Friday, December 4, 2009

Is there legal basis for declaration of martial law in Maguindanao?

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Martial Law In Maguindanao

Early today, 05 December 2009, President Gloria Macapagal-Arroyo issued Proclamation No. 1959 placing the province of Maguindanao under martial law.

Article VII, Section 18 of the 1987 Constitution provides that the President as Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.

In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Obviously, there is no invasion in Maguindanao to warrant the declaration of martial law which leaves only rebellion as the basis for its declaration.

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968, states that rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

Prior to the declaration of martial law, a sizable arms cache was recovered near the residence of the Ampatuan clan enough to arm more than a thousand men. Yesterday, the Ampatuans were able to secure a favorable ruling from the Court of Appeals in Cagayan De Oro City granting their application for a writ of amparo. Government forces also took into custody the patriarch of the Ampatuan clan, Andal Sr., and the ARMM Governor Zaldy Ampatuan. Subsequently, the government received intelligence reports that allegedly armed men started to group in various part of Maguindanao.

The last alleged event of armed men grouping apparently ignited the declaration of martial. Whether that alleged event constitutes "rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government" is a question of fact that goes into the basis for the declaration of martial law. Simply put, was there a state of rebellion as defined under the law to justify martial rule?
The declaration of martial law appears to be, first and foremost, a clever political decision, even with very minimal legal basis. When the President visited General Santos City last Thursday to condole with the victims of the massacre, she was faced with grieving families who communicated to the President their sentiments and disappointments on how the government has treated the suspects with kid's gloves, considering the scale and barbarism of the incident.

By declaring martial law, the President, who is least concerned now with popularity, has deflected serious criticisms on her anemic responses to the massacre, as most critical of her handling of the incident are now focused on whether there is legal basis to her declaration or not. In effect, the declaration is a classic political maneuver to silence mounting criticisms of the massacre, and shift public attention to the legal basis of the declaration of martial law, as the latter appears to have profound impact on a national scale more than the massacre.

The shift in attention and media focus will be clearer in the coming days as the President will submit a report in Congress within forty-eight (48) hours from the declaration of martial law. The debates will be in Congress, voting jointly, by a vote of at least a majority of all its members, to revoke such declaration or even extend it for such period if the invasion or rebellion shall persist and public safety requires it.

We just hope that the declaration of martial law will not muffle the cries for justice of those massacred, or that justice be sidelined in the arena of political convenience.
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Thursday, November 26, 2009

The Maguindanao massacre and Philippine law on terror

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Maguindanao Massacre

With the unprecedented scale of barbaric violence in the recent Maguindanao massacre, the question arises if the situation calls for the applicability of Republic Act No. 9372 otherwise known as the Human Security Act of 2007 which imposes stiffer penalties than the common crime of murder.


Under Section 2 of the above-named law, it is declared a policy of the State to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.

Terrorism is defined under Section 3 thereof as any act of any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

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

or under

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

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

One of the elements of the crime of terrorism is the creation of condition of widespread and extraordinary fear and panic among the populace which clearly the Maguindanao massacre is squarely situated. Unfortunately, the qualifying clause thereof is "in order to coerce the government to give in to an unlawful demand" is not applicable, as there was no coercion at all on the government on the part of the perpetrators. In fact, the suspects appeared to be local government leaders, policemen and their armed civilian militias.

The latest moves from government prosecutors appear to be not to prosecute the perpetrators under the anti-terror law, as public pronouncements point to a 36-hour deadline in the filing of case in court in contrast to the 72-hour deadline under Section 18 of the anti-terror law.

Assuming that prosecutors will invoke the anti-terror law, the same will be a costly legal mistake as the move will only help the perpetrators resulting in the latter's possible, if not, inevitable acquittal.

In addition, with the clamor of speedy resolution of the dastardly crime, the invocation of the anti-terror law may be further delayed with the advent of the May 2010 elections as the accused may request for suspension of the proceedings or trial as the provisions of the said anti-terror law are deemed suspended one month before and two (2) month after the holding of any election.


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Monday, November 23, 2009

Anti-Torture Law Is Passed

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Philippine Anti-Torture Law

Unknown to many and caught in many political headlines was the passage into law two weeks ago of Republic Act 9745, or the Anti-Torture Act of 2009, which criminalizes all forms of torture and prohibiting state authorities from using secret detention center.

The Philippines, which has been fighting communist and Muslim insurgencies, has come under severe criticism from international rights groups, the U.S. State Department, and a U.N. investigator on extrajudicial killings in the deaths of hundreds of left-wing activists.

The announcement came as U.S. Secretary of State Hillary Rodham Clinton was visiting the country.
The law defines torture as acts consisting of systematic beating, food deprivation, electric shock, cigarette burning, rape, among others. Mental and psychological torture, meanwhile, refers to acts such as blindfolding, prolonged interrogation, maltreating a member or members of a person's family, and denial of sleep, among others.

It provides penalties of up to life imprisonment, depending on the gravity of the offense, and renders evidence obtained through torture as inadmissible in any proceeding.
The law also requires the military and police to submit a monthly report listing all detention centers to the independent Commission on Human Rights.

The new statute also put emphasis on the command responsibility of superiors over the acts committed by their subordinates.

Numerous cause-oriented groups and organizations have documented hundreds of cases where members of left-leaning political groups and the clergy as well as outspoken activists and journalists were either kidnapped or killed since 2001. A number of cases of extrajudicial killings, torture and harassment have been blamed on the police and the military, but families of victims have complained that no one has been prosecuted yet.
The bill had languished in the legislative mill although the Philippines was a signatory to the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The measure actually took 22 years in Congress before it was passed.

Under the law, the Commission on Human Rights will see through its implementation and, together with the Department of Justice and in consultation with human rights groups, it will draft the implementing rules and regulations.

