper to rethink our policy on moral damages. ply the Sarcia case to Lalongisip was the following portion of the dis- Unlike in the crime of rape, we grant moral damages in cussion in Sarcia: murder or homicide only when the heirs of the victim have “The principal consideration for the award of damages, alleged and proved mental suffering. However, as borne out under the ruling in People v. Salome and People v. Quia- by human nature and experience, a violent death invariably chon is the penalty provided by law or imposable for the and necessarily brings about emotional pain and anguish on offense because of its heinousness, not the public penalty the part of the victims' family. It is inherently human to suffer actually imposed on the offender.” sorrow, torment, pain and anger when a loved one becomes People vs. Salome* and People vs. Quiachon*, however, were both the victim of a violent or brutal killing. Such violent death or rape cases and the “heinousness” referred to in the discussion was brutal killing not only steals from the family of the deceased the circumstance where the crime of rape was considered heinous, his precious life, deprives them forever of his love, affection or that which should have warranted the penalty of death. This and support, but often leaves them with the gnawing feeling means that the consideration used in the said cases for the award of that an injustice has been done to them. For this reason, damages did not extend to all other crimes punishable by death but moral damages must be awarded even in the absence of any only in rape punishable by death. Although Lalongisip was an en banc allegation and proof of the heirs' emotional suffering. Verily, decision, the most reasonable conclusion to make is that it did not Hilda and her son Louie Gee would forever carry the emo- effectively modify the settled rules in civil indemnity as it did not tional wounds of the vicious killing of a husband and a father. make any justification for the amount of the civil indemnity. It did With or without proof, this fact can never be denied; since it not therefore tackle that issue. is undisputed, it must be considered proved. In the earlier case of People vs Tubongbanua*, where a lawyer was In 2003, the doctrine set in Panado was strengthened in the en banc murdered, the Supreme Court pegged the civil indemnity for the decision of People vs Estillore* where it was cited as basis for the auto- heirs at P75,000.00, again without any justification. In People vs Jadap*, matic award of moral damages. the Supreme Court “conforming [to] recent jurisprudence” awarded There is in fact more consistency in the award of moral damages P75,000.00 for the death of the victim, citing two 2009 cases.* On the of which the prevailing amount is also fixed at P50,000.00; except for other hand, People vs. Baluntong*, another 2010 case, awarded some cases such as People vs Estacio and Ang*, where the Supreme Court P50,000.00 as civil indemnity, while in People vs. Bustamante*, the Su- kept silent on the award of moral damages amounting to more than preme Court affirmed the award of civil indemnity by the Court Ap- P50,000.00 and with its silence, the ruling of the Court of Appeals was peals in the amount of P50,000.00 which it justified as in line with deemed affirmed. Also, in the case of Safeguard Security Agency Inc., & prevailing jurisprudence. Pajarillo vs Tangco et al.*, the Supreme Court upheld the award of P1M In relation with damages, the amount of moral damages in as moral damages to the heirs of a woman who was shot dead by a crimes is another area where jurisprudence seem to vary. In People vs. security guard of a bank. The original case was a separate civil action Victor,* the Supreme Court modified the award of the trial court, for quasi-delict, but the Supreme Court cited People vs. Teehankee Jr.* to dropped the moral damages and awarded instead a civil indemnity in justify the P1M-moral damages. In Teehankee, the Supreme Court tem- the increased amount of P75,000.00. It distinguished moral damages pered the P13M award of moral damages by the trial court to P1M to from civil indemnity. The latter being actual or compensatory dam- the heirs of Maureen Hultman. 30 Court of Appeals Journal

"For justice brings peace of conscience, while injustice causes boo Organ of Las Piñas. torment and anguish... Justice is approved, and injustice con- We were then first welcomed by Professor Nico Schrijver, Presi- demned, by the common agreement of good men." dent of the Dutch Branch, and Incoming President of the ILA who