Under the law, wars, political instability and other public emergencies could not be invoked as a justification for torture and other cruel, inhuman and degrading forms of treatment or punishment.
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Friday, November 20, 2009

Can Jingoy Substitute For Erap?

Case of Political Substitution
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With the start of filing of certificates of candidacies for the 2010 presidential elections, a question arises whether Senator Jingoy Estrada can substitute for his father, the former President Erap Estrada, in the event of the latter's disqualification, especially in the light of the Constitutional provision prohibiting elected Presidents from seeking reelection.

Stated in political terms, will it be wise to create an initial bandwagon for Erap by letting him file his certificate of candidacy so that Jingoy can ride eventually on the possible 'ground swell' of votes as a substitute candidate in the event of Erap's disqualification? This scenario is a possibility as the younger Estrada has declared his readiness to fill in the shoes of his father in the event that the COMELEC and the Supreme Court rule that latter is no longer eligible to seek the presidency.

The answer to the legal issue was settled by the Supreme Court ten (10) years ago, in G.R. No. 136351 promulgated in July 28, 1999, in the case of JOEL G. MIRANDA vs. ANTONIO M. ABAYA and the COMMISSION ON ELECTIONS.

In the above-named case, Jose “Pempe” Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of candidacy for the same mayoralty post for the synchronized May 11, 1998 elections. Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel Certificate of Candidacy of Miranda, which the COMELEC granted.

After the deadline for filing a certificate of candidacy, Joel G. Miranda filed his certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose “Pempe” Miranda.
During the May 11, 1998 elections, Joel Miranda won by only 1,666 votes against Antonio Abaya. Abaya filed a Petition to Declare Null and Void Substitution of Joel Miranda as he sought nullification of Miranda’s certificate of candidacy for being void ab initio because the certificate of candidacy of Jose “Pempe” Miranda, whom petitioner was supposed to substitute, had already been canceled and denied due course. The COMELEC thereafter nullified the substitution of Joel Miranda of his father as mayoralty candidate.
In the Supreme Court, Miranda insists that the substitution is allowed under Section 77 of the Omnibus Election Code which provides:
SEC. 77. Candidates in case of death, disqualification or withdrawal. — If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.

Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose “Pempe” Miranda in the May 5, 1998 resolution and he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been disqualified for any cause.

While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code.
More importantly, under the express provisions of Section 77 of the Code, not just any person, but only “an official candidate of a registered or accredited political party” may be substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that “a cancelled certificate does not give rise to a valid candidacy” (p.13).
A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.
The law clearly provides:
SEC. 73. Certificate of candidacy — No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.
By its express language, the foregoing provision of law is absolutely mandatory. It is but logical to say that any person who attempts to run for an elective office but does not file a certificate of candidacy, is not a candidate at all. No amount of votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No amount of votes should entitle him to the elective office aspired for.
The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Monsale vs. Nico, 83 Phil. 758 [1949])
It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for grounds for the cancellation and denial of due course to certificates of candidacy.
After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.
Also, under ejusdem generis rule, where a general word or phrase (such as “disqualification for any cause” in this case) follows an enumeration of particular and specific words of the same class (such as the words “dies” and “withdraws” in the instant case) or where the latter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly filed a valid certificate of candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section 77 of the Code. In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid certificate of candidacy in order to allow his political party to field a substitute candidate in his stead. Most reasonable it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the two previous instances.
Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et absurdum, meaning, where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted. To include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity where a substitute is allowed to take the place of somebody who had not been a candidate in the first place—a person who did not have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet. What right can a non-candidate pass on to his substitute? Clearly, there is none because no one can give what he does not have.
Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called “substitute” to file a “new” and “original” certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.
From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting. A candidate may not be qualified to run for election but may have filed a valid certificate of candidacy. Another candidate may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said certificate of candidacy is also canceled and/or denied due course. Or, a third candidate may be qualified but, his certificate of candidacy may be denied due course and/or canceled. This is possible because the grounds for disqualification (see: Omnibus Election Code, Section 68 — Disqualifications) are totally separate and distinct from the grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69— nuisance candidates; and Section 78 — material misrepresentation). Only the candidate who had a valid certificate of candidacy may be substituted.
The question to settle next is whether or not aside from Joel “Pempe” Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and canceled.
The Supreme Court ruled that it was.
Summary and Comments
In short, the rule on substitution under the Omnibus Election Code allows for replacement in case the official candidate “dies, withdraws or disqualified for any cause.” It does not allow substitution when the certificate of candidacy is void from the start, as what happened in the above-cited Miranda case, where the Supreme Court stressed that substitution does not apply in cases where the CoC of the candidate to be replaced has been denied due course and canceled under Section 78 of the Omnibus Election Code.
Section 78 states that, in case a person who has filed his certificate of candidacy has committed false misrepresentation, a petition to cancel the certificate of candidacy may be filed against the candidate. A disqualified candidate can only be substituted if he had a valid certificate of candidacy, and if he did not have a valid certificate of candidacy, he is and was not a candidate at all.
According to noted election lawyer Romulo Macalintal, a candidate whose CoC has been cancelled “due to material misrepresentation,” was not a candidate to begin with and therefore cannot be substituted. In Estrada’s case, the CoC can be the subject of a cancellation for misrepresentation since he is not eligible to run for president in the first place. Hence, if it was as if no CoC was filed, so there is nobody to be substituted. If Estrada files his CoC for president, the Comelec, as part of its ministerial duty, has to accept his application. However, a petition to deny due course to his CoC should be in order, considering the constitutional issues surrounding his case.
Unfortunately, it may take time before the Supreme Court may finally rule on the validity of the substitution of Jingoy, and in the meantime, the name of Erap may still appear in the list of candidates for President to be voted. It is also possible that the Supreme Court may have a change of heart on the issue, as the above-cited case of Miranda had four (4) dissenting Justices which included the incumbent Chief Justice Reynato Puno.
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Thursday, November 19, 2009

Philippine Anti-Child Pornography Law Is Passed

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Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009, was signed into law by President Gloria Macapagal-Arroyo last Tuesday.

The law seeks to make Filipino children less vulnerable to the illicit trade by imposing stiff penalties on anyone found guilty of any form of involvement in child pornography and enjoining private entities to help in the effort.

As the law defines it, child pornography is any representation, by whatever means, of a child engaged or involved in real or simulated sexual activities.

The law mandates that child pornography victims be given emergency shelter or appropriate housing, counseling, free legal services, medical or psychological services, livelihood and skills training, and educational assistance.

By signing the law, the President has demonstrated the government’s compliance with different international treaties such as the Rights of the Child; the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; the International Labor Organization (ILO) Convention No. 182 on the Elimination of the Worst Forms of Child Labor and the Convention Against Transnational Organized Crime.

The penalties for violating the child pornography law range from arresto mayor to reclusion perpetua and a fine of between P300,000 to P5 million, depending on the gravity of the offense.
It provides that a victim of child pornography shall be considered as a victim of a violent crime, and metes out penalties ranging from mayor to reclusion perpetual and a fine of 300,000 to 5 million pesos.

The new law criminalizes hiring, employing, using, persuading, inducing or coercing a child to participate in the production or any form of child pornography; and any form of involvement in creating any form of child pornography.

It also criminalizes publishing, offering, transmitting, selling, distributing, broadcasting, advertising, promoting, exporting or importing any form of child pornography; possessing any form of child pornography with the intent of selling, distributing, publishing or broadcasting them; and possessing and willfully accessing any form of child pornography.

Under the law, Internet service providers (ISP) must report to the Philippine National Police or the National Bureau of Investigation (NBI) within seven days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility.

To monitor compliance, the law creates an Inter-Agency Council against Child Pornography to be headed by the Department of Social Welfare and Development.
Members of the council are the heads of the Department of Justice, Department of Labor and Employment, Department of Science and Technology, Philippine National Police, Commission on Human Rights, Commission on Information and Communication Technology, National Telecommunications Commission, Council for the Welfare of Children, Philippine Center on Transnational Crime, Optical Media Board and NBI.
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Wednesday, November 18, 2009

Is leaking court decision ground for administrative sanction?

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Leaking Of Court Decisions

Is leaking court decision ground for administrative sanction? The answer to this query involves the fate of retired Supreme Court Justice Ruben Reyes.

In the case of Justice Reyes, the Supreme Court found him leaking an un-promulgated election decision on an election case involving the citizenship of Negros Oriental Rep. Jocelyn Limkaichong. As Justice Reyes already retired, he was suspended indefinitely from law practice.

Eight of the 15 justices voted to impose the penalty on Reyes after finding him guilty of gross misconduct for violating his oath as member of the Bar as well as the Code of Professional Responsibility. It was the first time the SC has penalized a retired justice with indefinite suspension, which is considered second only to disbarment in severity.

In addition to lifetime disqualification, the Supreme Court also impose a fine of P500,000.00 on Justice Reyes. The cash penalty was deducted from the retirement benefits to be received by Reyes, which reportedly amount to some P4.45 million.

The Supreme Court pointed out the “evident undue interest of Justice Reyes to circulate a draft ponencia (decision) of the case soonest even before the memoranda of all the parties fell due… It was Justice Reyes himself who leaked a photocopy (of the decision),” the decision stated.

The administrative sanction even on a Justice of the the Supreme Court is seen by members of the Philippine Bar as a very positive development in cleansing the judiciary of misfits and scalawags.
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Sunday, November 15, 2009

Is it required that an agreement be notarized involving real property in order that it can be enforced?

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Notarization of agreements involving real property

Is it required that an agreement be notarized involving real property in order that it can be enforced? Stated otherwise, can you enforced a private agreement involving a piece of land?

The above issues were settled by the Supreme Court in its latest Decision (as of this writing) in ESTATE OF PEDRO C. GONZALES and HEIRS OF PEDRO C. GONZALES vs. THE HEIRS OF MARCOS PEREZ, G.R. No. 169681 promulgated last November 5, 2009.

In the above-cited case, a deed of sale was executed covering a real property but the same was not notarized. When the parties to the said deed of sale both died, the heirs representing the vendee sought for the reconveyance of the sold property but the heirs representing the vendor refused.

The trial court ruled that since the deed of sale was not notarized, the same is considered void and of no effect. The said ruling was reversed by the Court of Appeals which ruled that a sale of real property, though not consigned in a public instrument, is nevertheless valid and binding among the parties and that the form required in Article 1358 of the Civil Code is not essential to the validity or enforceability of the transactions but only for convenience.

The issue of whether an agreement which is not notarized covering a real property is valid or not is a common talk especially among real estate practitioners who consider the transaction as null and void, as what the trial court did in this case.

In resolving the issue, the Supreme Court agreed with the Court of Appeals. The SC said that Article 1358 of the Civil Code enumerates the acts and contracts that should be embodied in a public document, to wit:
Art. 1358. The following must appear in a public document:
(1) Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein are governed by Articles 1403, No. 2 and 1405;
(2) The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains;
(3) The power to administer property, or any other power which has for its object an act appearing or which should appear in a public document, or should prejudice a third person; and
(4) The cession of actions or rights proceeding from an act appearing in a public document.
All other contracts where the amount involved exceeds five hundred pesos must appear in writing, even a private one. But sales of goods, chattels or things in action are governed by Articles 1403, No. 2 and 1405.