Said immortal words of Dutch lawyer Hugo Grotius, known as called the conference to order and after which he noted the passing the father of International Law, echoed in my mind as I stepped into of the much-respected Chairman of the ILA, Lord Slynn of Hadley, the grand entrance of Haagsche Hogeschool (The Hague University) who had served the ILA in a most excellent way for 21 years. in The Hague, Netherlands, site of this year's 74th Conference of the Lord Slynn's successor, The Rt Hon Lord Mance, a judge of the International Law Association (ILA). English Supreme Court came up next and announced that it was the For five (5) days from 15 August 2010, my fellow eternal student 100th anniversary of The Netherlands Branch of the ILA and then of law, Justice Priscilla Baltazar-Padilla and I found ourselves partici- congratulated the same branch for hosting this year's conference. pating with much enthusiasm at the sessions and meetings of the Lord Mance in his closing remarks mentioned the outstanding pro- numerous ILA committees and study groups and engaging in inter- gramme prepared by the organizers and then wished everyone a suc- disciplinary debate with the other participants from all over the globe cessful conference. representing various branches of law as well as other academic disci- Not to be outdone, the Dutch government sent a representative plines. All of these, to further our knowledge of the core issues of in the person of Ernst Hirsch Ballin, the Minister of Justice of The international law and its present day challenges and at the same to Netherlands. He reminded the delegates that not all nations profess- foster and cultivate friendships with fellow law scholars and luminar- ing to be democratic adhere to the rule of law and to the basic princi- ies. ples of international dimensions. Ironically these are the nations who Indeed, what better place to hold an international conference are fanatical and intolerant to the emancipation of human rights un- than the city aptly referred to as the International City of Peace and dermining the very principles of democracy and justice. Minister Justice. It all began in the late 1800's with the foundation of the Con- Ballin then enjoined us, as scholars, practitioners and politicians, to ference on Private International Law and the First Hague Peace Con- monitor these developments, understand them, oppose them and ference. More than a century later, the Hague has been called home finally, to send a clear and loud message that democracy and justice for several international organizations, most notably the International must go hand in hand. I just hope that Minister Ballin was not think- Court of Justice. Furthermore, The Hague likewise plays padrone to ing of the Philippines in making said remarks. the International Criminal Court, the International Criminal Tribunal During an interlude, we were treated to a magical performance for the former Yugoslavia, the Organisation for the Prohibition of by Vincent van Amsterdam, a famous Dutch accordion player, who Chemical Weapons, the Permanent Court of Arbitration and Euro- played familiar and invigorating classical compositions, prepping us just. up for the challenging work ahead. Resonating the appellation of the famous city which hosts it, the Delving into the pith of the conference, the first working session theme for this year's ILA Conference is “De Iure Humanitatis: Peace, that I attended was the General Opening Session chaired by Profes- Justice and International Law”. The initial engagement transpired on a sor Nico Schrijver and was entitled Urgent Global Issues: the Role of Inter- chilly and rainy night of August 15 when all the delegates were her- national Law. On said session, it was discussed how international law alded to the Provinciehuis (Province Hall), for the Welcome Recep- plays an important part in resolving significant issues like access to tion hosted by no less than by the Queen’s Commissioner for Zuid natural resources, ongoing threat of nuclear arms, structural world- Holland (South Holland). Behind the somber mood of the reception, wide poverty, and manifold human rights violations among others. it became apparent to everyone that it would be the last calm night The question on how international law interacts with other disci- before a thundering storm, as the conference organizers managed to plines was also addressed as well as the need for a further attract more than 600 of the best and brightest of the world's jurists “juridification” of international order and its limits. and legal practitioners [including nine (9) Filipinos – myself, Justice Padilla, Thereafter, parallel sessions were simultaneously held with pro- Justice Elihu Ybañez, Justice Danton Bueser, Justice Rodrigo Lim Jr., QC vocative titles such as The ICC: Court of Last Resort or a New “Gentle RTC Judge Vivencio Baclig, Parañaque RTC Judge Raul de Leon, Makati Civiliser of Nations” which was chaired by Mirjam Blaak, Deputy Head RTC Judge Fortunito Madrona and the Secretary of ILA Philippines Branch, of Mission of the Uganda Embassy in Brussels; The Impact of Interna- Atty. Zenaida Reyes,] foreboding of a fiery exchange of ideas and opin- tional Legal Standards on International Commercial Arbitration which was ions for the next four (4) days. chaired by Lawyer Jeremy Carver and Islamic Finance and Influence of The ILA Conference then officially commenced with a formal Religion on Law chaired by Rene Smits, a Professor at the University opening session the following morning. As the delegates enter The of Amsterdam. Hague University, a campus entirely surrounded by water, making it a Aside from the regular working sessions, the delegates were also city within a city, we were greeted by cheerful bell-like sounds of a encouraged to attend the meetings of the 26 committees and six (6) Draaiorgel (Dutch pipe organ) which reminded me of our own Bam- study groups, who were tasked to study broad and unexplored areas Court of Appeals Journal 31 of international law such as Space Law, Cultural Heritage Law, Interna- marvel at the Castle Loevestein in South Holland were Hugo de tional Family Law, Sovereign Insolvency and Feminism & International Law. Groot or Grotius was incarcerated and where he made a daring It is noteworthy to point that some of committees and study groups escape during the Dutch Revolt. During downtime, we would already have advanced reports waiting for their final approval at the travel to picturesque beach side resorts which are plenty in the city conference itself, while some are still in their development stages considering that it is located at the edge of the North Sea and enjoy waiting for inputs and suggestions from us, the delegates. a brisk walk in a westerly breeze. The ILA Conference, however, was not just about constant Finally, it was a sad day for all of us at the official closing ses- discussions and debates. On the evening of 17 August, Justice sion, as we bade farewell to our newfound friends and colleagues. It Padilla and I, together with Judge Vivencio Baclig of RTC Quezon did not help also that the celebrated and dashing Rémy van Ke- City and Judge Raul de Leon of RTC Parañaque attended Embassy steren was playing melancholic compositions in his harp. At the Night where we were able to meet the Ambassador of the Philip- same time, we were also happy and grateful for the things we have pines to The Netherlands, His Excellency Mr. Cardozo Luna, who learned and discovered; most important of which was stated by thereafter graciously feted us to a simple but sumptuous dinner to- outgoing ILA President Eduardo Grebler: that in a world of eco- gether with Consul General Maria Anna Lilia de Vera. nomic catastrophes, civil unrest and environmental abuse, we, as One must also not forget that the city of Hague beams with international lawyers must continue to persevere in advancing the historical and tourist spots for us to visit. It is a great convenience view that the values of civilization have to be respected as the law then that our hotel is located just opposite the Binnenhof (the Dutch of humanity-as international law. With that, I look forward to see- parliament) and within walking distance of parks and shopping ing the delegates again in the next biennial conference which would streets. On 18 August, some of the delegates including myself were be held in Bulgaria. Tot ziens! fortunate enough to dine at De Ridderzaal (Hall of Knights) which is

the main building of the Binnenhof. At the hall, I could not help but to be amazed at the Gothic-inspired structure, which looks like a church and is adorned by magnificent stained glass windows depict- Court of Appeals Journal ing the coats of arms of Dutch cities. We were told that the wooden EDITORIAL COMMITTEE heads symbolizing eavesdroppers from the higher powers are sup- JUSTICE NOEL G. TIJAM posed to deter members of the assembly from lying. I wonder then Chairman-Editor if we could adopt the same wooden heads in our courts to dissuade JUSTICE JOSE C. REYES, JR. perjurers. JUSTICE MAGDANGAL M. DE LEON Being magistrates of the Court of Appeals and formerly of the JUSTICE PAMPIO A. ABARINTOS lower courts, Justice Padilla and I could not help but pay a visit to at JUSTICE APOLINARIO D. BRUSELAS, JR. JUSTICE MARLENE GONZALES-SISON least one of the functioning judicial courts at The Hague. What bet- JUSTICE PRISCILLA J. BALTAZAR-PADILLA ter court to visit then than the renowned International Criminal JUSTICE FRANCISCO P. ACOSTA Court or the Cour Pénale Internationale? It is important to note that JUSTICE STEPHEN C. CRUZ JUSTICE RODIL V. ZALAMEDA the ICC came into being at the establishment of the Rome Statute in JUSTICE EDGARDO A. CAMELLO order to end impunity for the perpetrators of the most serious Members crimes to the international community as a whole such as genocide, CHIEF JUSTICE RENATO C. CORONA crimes against humanity, war crimes and crimes against aggression. JUSTICE NORMANDIE B. PIZARRO Upon reaching our destination, Justice Padilla and I were aston- JUSTICE AMY LAZARO-JAVIER ished that the building of the ICC, by itself, already commanded awe ATTY. MARIA CHRISTINA M. ATENDIDO ATTY. EDEN R. RABORAR and respect. Like the Petronas Towers in Kuala Lampur, the ICC MS. MANI F. GELLA building comprises of two mighty structures connected by a sky Contributors bridge at the topmost floor. We were, however, disappointed to find MR. FRANCIS S. BRUNO Photographer that there were no scheduled hearings during our visit. Nevertheless, the Security Personnel were kind enough to allow us to enter the MARIA CECILIA C. TIJAM PAUL CHRISTIAN C. TIJAM ATTY. RUTH P. RAMOS ATTY. IRA FRITZIE C. ROJO premises and take photographs of the interior. I was surprised then ATTY. ANNE M. CORNELIO ATTY. MARJ M. SONGGADAN to find that the courtroom was set up very plainly yet elegantly. The CHERYL JOY D. DEAN JOHN O. CONANAN NELIA V. SIAO MARISSA P. MELGAR courtroom seemed to have been painted with a tinge of beige and EDMOND S. PILAPIL CELSA M. PILAPIL there are window glass panels surrounding the room where the pub- JAY L. SEBASTIAN DARWIN A. ALAMARIS lic could observe the proceedings. Conspicuous are the numerous Staff cameras installed all-around the courtroom which serve as a constant The Editorial Committee welcomes articles, news and other manuscripts for reminder that the most evil and despicable criminals are tried here. publication. Please submit all contributions to the Office of the Editor at Room After visiting the ICC, Justice Padilla and I paid homage to the 401, Court of Appeals Annex Bldg., Ma. Orosa St., Ermita, Manila. Comments and criticisms are also welcome. magnificent and extensive works of art of Rembrant and Vermeer at the Mauritshuis Royal Picture Gallery. Afterwards we went on to 32 Court of Appeals Journal