On the other hand, the SC said that pertinent portions of Article 1403 of the Civil Code provide as follows:
Art. 1403. The following contracts are unenforceable, unless they are ratified:
x x x x
(2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents:
(a) An agreement that by its terms is not to be performed within a year from the making thereof;
x x x x
(e) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; x x x[27]
Under Article 1403(2), the sale of real property should be in writing and subscribed by the party charged for it to be enforceable. In the present case, the deed of sale is in writing and subscribed by the vendor and his wife; hence, it is enforceable under the Statute of Frauds.

However, not having been subscribed and sworn to before a notary public, the deed of sale is not a public document and, therefore, does not comply with Article 1358 of the Civil Code.
Nonetheless, it is a settled rule that the failure to observe the proper form prescribed by Article 1358 does not render the acts or contracts enumerated therein invalid. It has been uniformly held that the form required under the said Article is not essential to the validity or enforceability of the transaction, but merely for convenience.

The SC said that a sale of real property, though not consigned in a public instrument or formal writing, is, nevertheless, valid and binding among the parties, for the time-honored rule is that even a verbal contract of sale of real estate produces legal effects between the parties. Stated differently, although a conveyance of land is not made in a public document, it does not affect the validity of such conveyance. Article 1358 does not require the accomplishment of the acts or contracts in a public instrument in order to validate the act or contract but only to insure its efficacy.
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Saturday, November 14, 2009

Pacquiao conquers Cotto!

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Pacquiao rules! as he captures seven world boxing titles

Pacquiao captured the welterweight crown held by Miguel Cotto after the referee stop the fight before the end of the 12th round. Pacquiao, a native of General Santos City, Philippines, became the first man in boxing history to capture seven world boxing titles in different divisions. The fight was controlled by Pacquiao from the start as he completely mastered the hapless Cotto.
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Friday, November 13, 2009

Crisis Averted On Whether to Include a Definition of Biopiracy

Definition of Biopiracy
8th ABS Working Group Meeting
Montreal, Canada
13 November 2009
Day 4 Update
Crisis Averted On Whether to Include a Definition of Biopiracy
By Elpidio Peria

MONTREAL, Canada – 12 November 2009 – Negotiations for the International Regime on ABS nearly got unraveled today, when the EU insisted that its proposed definitions on misappropriation/misuse be included in the negotiations on the text of compliance, but eventually a compromise was arrived at by inserting a footnote in the text that this can be done later after the Montreal meeting of the ABS Working Group.
It was difficult for the LMMC to agree to the compromise but the agreement had the effect of unblocking one of the impediments to the negotiations.

During the plenary this morning another key negotiation impediment clarified involved the so-called “parking lot” and subheadings in the text currently before the delegates.
This so-called “parking lot” was the term used by the various contact groups this week to refer to the destination of various texts on compliance, traditional knowledge, access and benefit-sharing which they cannot agree to place within the existing subheadings and components in the current text of the International Regime on ABS.

The Co-Chairs decided there are three categories of these “parking lots” at the moment, one category refers to operative text on a main component but should belong to another component.
An example of this is the the African Group proposal made on the component on traditional knowledge involving disclosure requirements in applications for intellectual property rights, product registration and plant variety registration but should properly belong to the component on compliance.
Another type of “parking lot” involved text that does not belong in the contact group which took it up, but does not also belong either to any other component but one Party wants it taken up and for this type of “parking lot”, a category was created called “implementing and other operative text for further discussions and negotiations”.

The Co-Chairs clarified that this category can be dealt with later in the subsequent negotiations of the International Regime, but the text in this category will not be negotiated at this stage.
The Mexican proposal made in the compliance contact group creating an international compliance mechanism patterned after a similar mechanism under the Cartagena Protocol is an example of text belonging to this “parking lot”.

Finally, the Co-Chairs referred to “bridging elements” containing cross-over issues, which require further thought but difficult to approach in a compartmentalized fashion.
The EU proposal made in the compliance contact group on the definition of misappropriation/misuse can belong to this category of “parking lot” but the EU is insisting that its proposal rightfully belongs in the compliance component of the International Regime.

The fluidity of the negotiations and the challenges of dealing with the various concepts and ideas on how to deal with the key issues of the International Regime is challenging negotiators here in Montreal, but these things will eventually sort itself out in the last day of this meeting.
This is true on the issue of subheadings, which has somehow become superfluous in the negotiations on the text on capacity-building, but is still useful for giving precision to the discussions on compliance and on access and benefit-sharing, while giving some headaches to the negotiations in the text on traditional knowledge for being repetitive.

This appears to be the reason for the EU to keep on insisting that it be retained, to prevent the emergence of a clear form and content of the International Regime.

These subheadings were the “bricks and bullets” previously arrived at during the 6th meeting of the ABS Working Group in Geneva in January 2008, which proved crucial in clarifying the consensus of the Parties then on what may constitute the various components of the International Regime.
In the 7th ABS Working Group meeting in Paris, France in April 2009, these “bricks and bullets” were deemed also to be an impediment to the negotiations as it gave unequal status to the proposed text to those that have consensus among the Parties and those which did not.

By the end of this negotiations, there could be a decision whether it is ripe to have another breakthrough on this issue of sub-headings.

In the contact group on capacity building, the Philippines was given a chance to re-insert its proposal for a capacity-building measure involving training in tracking the use of biological resources and genetic resources across sectors including understanding cases of biopiracy and the 'digitalization of biopiracy'.

These proposals came out from the conference organized recently by the ASEAN Center for Biodiversity in Singapore in September 2009.

There was a lot of consternation among delegates on what “digitalization” meant but this was understood by the proponent to refer to the burgeoning field of bioinformatics, where fragments of genes and compounds are being placed in various databases that are used and exchanged among research centers worldwide and developed into something more useful, like diagnostic kits for certain diseases or a new medicine to deal with emerging diseases, or simply to advance the frontiers of biological/genetics research which have evolved into the various “omics” field- genomics, proteomics, metagenomics, etc.