The Court of Appeals Committee on Gender and Devel- for higher gender awareness; and 5) resources mobilization. opment Focal Point (CA-GAD Focal Point) was created by To implement these core strategies, the Committee con- virtue of OFFICE ORDER No. 104-07-RTR pursuant to the ducts seminar- workshops on gender sensitivity and relevant Department of Budget and Management, National Economic laws, promotes and advocates the use of gender-fair language and Development Authority and National Commission on in court, pushed for the creation of the Committee on Deco- the Role of Filipino Women's Joint Circular No. 2004-1 dated rum and Investigation (CODI) in Manila as well as in the court April 5, 2004. satellite stations in Cebu City and Cagayan de Oro and spon- The CAD-GAD Focal Point was first organized in 2007 sors livelihood as well as health and welfare programs. with Justice Josefina Guevara-Salonga as chairperson. Pres- As its launching activity, the Committee sponsored a Two- ently, the Committee is chaired by Justice Priscilla J. Baltazar- Day Intensive Training Seminar on Gender Sensitivity and Padilla and co-chaired by Justice Marlene Gonzales-Sison. Its Awareness on November 29-30, 2007 for its officers and Vice-Chairperson is Justice Isaias P. Dicdican and his Co- members aimed at preparing them for their task of fostering Vice-Chairperson is Justice Rodil V. Zalameda. The Commit- gender sensitivity and awareness in the Court. tee's membership is made up of the Clerk of Court – Atty. In 2008, the Committee conducted a Gender Orientation Teresita R. Marigomen; ACAE President – Mr. Amiel C. De Seminar for Court Officials and Employees on May 27, 2008 Vera; Personnel Chief – Ms. Juanita Tibayan-Castro; Budget and a Planning Workshop on Gender Related Activities on Representative – Ms. Virginia C. Velacruz; Office of the Pre- August 23-25, 2008. siding Justice’s Representative – Ms. Liza Regala; its Secretary In line with its continuing campaign for gender awareness – Ms. Rhodora L. Bautista; and Documentors – Ms. Eliza- and sensitivity, in 2009, a series of seminars and training work- beth Sorianosos, Ms. Alda Floria and Ms. Kereen R. Vasquez. shops on gender orientation and sensitivity was sponsored by To facilitate its functions and activities, the Committee is the Committee for the non-lawyer employees of the Court. A divided into four sub-committees, to wit: 1) Seminar- film showing was also held to better illustrate gender issues in Workshop Committee – headed by Justice Priscilla J. Baltazar relation to moral and social values. The Committee had also -Padilla; 2) Health and Welfare Program Committee – headed ventured in livelihood trainings with the assistance of other by Justice Marlene Gonzales-Sison; 3) Livelihood Committee government agencies like the Department of Science and Tech- – headed by Justice Rodil V. Zalameda; and 4) Other Con- nology (DOST). cerns and Activities Committee – headed by Justice Isaias P. For this year (2010), the CA-GAD Focal Point is persis- Dicdican. tently working to further the court employees’ growing aware- With its VISION – “A Court of Appeals that recog- ness on gender sensitive issues and development to succeed in nizes, respects, fulfills, and protects the equal and inal- attaining gender equality and a gender responsive working en- ienable rights of men and women who are in search of vironment. The Committee continues to sponsor seminar- justice that is swift, fair and judicious and likewise re- workshops on the Convention on the Elimination of all forms sponsive to the needs of all its employees.”, the CA- of Discrimination Against Women (CEDAW), gender sensitiv- GAD Focal Point under the active stewardship of its current ity and sexual harassment for lawyers and non-lawyers in its chairperson, Justice Baltazar-Padilla, is soaring high in the Manila, Cebu and Cagayan de Oro Stations. So far, two semi- achievement of gender equality among court personnel in nar-workshops have been held for CA Manila lawyers and one terms of opportunities for training, development, promotion for CA Cebu City personnel, both lawyers and non-lawyers. and advancement. Another one is coming-up for CA Manila non-lawyers which To this end, the Committee has adopted the following will take place on October 7 to 8, 2010. The CA-GAD has also CORE STRATEGIES that would fully insure gender aware- scheduled such seminar-workshop for CDO staff which will ness and sensitivity among court personnel which in the long be conducted from November 4 to 5, 2010. run would build the foundation for a gender sensitive work Livelihood seminars and health care programs are also be- environment in the judiciary. These core strategies are the ing advanced by the CA-GAD Focal Point as part of its drive following: 1) information dissemination and awareness build- to promote economic empowerment and health awareness and ing; 2) research and documentation of the decisions on gen- wellness among the Court employees, both male and female. der related cases, gathering of gender-responsive database, The CA-GAD previously sponsored trainings on soap- and review of policies on equality and non-discrimination; 3) making, mango product processing, detergent and fabric con- partnership building and networking; 4) promotion of the ditioner production and jewelry-making. The next livelihood use of gender-fair language, core gender messages and rituals CA-GAD/p.34 Court of Appeals Journal 33

Mondays at the Court of Appeals (CA) are not what from memory. they used to be any more. At least, Monday mornings, that is. On the second Monday, wearing straw hats and green The seeming perfunctory compliance with attendance at shirts, the Reporter's Division regaled everyone with their Monday flag ceremonies is now a thing of the past. As a mat- song-and-dance number. Not only did they sing, they swayed ter of fact, attendance, marked by renewed fervor, has im- as well to the lilting tune of Tayo Na Sa Antipolo, it being proved considerably of late. Perhaps this could be attributed the month of May when pilgrims pay homage to the Virgin in largely to the musical performance that follows immediately Antipolo. after the singing of the last hymn. The next group to show off their entertainment prowess This special attraction that features a different division was the all-women Accounting Division who underscored every Monday to render a musical number for the listening the gender sensitivity program of the government. Clad in pleasure and viewing enjoyment of all, has somehow set the their pink teeshirts (for which they credit the CA Committee mood and pace of the work week ahead. on Gender Sensitivity) and sporting color- rimmed glasses, The security guard- of- the- month award as well, has they rendered a faithful interpretation of Celeste Legaspi's in- now become a regular fixture of the flag raising ceremony fectiously catchy song, Mamang Sorbetero. As a fitting finale, wherein the recipient of the award is asked to say a few they led in singing the happy birthday song in honor of the PJ words after being handed a Certificate of Recognition. (whose birthday it was, May 11) who graciously acknowledged A brainchild of Justice Normandie B. Pizarro, Chairman the gesture. of the Committee on Security, this award-giving scheme was The color-coded Division Clerks of Court (DCC) and conceived to serve as an incentive for the guards to render their staffs (in vibrant yellow, verdantly-rich green and cool-to above par if not excellent service. -the eyes aqua blue tops) had the entire CA witness their early Early Monday morning meetings start the day of a busy morning calisthenics/aerobics with their rendition of the week for Presiding Justice ANDRES B. REYES, JR. as he rhythmically bouncy Buttercup song. Four comely female confers with the Division Chiefs before the 8:30 A.M. flag DCCs in their figure-hugging teeshirts gaily led the muscle- raising to monitor the official business of the Court. The flexing and hip-swaying exercises as their male counterparts Chiefs are expected to be in complete attendance at these excitedly waited in the wings for their cue. meetings where some concerns that affect the employees' Not to be outdone was the Medical and Dental contin- daily work performance are addressed. gent. Tapping their limitless reservoir of home-grown talent, Owing to the fact that the flag ceremony is a gathering they unleashed their creative juices that flowed non-stop be- of Court employees, Monday mornings are also the most fore an appreciative crowd. Conceptualized by the Court's ar- opportune time to introduce new appointees to the bench tistically inclined dentist, Dr. Ronnie Yniguez, these healers of and to announce (as funds would allow) forthcoming bonan- the Court's infirmed “prescribed” their version of Michael zas like bonuses, salary increments and the like which are Jackson's “Heal the World” as an antidote to the societal ills almost always met with thunderous approval. And there's of the universe. nothing like hearing them straight from the Presiding Justice It was Beatles time once more when the General Services (PJ) himself. Division's turn came up. They sang their hearts out with their However, nothing beats the eagerly-awaited musical en- rendition of the more popular Beatles compositions accompa- tertainment that comes next to the singing of the Philippine nied by karaoke and video paraphernalia. 'Kung baga, sing along Judiciary Hymn. ang dating nila'. At the initial presentation, the Judicial Records Divi- The Office of the Clerk of Court teamed up with the sion (JRD) appeared in all shades of red and caught every- Office of the Assistant Clerk of Court, the Raffle Commit- one by surprise with their vocal rendition of a Beatles' (one tee Staff and the Security Force. With such a formidable of the PJ's favorite singing groups) hit song, an all-time fa- grouping, performing a medley of song, dance and acrobatic vorite entitled, Yesterday. Although they did not have ample stunts was a breeze. time to prepare, still they proved equal to the task. This, in As the performances got under way, the special effects spite of the fact that majority of the JRD employees are post became more progressively high tech which left the viewers Beatlemania babies. They, of the Lady Gaga generation, sang mesmerized. Varied as the presentations were, it was highly with aplomb and not a single stray note except that they had evident that much effort, planning and expense (for some) to glance every once in a while at their “librettos” (a.k.a. codi- went into them. gos) inasmuch as a good number of them could not sing it To signal the onset of the rainy season, uniformly colored CA Got Talent/p.34 34 Court of Appeals Journal

CA-GAD...from p. 32 ground with the interplay of colors as they marched to the tune of Y.M.C.A., a song made popular by the Village Peo- project will be on basic automotive trouble-shooting me- ple, one of the singing sensations of the 80's. chanics. In full force, from the Chief to their Jovit Baldivino look- Free pap smear check-up was given to the Court's inter- alike (the Pilipinas Got Talent grand winner) the Property ested female workers. A seminar on prostate cancer and free Division nostalgically brought back the 1980's with their prostate screening were given on September 23, 2010. Rico Mambo dance number which they executed with syn- It can be easily discerned from the foregoing projects copated steps to perfection. and activities of the CA-GAD Focal Point that the said A Muslim motif was the choice of the Management and committee does not only cater to women's concerns, inter- Audit Division. And no Muslim princess dance (evocative of ests and needs. As repeatedly stressed by its chairperson, the Bayanihan Dance Company's Singkil) would be complete Justice Priscilla J. Baltazar-Padilla, gender sensitivity and without the signature gold umbrella. Thus, their meticulously development connote gender equality. An excerpt from the decorated parasol provided their dance sequence with a sem- welcome remarks she delivered at the last seminar- blance of authenticity. The rented confetti blaster that workshop for CA Manila lawyers held on September 9 to coughed up multi-colored shredded paper and which took the 10, 2010 is quoted hereunder – Audit people half a day to clean up was all worth it, so they “Many equate gender-sensitivity and gender responsive- professed. ness to feminism. This is an erroneous notion. To be gender- The Fiscal Management and Budget personnel threw sensitive and gender-responsive does not mean to be feminist. caution to the wind as they splurged on their internationally- The call is for us to accord equal rights and chances to all, inspired costumes. For global effect, the audience was treated regardless of sex. to a parade of nations that was ushered in by a chorus of The wrong notion is not at all surprising. The same is multi-lingual songs that permeated the morning air. On the founded on the historical fact that for the longest time, women other hand, the Cash Division cashed in on their dancing were not able to enjoy rights and avail of resources and oppor- abilities. Their execution of Bus Stop, a song popularized in tunities which were then regarded as exclusive to men. the 60's by the Hollies, a British singing group, earned ap- Women had fought many battles to better their condition and proval from the PJ no less, who was visibly pleased with the uplift their lives, vis-a-vis the male members of the commu- musical number. nity. Their fierce struggle had paid off but it cannot be denied Even as the last performance from the divisions has that there is a lot more to achieve and work for. While many ended, the calls for peace, unity, reconciliation and mutual laws are now in place aimed at protecting women's rights and understanding so palpable as recurring themes in most pres- interests, the latest of which is Republic Act 7190 or the entations still resonate in the sacred portals of the Court. May Magna Carta for Women, one undisputed and sad fact is be the message that was being conveyed was that all of these that discrimination and inequality still do exist in the differ- can be achieved through music which is a universal language ent sectors of our society. It is in acknowledgment of this that transcends borders. reality that many still wrongly think that gender-sensitivity The guessing game on who will be the next wave of per- and gender-responsiveness mean feminism. formers ended when the Honorable Presiding Justice xxx gender-sensitivity and gender-responsiveness mean Reyes, Jr. and his workaholic staff (accomplished dancers providing equal opportunities for men and women ensuring as well) in their fire-engine red outfits cha-chaed to the Latin equal access not only to resources, but to benefits and services beat of Michael Buble's Sway With Me, to everyone's de- as well xxx.” light. Now, the question that is being asked is: When will the While women empowerment is part and parcel of the Honorable Associate Justices follow in the PJ's footsteps or CA-GAD's goal, the same is not geared to make them rise rather, “footwork”? higher than the male members of the society but rather to Truly, this welcome innovation has unmistakably revolu- make them co-equal partners of men in nation-building. tionized Monday mornings at the CA. It has certainly brought more life and color to the Court. Definitely, it caught the em- ployees' imagination. A crowd- drawer, others say. It engen- dered a spirit of friendly and wholesome competition among CA Got Talent...from p. 33 the Court personnel. And best of all, as everyone will agree, flag ceremony attendance has been enhanced significantly by blue and white umbrellas shielded the CA's front lawn when it. the Library, ISDD and MISD took center stage. Leaving But, if someone were to choose a single group for its out- nothing to chance, they came equipped with water hoses to standing performance, that particular someone will be hard put simulate the rain in the event the weather did not cooperate. in doing so mainly because the CA does not only have a pleth- Reminiscent of independence day parades, the Person- ora of talent but, without sounding vainglorious, may well be a nel Division turned the CA grounds into a veritable parade fountain-head of gifted performers second to none.