Another proposal raised by Philippines for capacity-building involved the use by academia and research institutions of alternatives to intellectual property rights systems such as open-source licenses and a study of their impacts on realizing benefit-sharing.

As is usual in these meetings, these new concepts are bracketed by other delegates which gives it time to be further reflected and studied upon until the next meeting of the ABS Working Group.
In the contact group on traditional knowledge, the Philippines tried to push the concept of 'traditional knowledge associated with genetic resources' as one of the concepts that will be taken up when definitions are dealt with, but this caused a lot of dismay among developed country delegates that it was eventually withdrawn.

The delimitation of the concept of traditional knowledge to this category, that it is only “associated with traditional knowledge' is seen as an attempt to chop the concept of traditional knowledge and genetic resources into several pieces when it is an accepted notion in bioprospecting, that where plants and other biological material are explored for their medicinal and other industrial uses, they cannot be identified unless the traditional knowledge of indigenous peoples have been tapped to determine where they may be located.
It is also a fact that there are also chemical compounds, like the ones taken from marine species, that are identified without the use of traditional knowledge.

This is also important to clarify the eventual scope of the International Regime, considering that the General Assembly of the World Intellectual Property Organization or WIPO, has given a renewed mandate to the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore or IGC, to negotiate a legal instrument to deal with the misappropriation and misuse of traditional knowledge.

These and other matters will get sorted out in the subsequent meetings of the ABS Working Group which is now said to have been transferred to Rome, Italy, and not anymore in Colombia.
oOo
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Thursday, November 12, 2009

Countries Start Working on Rules Against Biopiracy

Ville de MontréalImage via Wikipedia
Rules Against Biopiracy
8th ABS Working Group Meeting
Montreal, Canada
12 November 2009
Day 3 Update

Countries Start Working on Rules Against Biopiracy
By Atty. Elpidio Peria

MONTREAL, Canada – 11 November 2009 – Parties to the Convention on Biological Diversity (CBD) took almost two hours agreeing on a procedure on how they will proceed in their negotiations on the various elements of the International Regime on Access and Benefit-Sharing, an international instrument that will stop biopiracy and ensure that countries and indigenous peoples get a share from the use of their biological resources and traditional knowledge.

“This is the longest five minutes in the history of the CBD,” said Tim Hodges of Canada, one of the Co-Chairpersons of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing (ABS), the subsidiary body of the CBD charged with negotiating an instrument which may either become a Protocol to the CBD, or a set of voluntary guidelines.

There was disagreement between the LMMC and the EU on how they will carry the new submissions made in this meeting on compliance into the so-called Paris text, a document developed from submissions made during the 7th Meeting of the ABS Working Group in Paris last April 2009.

Tension was palpable in the room as Brazil and the EU was called by the Co-Chairs to agree on how work shall proceed on the text on compliance.

Later, Brazil called on Malaysia and delegates in the room asked the representative of the African Group from Namibia and a few minutes, several Parties belonging to the protagonists, Canada, Malawi, Ethiopia, Colombia, Canada and Philippines joined the huddle.
Eventually, it was agreed that all new proposals made during this meeting will be integrated into the Paris text, attempting to preserve its structure and headings, but streamlining the document that will be transmitted to the final and last meeting of the ABS Working Group next year in March 2009.

After the plenary adjourned, the contact group on capacity-building met briefly right until over lunch time where the text was assessed on whether all interventions made by the Parties during the meeting of the contact group were already in the text.

The contact group on capacity-building considered a separate reworking of the African Group submission outlining the capacity requirements for governments, academia and research institutions and the private sector.
The delegate from Philippines also asked to be allowed to re-insert the submission it made in plenary and initially he was ignored, but later he was told to do it when the contact group reconvenes later in the week.
The Philippines submission was taken from the Singapore Conference on Biodiversity last September organized by the ASEAN Center for Biodiversity which proposed suggestions on what kinds of capacity-building may be undertaken, ranging from ICT to deal with biopiracy and the digitalization of biodiversity, among others.

In the afternoon, the contact groups on traditional knowledge and compliance met.  The contact group on traditional knowledge proceeded by classifying the collected submissions into whether they are of preambular nature or a statement of general principle, or whether they can be considered operational, which may constitute specific obligations for Parties.

A lengthy discussion happened on the matter of protection of traditional knowledge which will have to be subjected to the customary laws of indigenous and local communities at all times, and that this protection of traditional knowledge shall ensure that the traditional knowledge protected will remain to be vital and useful in the day-to-day lives and cultural context of the indigenous and local communities.

This proposal was objected to by the EU who said they did not understand what it meant thus it proposed it be sent to the section on community-level procedures or in other parts of the International Regime but not on the section on traditional knowledge.

The Philippines explained that its proposal is one means of ensuring there is fair and equitable benefit-sharing, especially when the subject matter of the ABS agreement, be it biological resources or traditional knowledge, is protected by way of intellectual property rights, such as patents or trademarks.

The Co-Chairs agreed it was an operational provision and moved on to consider other sections on traditional knowledge, such as the measures to address the use of traditional knowledge in the context of benefit-sharing arrangements, among others.

The contact group on compliance had a tougher discussion determining what to do with the new proposals tabled for this meeting.

After lengthy back and forth between delegates and the Co-Chairs, it was agreed that delegations who wanted to include their proposals in the Paris text had to explain what are the new elements in their intervention that added value on the existing text.

It was also necessary that Parties in the contact group would have to agree that it be included in the text, otherwise, it may either be deleted or ignored, but not yet subjected to rewording or bracketing, as that will happen in the subsequent stages of the negotiations.

Once these submissions are compiled, then they will be subjected to further negotiations in subsequent meetings of the contact group.

There was resistance from the developed countries such as Japan and the EU on the insertion of new text from the LMMC on the measure to ensure access to justice aimed at enforcing ABS agreements, but eventually it was accepted after a commitment from the LMMC that it will be reworded later.

The EU text on the international understanding of misappropriation and misuse was also extensively discussed as it was scattered throughout the text on compliance, but EU explained the rationale for it and it was also eventually accepted.

There were also various proposals from observers, such as the ESRC Centre for Economic and Social Aspects of Genomics, relating to open-source licenses on ABS, which was supported by Africa.
The rule in the CBD is that any proposal from any observer will be taken on-board once it is supported by a Contracting Party to the CBD.

The proposals from the International Indigenous Forum on Biodiversity (IIFB) were alternatively supported by countries or regional groups.

The IIFB proposals on the insertion of new items of information on the internationally recognized certificate and the duty of states to respect customary laws were accepted after it was initially resisted by the Co-Chairs and Canada.

A lengthy discussion ensued on the Mexican proposal on an international compliance mechanism, which is of a voluntary nature but gives incentives for users of genetic resources and traditional knowledge by way of giving them simplified procedures to collect material from a country providing such genetic resources.
The Mexican proposal, lifted from the Cartagena Protocol on Biosafety, does not belong to any established categories in the text on compliance, so it was sent to the Plenary for further deliberations.

The last proposal taken up, from the African Group, on the setting up disclosure requirements in applications relating to intellectual property rights, product registration and plant variety protection, was also transmitted to the Plenary for further discussion.
oOo
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Wednesday, November 11, 2009

Asia-Pacific Countries Regroup on Biological Diversity Convention

Megadiverse countriesImage via Wikipedia
Biological Diversity Convention
8th ABS Working Group Meeting
Montreal, Canada
11 November 2009

Day 2 Update
Asia-Pacific Countries Regroup on Biological Diversity Convention
By Atty. Elpidio Peria

MONTREAL, Canada – 10 November 2009 – Asia-Pacific countries who are also Contracting Parties to the Convention on Biological Diversity (CBD) re-grouped today in order to effectively fight for their rights in the on-going negotiations for the International Regime on Access and Benefit-Sharing here in Montreal, Canada.

“...We are now entering into a crucial stage of the negotiations. Developing countries from the Asia-Pacific region wish to play an active role in these negotiations. Hence they have felt the imperative need to discuss and address their commonality of interests through this newly created Like Minded Asia Pacific Group (LMAPG),” said Gurdial Singh Nijar of Malaysia, who was designated as spokesperson for the new group.
The move of these developing countries in effect left out Japan, Korea, Singapore and Thailand to fend off for themselves in the negotiations for a treaty that will stop biopiracy.

They however committed to work closely with other developing countries organized as the Like-Minded Megadiverse Countries (LMMC), GRULAC and the African Group.

This is the first time that this re-grouping of regional groups of countries has happened in the Convention on Biological Diversity.

Usually, countries attending meetings in the United Nations system are divided into key regional groups – the African Group for the countries in the continent of Africa, the EU, for the 27 countries in the European Union, the Eastern and Central European countries for countries which were formerly part of European Countries behind the Iron Curtain, the GRULAC for Latin American and Carribean group of countries, and the Asia-Pacific.

Developing countries from the Asia-Pacific group in the CBD pushing for a more active stance in the negotiations on access and benefit-sharing have labored for years under the influence of Japan, which is the number one trading partner and donor of most of the countries in the world, including the Asia-Pacific region.
The delegate from Malaysia clarified that this move of the Asia-Pacific group of countries is to have a common stand on the issues before the ABS Working Group, especially now that the negotiations for the instrument to ensure benefit-sharing from the use of genetic resources has reached a critical stage.
Malaysia also emphasized that this does not mean that the Like-Minded Megadiverse Group has split up, but rather, these developing countries in the Asia-Pacific region, number ing over forty countries , are now moving in one direction and are in a position to support the stand of the Like-Minded Megadiverse Countries or LMMC.

The LMMC is a grouping of around 17 countries which hosts 70% of the world's known biological diversity and includes Asia-Pacific countries China, India, Indonesia, Malaysia and the Philippines as its members.
This group, currently led by Brazil, has consistently called for a legally-binding treaty that will ensure the flow of benefits to the countries of origin of these genetic resources.
Brazil expressed satisfaction in the formation of the new regional group and is grateful for their support.

The discussions for the day delved on allowing countries and various observers to give new text on the various elements of the International Regime on ABS, particularly on fair and equitable sharing of benefits, access to genetic resources and compliance.

Right after adjournment of the plenary, two contact groups were formed to negotiate a document that will eventually contain provisions that will deal with traditional knowledge and capacity-building.

A contact group is a smaller grouping of countries that will meet from time-to-time to exchange views and negotiate on the outcome of a document, which will then be adopted by all countries attending the meeting on its last day.

Only the Contracting Parties to the Convention can make interventions that will matter in the outcome of the document.

The discussions proceeded within the day, but all were preliminary discussions as what had happened was that countries and observers mainly merged or cleaned up the text that is already on the table, including statements of position that were made on the floor on the first day of this session of the ABS Working Group.
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Tuesday, November 10, 2009

Negotiations for a Treaty Dealing with Biopiracy Resumes in Canada

The UN headquarters in New YorkImage via Wikipedia
Treaty On Biopiracy in Canada
8th ABS Working Group Meeting
Montreal, Canada
10 November 2009

Day 1 Update
Negotiations for a Treaty Dealing with Biopiracy Resumes in Canada
By Atty. Elpidio Peria

MONTREAL, Canada – 9 October 2009 – Member-countries of the United Nations Convention on Biological Diversity (CBD) gathered again in Montreal, Canada today to resume its negotiations on the International Regime on Access and Benefit-Sharing, an instrument that will stop biopiracy, in a meeting that its officials say is the most important in its history.