Court of Appeals Journal 35

RA 9048...from p. 7 Rule on Reversion...from p. 19 all procedural rules for adversary proceeding must be observed. Black's acquiring private properties such as donation, sale, or any other Law Dictionary defines adversary proceeding as “one having opposite mode of acquiring ownership? parties, contested, as distinguished from an ex-parte application, one of The determination of just compensation is quite as open to which the party seeking relief has given legal warning to the other party, possibilities as the requirement of a specific and immutable public and afforded the latter an opportunity to contest it” (lifted from Republic v. purpose. For one, how are improvements to be valuated? Based on Kho, et al., G.R. No. 170340, June 29, 2007) or “a proceeding where all what date? And if the improvements consist of structures essential interested parties are impleaded, or at least notified, and allowed to be to public service, are they to be demolished as well? If a new peti- heard before the proposed changes or corrections in the civil register tion for expropriation is required, would just compensation be are effected.” (Republic v. Benemerito, G.R. No. 146963, March 15, 2004). again paid? And how much should the just compensation be? Of With the advent of Republic Act 9048, the correction of clerical or course, there can be no res judicata when it comes to expropriation typographical errors in entries in the civil register has likewise been proceedings.* removed from the ambit of Rule 108 unless and until a petition has In summary, the rulings provide a trend to humanize the been filed with the appropriate administrative officer and the same has power of eminent domain. They show a tendency or a pattern to been rejected by the latter. restore power to the people inasmuch as the people are given more Subject to the aforestated rule, the Supreme Court even enunciated platforms or portals upon which to launch challenges to the exer- that Rule 108 now applies to substantial changes and corrections of cise of eminent domain. But because eminent domain is also a entries in the civil register, provided, appropriate adversary proceeding is conducted. (Silverio v. Republic, supra; Republic v. Cagandahan, G.R. No. means of social justice, as in the case of agrarian and urban land 166676, September 12, 2008). reform, these eager assaults on eminent domain open this and In the cases of Silverio and Cagandahan, the High Tribunal had the other social justice measures to viable degrees of contest. In this occasion to rule on whether or not change of sex as recorded in the situation, the desire to humanize power becomes an instrument of civil register may be done under Republic Act 9048. The Supreme reverting people oriented policies to those who hold power in society. After Court resolved this controversy in the negative. all, agrarian and urban land reform programs were intended to Section 2 of Republic Act 9048 provides that the correction must balance inequities in society so that those who are “have nots” may not involve the change of nationality, age, status, or sex of the peti- have something in life. Hence, the story is really one of power to tioner. As the change applied for relates to sex, the filing of an adminis- people and back. As things stand, the rulings are a double-edged trative petition under Republic Act 9048 is not the correct remedy. The sword that flows from the liberalized rule on reversion of expro- applicable procedure is Rule 108 of the Rules of Court. priated property to its original owner. No doubt, however, the Incidentally, in Silverio case, the Supreme Court ruled that the Supreme Court in its wisdom would know how to balance compet- petition should have been turned down by the trial court, sex change or ing interests and to cut and cut clean. reassignment as ground not being among those recognized under Rule 108. Whereas in Cagandahan case, the Supreme Court upheld the trial court’s grant of the petition for change of sex for the reason that the petitioner therein has a medical condition known as Congenital Adrenal Pilipinas, Tsina…from p. 3 Hyperplasia or CAH which means that the petitioner is intersex pos- sessing the biological characteristics of both male and female sexes. The sa ating pansariling kapakanan. Ang ating suliranin lamang ay ang petitioner’s preference to be a male should be respected, the High kung papaano natin malalagpasan ang sinasabi ni Tikyo na “mental Court stated, considering that it will cause no harm to others and that colony” at kung papaano natin muling masasariwa ang dangal, petitioner’s male characteristics have become more dominant. As a tapang, at lakas ng loob ng ating mga bayaning Pilipino na nangahas necessary consequence, petitioner’s first name was also changed from lumaban sa mga super-lakas na Espanya at Amerika sa kabila ng Jennifer to Jeff. kahinaan at kakulangan para lamang maitaguyod ang ating kalayaan To summarize, the present rule is that before a petition for change at kasarinlan. Huwag nating kalimutan na tayo ang unang bayan sa of first name or for correction of clerical or typographical error in an Asya na siyang nagpumiglas sa tanikala ng mga mapanakop na mga entry in the civil register may be taken cognizance of by a court of jus- dayuhan. Nasupil man ang ating mga bayaning ninuno, hindi naman tice, the petitioner must first file the proper petition before the appro- napuksa ang damdaming malaya. Tayo ngayon ay isa nang malayang priate administrative officer with whom the primary jurisdiction to rule bansa at sana'y maunawaan natin na ang pagiging malaya ay hindi on the matter is vested. It is only after such application has been denied nakamit sa madaliang paraan at lalu naman ito'y hindi mapananatili by the administrative officer that the corresponding petition in court ng ganyan-ganyan na lamang. Sa pamamagitan ng masusing pag-aaral may be brought. Otherwise, the petition is dismissible outright due to ng ating kasaysayan ay maaari nating mabuo ang pananaw na maka- prematurity or non- availment/exhaustion of the administrative rem- pagpapakita ng ating katatagan sa gitna ng namumuong iringan ng edy/remedies provided under Republic Act 9048. Amerika at Tsina sa dako ng ating karagatan.