“This is an extraordinary meeting; it is not just a meeting, it is the meeting where postponing action is not an option,” said Jochen Flasbarth of Germany, the President of the Conference of the Parties.
Germany is the current President of the Conference of the Parties, the highest decision-making body of the UN treaty, by virtue of its hosting of the Conference in Germany in May 2008.
Countries attending the meeting did not waste time in the morning putting forward new texts that will be subjected to negotiations later in the week, on topics ranging from the nature of the instrument that will stop biopiracy, traditional knowledge of indigenous and local communities and capacity-building.

There was even time left in the afternoon to further consider texts on compliance, or the rules on how to make countries follow or implement their obligations under the instrument.

Later in the interventions made by countries, the African Group stated its unhappiness as one African country, Zambia, has been denied a visa to Canada to attend the meeting of the CBD body.
Canadian officials said however, informally, that they have nothing to do with the changes in the visa processing procedures in developing countries.

The African Group sentiment was supported by GRULAC, Argentina and Mexico.

The Philippines also expressed the same experience, saying it has been “victimized” by the change in procedures in the Canadian Embassy though it hoped it will not ever happen again in succeeding meetings of the CBD.

In this first day of the meeting, countries who have signed on to the CBD merely reiterated old positions, though taking into account of some recent developments.

The positions on what kind of instrument will be approved mainly delved on whether the instrument should become a legally binding instrument or will just be a set of voluntary guidelines.

This issue on the nature of the legal instrument is important as this will determine if it can stop biopiracy from happening at the national and international level.

Namibia speaking for the African Group said that the International Regime should be a comprehensive legally binding instrument, containing a set of principles, norms and rules and compliance and enforcement measures.
Mexico, speaking for the GRULAC, the regional grouping of Latin American countries, stated their consensus position that it wants a binding instrument.

Norway's position is that the International Regime is not limited to a single, legally binding instrument,and it should be a Protocol to the Convention on Biological Diversity developed from the Bonn Guidelines, with binding and non-legally binding provisions and compliance being the core legally binding provision and some institutional provisions.

Japan said that it is not in a position to accept a legally binding position unconditionally though it is open to have some binding provisions on awareness-raising, and it is their view that the nature of the instrument can be determined after discussing the various elements of the International Regime.

Thailand supports the development of the International Regime, especially consisting of one or more legally binding and non-legally binding instruments.

New Zealand said that any legally binding element of the International Regime should make legal sense and is workable, which means it is able to be implemented. Its view is that if the instrument will have to be legally binding, what would that legally binding provision be in New Zealand and how shall it be implemented. A legally binding instrument should be implementable nationally and internationally.

Switzerland is for a legally binding instrument, but said that this instrument should be flexible so as to contain norms, rules and procedures that are legally and non-legally binding. It is also important that this instrument should be implemented with other ABS agreements and be flexible with other specialized instruments that are in harmony with the CBD.

Brazil, for the Like-Minded Megadiverse Group of Countries, or LMMC, wants the instrument to be a single legally binding instrument, a Protocol to the CBD.

The EC said it follows the form follows function principle in the negotiations, and that for its part, the International Regime should include international access standards that could constitute a mix of legally and non-legally binding measures or a mix of the two.

Cuba, Indonesia, Bangladesh and Argentina spoke, in favor of a single, legally binding instrument.
Canada said that the nature of the instrument should not be considered in a vacuum and mindful of the over-arching instruction of the Conference of the Parties to the CBD, the International Regime can either have (a) binding, (b) non-legally binding, © or a mix of binding and non-legally binding outcomes.
Costa Rica spoke about its experience in applying ABS measures and said that the International Regime should be a legally-binding instrument.

Serbia said that the International Regime could either be a legally binding instrument or a combination of legally and non-legally instrument.

Jordan is for a binding instrument that has a number of measures with it, particularly compliance and implementation.

Tunisia, Liberia and Namibia supported Namibia for a binding one single instrument.

The International Indigenous Forum on Biodiversity said that the International Regime must have legally binding elements protecting the traditional knowledge and genetic resources of indigenous peoples in accordance with relevant international instruments.

Francois Meienberg, speaking for the civil society groups in the CBD said that the Bonn Guidelines have failed to protect the rights of countries and thus the instrument needs to be a protocol to the CBD and that this protocol should recognize the rights of indigenous peoples.

In the afternoon, the interventions on traditional knowledge and capacity-building were made in general, upon the instructions of the two Co-Chairs, Tim Hodges of Canada and Fernando Casas of Colombia, as the full outline of these proposals were submitted directly to the Secretariat, to be consolidated in one text to be considered the following day.

There is a three-step process agreed upon in these negotiations. The first step involves the presentation or reading of regional and country positions. The second step involves the actual negotiation where these texts are compressed, merged, deleted or bracketed taking into account other similar elements in the emerging text.
The third step involves a further negotiation of what should come out as a semi-final text that will be consolidated in the next meeting of the ABS Working Group.

The next meeting of this Working Group will be in Colombia in March 2009 but there are ideas being floated on what may be post-ABS 8 activities or meetings, mainly to firm up the text that will be finally considered in that third and final meeting.

This international instrument to control biopiracy is expected to be adopted in the 10th meeting of the Conference of the Parties to the CBD in Nagoya, Japan in October 2010.

There are however discussions in the sidelines among developing countries in Asia-Pacific that they might come up with a like-minded group of countries that will join other countries, especially the LMMC, in demanding a legally-binding instrument.

How that will turn out eventually will be determined in the coming days, and it is too early to say what will happen, as this is just the first day of a seven-day negotiating session.
oOo
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Sunday, November 8, 2009

Finally, Justice Villarama got it!