36 Court of Appeals Journal

PJ’s Message...from page 1

The third week of September and particularly the 19th day of the month, are especially significant for all of us who are directly engaged in the legal profession. First celebrated Republic of the Philippines in 1995 and 1975, respectively, Philippine National Law COURT OF APPEALS Week and Law Day emphasize for all Filipinos that the rule MANILA of law is indispensable to a sound and vigorous democracy. OFFICE ORDER NO. 53-10-ABR The Court of Appeals, vested with the widest jurisdiction A. STANDING COMMITTEES among all appellate courts, upholds the rule of law with the work we do everyday. From the erudite ponencia of a magis- 1. COMMITTEE ON ETHICS AND SPECIAL CONCERNS Chairperson - J. Portia Aliño-Hormachuelos trate to the nimble binding by a stitcher, we maintain respect Members: J. Rosalinda Asuncion-Vicente for the law and obeisance to justice in a very real way. J. Mariflor Punzalan-Castillo Through the support of our colleagues, we have made some J. Rodrigo F. Lim, Jr. encouraging strides through the institution of the Zero Back- J. Francisco P. Acosta log Project 2010. We have instituted a new and improved 2. COMMITTEE ON PERSONNEL Court of Appeals Case Management Information System Chairperson - J. Hakim S. Abdulwahid (CMIS v.2), which will soon provide real time reporting and Members: J. Rosalinda Asuncion Vicente monitoring of cases. In the wake of the recent bomb scares J. Isaias P. Dicdican and the unfortunate incident last August 23, we have adopted J. Romulo V. Borja heightened security procedures, expanded the security com- J. Antonio L. Villamor 3. COMMITTEE ON BUDGET AND FINANCE plement, and purchased additional equipment to reasonably Chairperson - J. Remedios Salazar-Fernando guard against threats to our safety, improve security service, Members: J. Juan Q. Enriquez, Jr. and ultimately secure the delivery of justice. Currently, we are J. Vicente S.E. Veloso likewise taking steps to refurbish our buildings in order to J. Isaias P. Dicdican give the public a Court of Appeals that is both efficient in its J. Normandie B. Pizarro work and dignified in its stature. With the recent formaliza- J. Antonio L. Villamor tion of real estate donations in Cebu and Cagayan de Oro, we J. Danton Q. Bueser also come closer to the goal of having stations that become 4. COMMITTEE ON SECURITY the dignity of this Court. Chairperson - J. Normandie B. Pizarro Members: J. Ricardo R. Rosario Finally, the four weekends of this month see another J. Romeo F. Barza multitude of aspirants to the Philippine Bar hurdle what J. Elihu A. Ybañez could be the most difficult examination of their lives. Some 5. COMMITTEE ON RECORDS MANAGEMENT & IN- of them are our colleagues here at the Court who, like us, FORMATION SERVICE dream of no task more noble than, “to rule conscience free, Chairperson - J. Rosalinda Asuncion-Vicente with sound equity, [and] dispense justice swift and real.” As Members: J. Francisco P. Acosta they journey closer to the legal profession, we too, move J. Franchito N. Diamante nearer the honor and distinction of our approaching 75th An- J. Amy C. Lazaro-Javier niversary. J. Edgardo L. DeLos Santos J. Edgardo T. Lloren As you read in these pages the Court's development of the nation's law and jurisprudence, I bid you accept my most 6. COMMITTEE ON EMPLOYEES' WELFARE AND BENEFITS heartfelt greetings: Chairperson - J. Portia Aliño-Hormachuelos To our Muslim brethren –Eid Mubarak and a happy Members: J. Jose C. Reyes, Jr. hariraya! J. Estela M. Perlas-Bernabe To all, a very happy Law Week and Law Day! J. Marlene Gonzales-Sison And to those who have just completed this year's Bar J. Rodil V. Zalameda examinations –congratulations and best wishes as you await 7. COMMITTEE ON LEGAL RESEARCH AND SERVICES the rewards of your labor. Chairperson - J. Amelita G. Tolentino Finally, allow me to extend my sincerest gratitude to the Members: J. Isaias P. Dicdican J. Romulo V. Borja following magistrates who continue to support the Court's J. Ruben C. Ayson development through our various projects and initiatives: 8. COMMITTEE ON BUILDINGS AND GROUNDS

Court of Appeals Journal 37

Chairperson - J. Bienvenido L. Reyes J. Michael P. Elbinias Co-Chairperson: J. Pampio A. Abarintos J. Ramon A. Cruz

Members: J. Estela Perlas-Bernabe B. OTHER COMMITTEES J. Sesinando E. Villon 16. COMMITTEE ON RAFFLE J. Normandie B. Pizzaro Chairperson - J. Jose C. Reyes, Jr. J. Ramon R. Garcia Co-Chairperson: J. Fernanda Lampas Peralta J. Amy C. Lazaro-Javier Members: J. Japar B. Dimaampao 9. COMMITTEE ON PURCHASE AND ACQUISITION J. Celia C.Librea-Leagogo OF COURT FACILITIES, EQUIPMENT AND SUPPLIES J. Mario V. Lopez Chairperson - J. Juan Q. Enriquez, Jr. 17. COMMITTEE ON TRANSPORT Members: J. Japar B. Dimaampao Chairperson - J. Ramon M. Bato, Jr. J. Sesinando E. Villon Members: J. Ricardo R. Rosario 10. COMMITTEE ON RULES J. Ruben C. Ayson Chairperson - J. Rebecca De Guia-Salvador J. Manuel M. Barrios Members: J. Mario L. Guariña III 18. COMMITTEE ON CASELOAD AND STATISTICS J. Rosmari D. Carandang Chairperson - J. Mario L. Guariña III J. Hakim S. Abdulwahid Members: J. Rodrigo F. Lim, Jr. J. Noel G. Tijam J. Franchito N. Diamante J. Magdangal M. De Leon J. Amy C. Lazaro-Javier J. Apolinario D. Bruselas,Jr. 19. COMMITTEE ON MUSIC AND CULTURAL ACTIVI- 11. COMMITTEE ON THE COURT OF APPEALS JOUR- TIES NAL Chairperson - J. Magdangal M. De Leon Chairperson - J. Noel G. Tijam Members: J. Estela M. Perlas-Bernabe Members: J. Jose C. Reyes, Jr. J. Amy C. Lazaro-Javier J. Magdangal M. De Leon J. Elihu A. Ybañez J. Pampio A. Abarintos 20. COMMITTEE ON SPORTS AND RECREATION J. Edgardo A. Camello Chairperson - J. Vicente S.E. Veloso J. Apolinario D. Bruselas,Jr. Members: J. Normandie B. Pizarro J. Marlene Gonzales-Sison J. Florito S. Macalino J. Priscilla J.Baltazar-Padilla J. Rodil V. Zalameda J. Francisco P. Acosta J. Stephen C. Cruz J. Stephen C. Cruz J. Samuel H. Gaerlan J. Rodil V. Zalameda 21. COMMITTEE ON ENVIRONMENT 12. COMMITTEE ON PUBLIC INFORMATION Chairperson - J. Magdangal M. De Leon Chairperson - J. Rebecca De Guia-Salvador Members: J. Portia Aliño-Hormachuelos Members: J. Antonio L. Villamor J. Josefina Guevara-Salonga J. Francisco P. Acosta J. Amelita G. Tolentino J. Edgardo T. Lloren J. Ramon R. Garcia 13. COMMITTEE ON FOREIGN TRAVELS J. Romeo F. Barza Chairperson - J. Rosmari D. Carandang J. Amy C. Lazaro-Javier Members: J. Japar B. Dimaampao 22. INVENTORY & AUDIT COMMITTEE J. Pampio A. Abarintos Chairperson - J. Hakim S. Abdulwahid J. Michael P. Elbinias Members: J. Rosalinda Asuncion-Vicente 14. COMMITTEE ON BAGUIO COTTAGES AND AD- J. Japar B. Dimaampao MINISTRATIVE BUILDING 23. GENDER AND DEVELOPMENT FOCAL POINT Chairperson - J. Josefina Guevara-Salonga Chairperson - J. Priscilla J. Baltazar-Padilla Members: J. Rebecca De Guia-Salvador Co-Chairperson: J. Marlene Gonzales-Sison J. Juan Q. Enriquez, Jr. Vice-Chairperson: J. Isaias Dicdican J. Fernanda Lampas-Peralta Co-Vice-Chairperson: J. Rodil Zalameda J. Celia C. Librea-Leagogo Members: Atty. Teresita Marigomen J. Mariflor P. Punzalan-Castillo Mrs. Juanita Tibayan-Castro J. Priscilla J. Baltazar-Padilla Ms.Virginia C. Velacruz J. Jane Aurora C. Lantion Mr. Amiel De Vera 15. COMMITTEE ON COMPUTERIZATION, 1LIBRARY Ms. Kereen R. Vasquez AND MODERNIZATION Ms. Liza R. Regala Chairperson - J. Apolinario D.Bruselas, Jr. Ms. Irene Mendoza-Binauhan Members: J. Edgardo A. Camello Ms. Alda A. Floria J. Florito S. Macalino Ms. Rhodora L. Bautista

38 Court of Appeals Journal

Philconsa Governors and officers led by the Chairman of powers and in fact reinforces, guarantees even, the maintenance the Board of Governors Conrado Estrella, President Manuel of political equilibrium among the three co-equal branches of Lazaro, distinguished guests, ladies and gentlemen, a pleasant government. good evening to you all. The power of judicial review is not an exercise of domi- I would like to thank the Philippine Constitution Associa- nance or interference in the exclusive affairs of another depart- tion (Philconsa) for the honor and privilege of celebrating our ment. It is in fact the means established by the constitution it- 49th Anniversary with you. The membership of Philconsa, as self to preserve the peace and stability of our political system so everybody in this hall will agree, is a different and elite kind of that the possibility of a constitutional crisis or a clash of powers crowd. Your guests of honor, for one, are limited only to those, may precisely be avoided. This is constitutionalism. This is the and I quote the Philconsa creed, who make “freedom and justice rule of law. prevail in our country forever.” I therefore consider it a distinct Which brings me to my next point. The rule of law is what recognition to have met your standards not just once but twice governs modern society. Our people allow the rule of law to this year ― first, on Independence Day which celebrates our dictate how they go about enforcing their rights and seeking freedom and second, today, on Philconsa’s 49th Anniversary redress for their grievances only because of the trust and confi- which marks almost half a century of unwavering commitment dence they have in the legal system. It is this trust and confi- to the rule of law. I am particularly elated by the fact that these dence in the rule of law that prevents anarchy and mob-rule two occasions underscore the twin values so powerfully ex- from holding sway. pressed in the Philconsa creed: freedom and justice. We in the judiciary are burdened with the heavy responsi- The Philconsa has been at the forefront of constitutional- bility to preserve and enhance the people’s trust and confidence ism and, for almost fifty years today, we have assumed the sa- in constitutionalism and the rule of law. It is thus of utmost cred duty of upholding and defending the Constitution. importance that our decisions be handed down with justice and The judiciary, meaning the Supreme Court and all inferior fairness, without fear or favor, and with no reward or expecta- courts, serves as the vanguard of constitutionalism and the rule tion other than the honest desire to preserve and strengthen our of law in our system of government. democratic way of life. The Constitution itself clearly identifies the agency which In this light, judicial independence serves as the heart and bears the primary responsibility for defending the Charter and soul of constitutionalism and the rule of law. Without it, the the rule of law and it is no other than the Supreme Court of the judiciary would be unable to impart fair and impartial justice to Philippines. those who seek it and those who yearn for a redress of their Of the three great co-equal branches of government, the grievances. judiciary is the most benign and the least powerful. Alexander Judicial independence has been tested and attacked over Hamilton in The Federalist No. 78, wrote that the judiciary has no and over again in many ways. Ever since I can remember, all access to either the sword (as wielded by the executive depart- sorts of accusations have at one time or another been heaped ment) or the purse (as controlled by the Congress.) However, on it, from the truth to the downright malicious. The judiciary is legal scholars are also one in saying that, while it is true that the easy to attack because it does not have the means to defend Supreme Court has no power of the sword nor of the purse, it itself. It has no sword. It has no purse. Other than the decisions wields the power of the pen or the authority to interpret the it writes and its limited power of contempt, there is really noth- Constitution and the laws. ing much it can do to fight a propaganda war. That is not its The 1987 Constitution expanded the powers of the Su- business anyway. But right is right and wrong is wrong. Let jus- preme Court so as to vest the Court with the power of judicial tice be done though the heavens fall. review whose one and only purpose is to check transgressions When everything is said and done, there is no better de- on the Constitution. fense than the balm of a good conscience. Beyond this, an up- When the Supreme Court invokes its power of judicial re- right and God-fearing magistrate can do no more. But attacks view, it does not assert its moral or Constitutional ascendency and criticisms in truth matter very little, if at all, because it is the over the other two co-equal branches of government. It only magistrate’s integrity that keeps the balance and equilibrium of reminds all and sundry of the non-negotiable supremacy of the the scales of justice on an even keel. And as long as that scale Constitution. Neither is it an encroachment on the powers of its tilts neither to one side nor the other, that is the assurance that co-equal branches but a mere reiteration of the sovereign will of our democracy is alive and our system of justice deserves the the people to have an effective system of checks and balances. people’s trust. Judicial review does not violate the principle of separation of Thank you and a pleasant evening to you all.