Supreme Court Chief Justice Reynato Puno speak...Image via Wikipedia
Villarama is new Supreme Court justice
By Atty. Rey Cartojano
Nominated nine times by the Judicial and Bar Council (JBC) as Justice of the Supreme Court, Court of Appeals Justice Martin Villarama finally made it and took his oath as the 166th justice of the Supreme Court before Chief Justice Reynato Puno last 07 November 2009, replacing Justice Consuelo Ynares-Santiago who retired last month.
The 63-year-old Villarama is the husband of SC En Banc Clerk of Court Ma. Luisa Dizon-Villarama.
Villarama obtained his Bachelor of Laws degree from Manuel L. Quezon University (MLQU) after graduating from De la Salle University with a degree on business administration.
Born on April 14, 1946, Villarama and Ma. Luisa Dizon have two children - Dr. Clarissa D. Villarama-Cellona, a dermatologist, and Carlo Villarama, who recently took the Bar exams.
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Saturday, November 7, 2009

Warrantless arrest under Philippine law

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Warrantless Arrests
TO BE OR NOT TO BE...
To be or not to be arrested, that is the question.
By Beverly Caboteja

It is but usual that you see in movies peace officers capturing criminals without any warrant of arrest. Others might also have heard of the Miranda rights which arresting officers usually recite every time a person is seized.

It has been known that, at all stages of the criminal process, including arrest, police officers must protect citizens' constitutional rights, such as the right to remain silent and the right to be free from unreasonable searches. If these rights are violated, a court may deem the arrest unlawful and order the case against the arrestee dismissed, or certain evidence may be thrown out of the case and declare it inadmissible.

A criminal suspect may even question the lawfulness of an arrest when it is happening, including basis for the arrest and the actions of the police officers. Thus, as a general rule, an arrest is deemed illegal without the issuance of a warrant of arrest. However, as we note, there is always an exception to the general rule.

The most important section in Rule 113 of the Revised Criminal Procedures is Sec. 5.-Warrantless arrest. It is noted that the criminal justice process typically begins when a police officer places a person under arrest. Normally, an arrest happens after preliminary investigation-the case is filed in court, then there would be issuance of a warrant of arrest. The issuance of warrant of arrest renders an arrest valid and legal.

When does arrest occur? An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. Upon seizure of the person, the use of physical restraint or handcuffs is not necessary. The key here is the exercise of police authority over a person, and that person’s voluntary or involuntary submission.

Generally, for an arrest to be legal or lawful, such should be done by virtue of a warrant of arrest, issued by the competent court and established from a well grounded belief that such offense has been committed. As an exception, the law allows warrantless arrest provided that certain conditions prescribed by law concur. A person authorized to make a warrantless arrest is only a peace officer but it could also be a private person which is more closely known as citizen’s arrest.

There are three instances mentioned in Section 5 for a valid warrantless arrest: the in flagrante delicto arrest, hot pursuit arrest, and in the case of an escapee from prison. The most famous are the first two enumerated. The third one is really not complicated. When a prisoner escapes from prison, a warrant of arrest is no longer necessary.

The second question here is, why does the law authorize an arrest without warrant? As explained in the case of Umil vs. Ramos 187 SCRA 311, “To hold that no criminal can, in any case be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert and the most depraved of criminals, facilitating their escape in many instances.”

Let me discuss further the three instances where a warrantless arrest is deemed valid. Sec 5 (a) states that “when in his presence the person to be arrested has committed, is actually committing or is attempting to commit an offense,” then any person may arrest the accused without any warrant of arrest. For instance, while on street patrol, a police officer sees a man snatching a purse. The officer can apprehend and arrest the purse-snatcher, based on the officer's personal observation of the said offense. On the event the peace officer sees the commission of the offense he may immediately arrest the erring man.

Another question posed here is when you say “in his presence” does it literally mean the commission of the offense must be right in front of the peace officer? The answer is in negative. What the law contemplates is not limited in this characterization. Even if the said officer does not see it but hears the disturbance, this is still covered under this provision.

Further, the second type of arrest is the most controversial. Under section 5 paragraph (b), it is also known as the hot pursuit arrest. It says here that a warrantless arrest is considered valid when an offense has just been committed and the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. Others might see these two paragraphs similar. The slight distinction, however, may be seen. What makes this paragraph different from that of the prior paragraph is that in paragraph (a) the crime is committed in the presence of the arresting officer and the person to be arrested has committed, or is actually committing an offense. Meaning, it is based on the personal knowledge of the arresting officer. Whereas in paragraph (b), it is personal knowledge not on what crime was committed, but of facts indicating that the person to be arrested has committed it. Again, it has been held in the case of Umil vs. Ramos that “personal knowledge of facts in arrests without warrant must be based upon probable cause which means an actual belief or reasonable grounds of suspicion. A reasonable suspicion must be founded upon probable cause coupled with good faith on the part of the peace officers making the arrest.”

Simply, when a police officer has a reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime, the officer may arrest that person. For instance, a police officer receives a report of an armed robbery that has just occurred at a liquor store, then sees a man who matches the suspect's exact description running down the street near the store. The officer detains and searches the man, finding a gun and a large amount of cash in his pockets. The officer can arrest the man, based on a probable cause belief that he committed robbery.

There are still other instances where a warrantless arrest is considered legal in addition to Section 5 of Rule 113. These include: first, if the accused is put on bail and the bondsman wants to give up the responsibility of watching over the former. The latter can arrest without a warrant and surrender the accused to the court. In this instance, the bondsman is discharged from responsibility.

Lastly, if an accused released on bail attempts to leave the country without the permission of the court where the case is pending, he may be arrested without the necessity of a warrant. Hence, no accused can freely leave the country, even on bail, unless the requisite of the court is satisfied.

With all these enumerations provided by law, we can say that the issuance of warrant of arrest is not always practicable especially if the situation does not necessarily call for it. On a personal note, the law simply safeguards the interest of the public and protects the same from the probable menace brought about by erring individuals.

Nonetheless, it is but right and proper to determine first, based on the facts stipulated by the law, whether a person is to be or not to be arrested. With such act, justice and equity shall prevail.
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