* Excerpts from the Speech delivered by CJ Renato C. Cororna during the 49th Anniversary of the PHILCONSA, Manila Hotel, 7:00 P.M., October 19, 2010. Court of Appeals Journal 39

Being married to a nutritionist can be stressful. Knowing Excessive caffeine interferes with sleep and we wake up what foods to eat, my wife Ophy always reminds me to avoid feeling tired. We are more likely to be irritable when we are fatty foods, soft drinks, rich desserts like cakes and ice-cream. tired. A lot of sugars, on the other hand, aggravate our My favorite foods are fried chicken, ice-cream, chocolates and moods and feeling of tiredness. However, eating a lot of chocolate cake. fiber and high-quality proteins can help maintain our blood But now that we are getting old and our urban lifestyles sugar levels. High-quality proteins include chicken, turkey are still stressful, it would be worthwhile to know how age, and fish. stress and the food we eat work together to make life better Take Chamomile in tablet or capsule form. It also or worse. According to the latest book she was browsing, makes a tasty hot tea, especially with the addition of a little there are different ways or steps we can take to manage stress: honey. It has a light apple smell and a grassy taste. It has 1. Recognize and change bad behaviors anxiety-reducing and mild sedative benefits. 2. Modify eating habits Other helpful supplements are vitamin B-complex, 3. Take nutritional supplements vitamin C and magnesium. 4. Improve other aspects of your lifestyle. A high-potency B-complex vitamin is the most Yes, I have recognized and tried to change my bad important supplement for reducing anxiety. Vitamin C, on behaviors like being moody. Mood swings do affect work the other hand, helps to prevent brain toxicity from productivity in the office. At least, I have taken steps to stimulants. Vitamin tablets should be taken with a meal or change. I found out from her that the food we eat affect our snack to increase absorption. Otherwise, it will be excreted moods and that nutritional supplements can be helpful in into the urine and wasted. The body needs also magnesium controlling them. In this article, let me share with you the for muscle relaxation. Muscle spasms likely indicate things we learned together about food and nutrition solutions inadequate magnesium levels. to overcoming stress. Other helpful tips are: Improving other aspects of my lifestyle is in progress. I • Use fresh and wholesome ingredients. Frozen used to not pay attention to her advice to do physical vegetables are better than canned. Whether eating at exercise. According to her, diet alone will not be enough to home or in restaurants, eat slowly and chew your food sustain our ideal body weight once we have achieved it. I am well. This practice will reinforce your other anxiety- so glad to be an obedient husband in this aspect. Every other reducing activities and you will enjoy the taste of your day, I visit the Court of Appeals exercise room. Under the food more. supervision of our physical therapist, Dux, I do treadmill and • Be sure to have healthy snacks handy, especially if you weights. It has been a relaxing routine that helped me lose have no time for nutritious meals. Healthy snacks weight while being able to still eat my favorite foods. include fruits in season, dried beans and nuts as well as But stress in the workplace will always be there. Through whole wheat breads. These foods contain a lot of fiber. proper eating, we can make ourselves healthy and able to beat • Drink plenty of water. It is the most important stress. macronutrient in the body. Together with fiber, water So what should we eat? There is no such thing as good cleanses our body of toxic substances. About 50-70% and bad food. But there is such a thing as a healthy and of body weight is water. It regulates body temperature, nutritious diet. In general, such a diet should be adequate in transports nutrients, hydrates the skin, lubricates joints amount, balanced in nutritive content and eaten in and facilitates digestion, absorption and excretion. The moderation. recommended daily intake of water for Filipinos is Specifically, a diet that will help relieve stress has the about 10-12 glasses. following characteristics: • Phytochemicals are compounds found in plant foods 1) no caffeine-containing beverages like coffee and soft that have strong antioxidant effect, which means they drinks help protect the body from cancer and heart disease. 2) minimal in sugars and refined carbohydrates Eat much of these foods: broccoli, cabbage, and 3) abundant in high fiber non-starchy vegetables (green cauliflower. Other food items are yellow and orange leafy ones) vegetables, citrus fruits, onions, green tea, soybeans, 4) high in good quality proteins (from fish and poultry) leeks and chives. 5) high in healthy oils (from avocado, olives, fish) HAPPY EATING TO ALL! August 28, 2010, Judiciary Golf Tournament, Club Intramuros, Manila. 74th Conference of the International Law Association (ILA), The Hague, Netherlands. Seated L to R: QC RTC Judge Vivencio Baclig, Mrs. Madrona, Makati RTC Judge Fortunito L to R: Atty. Ricardo C. Bernabe, (two other participants), SC Justices Jose C. Madrona, Atty. Zenaida Reyes, Justice Priscilla Baltazar-Padilla, Standing L to R: Mendoza, Presbitero J. Velasco, Jr., Atty. Nicanor Lazaro, Justice Estela M. Perlas- Parañaque RTC Judge Raoul de Leon (daughter and wife), and Justice Marlene Gonzales- Bernabe, Judge Manuel Ortiguerra, Justice Raoul Victorino (ret.), Commissioner Sison. Ralph Lantion (ret.), Justice Bienvenido L. Reyes, and Judge Renato Francisco. Not in the picture: Justice Elihu Ybañez, Justice Danton Bueser, and Justice Rodrigo Lim, Jr.

FUN TAKBO PARA SA KAARAWAN NG PUNONG MAHISTRADO “OKTOBRE 17, 2010”

1. SC Justice Mariano C. Del Castillo and staff; 2. Staff of Justice Noel G. Tijam; 1 2 3 3. Presiding Justice Andres B. Reyes, Jr. with the Fun Takbo participants doing the warm up; 4. Seated L to R: SC Justice Mariano C. Del Castillo, Presid- ing Justice Andres B. Reyes, Jr., CA Justices Normandie B. Pizarro, Ramon M. Bato, Mag- dangal M. De Leon, Sesinando E. Villon, Japar B. Dimaampao; Standing: Ganda CA Task Force; 5. Chief Justice Renato C. Corona, birthday celebrator; 4 5 6. CA Employees getting ready and excited for the Fun Takbo; 7.Chief Justice Renato C. Corona with the ACAE officers; 8.CA DCC’s Atty. Evangeline Llamas and Atty. Donna Oropesa (Center), with CA Personnel; 6 7 8 9 9.CA Guards bearing the birthday celebrator’s streamer; 10.CA Personnel; 11.Presiding Justice Andres B. Reyes, Jr. with Justice Ramon M. Bato, DCC’s and CA Per- sonnel; and 12.Ganda CA Task Force with the staff of Justice Noel G. 10 11 12 Tijam.