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.

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.

Finally, Justice Villarama got it!

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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.

2009 Presidential Lingkod Bayan Awardee is Justice Nimfa Cuesta-Vilches

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2009 Presidential Lingkod Bayan Awardee
By Zaldy Vilches

Deputy Court Administrator Justice NIMFA CUESTA-VILCHES of the Office of the Court Administrator, Supreme Court of the Philippines is the 2009 Presidential LINGKOD BAYAN Awardee. This is the highest category in the annual search by the Civil Service Commission (CSC) for outstanding government officials and workers in the country.

The Presidential Lingkod Bayan Award is conferred on to Justice NIMFA C. VILCHES for her outstanding contributions in making justice available for all and her advocacies on women and children’s rights. She carried on with the Supreme Court’s Justice on Wheels program, giving free legal aid and assistance to the poor and needy, which expedited the hearing of minor cases and led to the release of more than a thousand detained prisoners. She spearheaded information and education campaign for farmers, fisherfolks and indigenous people of their rights under the law. In her 26 years of public service in the Supreme Court, she has displayed professionalism and efficiency in the execution of her responsibilities.

The entitlement of a Presidential Lingkod Bayan Awardee to an automatic promotion to the next higher position or salary increase equivalent to the salary of the next higher position is provided for in Section 5 of Executive Order No. 508.

E.O. No. 508 http://www.chanrobles.com/executiveorders/1992/executiveorderno508-1992.html

A lawyer as an employee

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EMPLOYER-EMPLOYEE RELATIONSHIP
By Beverly Caboteja

A basic notion and well-discussed concept in labor law is that of “employer-employee relationship”. Numerous labor cases have been decided as to the determination of the existence of employment relationship which depends on whether the four-fold test (as explained later) is present or not. The determination of the existence of employer-employee relationship is important because the conditions of employment in Labor Standards apply only if employer-employee relationship exists.

We pose then the question, when is an employer-employee relationship deemed to exist? The Supreme Court had once again occasion to answer this question in the case of Air Material Wing Services and Loan (AMWSLAI vs. NLRC, G.R. No. 111870, June 30, 1994). This case is an illustrative situation where employer-employee is found to exist. The case involves a complaint for illegal dismissal and non-payment of benefits filed by Atty. Salas against AMWSLAI.

The facts of the case show that private respondent Salas was appointed notarial and legal counsel for petitioner. The said appointment was renewed for three (3) years. The petitioner issued an order reminding Salas of the approaching termination of his legal services under their contract. This prompted Salas to lodge a compliant against petitioner for separation pay, vacation and sick leave benefits and others. Petitioner moved to dismiss for lack of jurisdiction alleging that there was no employer-employee relationship between the two parties.

Most of Salas’ claims were dismissed by the labor arbiter. It held that Salas was not illegally dismissed and so not entitled to collect separation benefits. His claims for vacation leave, sick leave, medical and dental allowances and refund of SSS premiums were further denied on the ground that he was a managerial employee. He was also denied moral and exemplary damages for lack of evidence of bad faith on the part of AMWSLAI. Neither was he allowed to collect his notarial fees from 1980 up to 1986 because the claim therefore had already prescribed.

On appeal, the decision was affirmed by the respondent Commission, prompting the petitioner to seek relief in this Court.

This now leads us to the threshold issue whether or not Salas can be considered an employee of the petitioner company.

Well-settled is the doctrine that the existence of an employer-employee relationship is ultimately a question of fact and that the findings by the labor arbiter and the National Labor Relations Commission shall be accorded not only respect but even finality when supported by substantial evidence.

In the case at bar, the terms and conditions in the contract show that respondent was an employee of petitioner. The Supreme Court also made use of the four-fold test to resolve the issue of employer-employee relationship: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee with respect to the means and method by which the work is to be accomplished.

The Court observed that these factors were present in the case.

First, as to the selection and engagement of the employee:
“Clearly, his selection as the company counsel was done by the board directors in one of its regular meetings.

Second, as to the payment of wages:
“The petitioner paid him a monthly compensation/retainer’s fee for his services.”

Thirdly, as to the power of dismissal:
“Although his appointment was fixed for three years, the petitioner reserves its power of dismissal as may be deemed necessary for its interest and protection.”
And finally, as to the power of control, which is the most important test:
AMWSLAI also exercised its power of control over Salas by defining his duties and functions as its legal counsel such as acting on all legal matters and seeking remedies to effect collection of overdue accounts.

Further, it was also raised, as cited in the case of Hydro resources vs. Pangilinan, that “a lawyer like any other professional (doctors, nurses, dentists, public relations practitioners), may very well be an employee of a private corporation or even the government. It is not unusual for a big corporation to hire a staff of lawyers as its in-house counsel, pay them regular salaries, rank them and treat them like its other officers and employees.”

Considering that these four factors in determining the existence of an employer-employee relationship are present, the conclusion is well-nigh inevitable that an employer-employee relationship exists in the present case.

With regard to Salas’ claims of notarial fees, it is based on his employment as a notarial officer of the petitioner and thus labor arbiters have the original and exclusive jurisdiction. As provided under paragraph 3 of Article 217 of the Labor Code, claims which have reasonable connection with employer-employee relationship are under the jurisdiction of the labor arbiter.

In respect to the separate payment of notarial fees to Salas, the contract does not contain any stipulation about such. Hence, absence of such stipulation does not entitle the respondent to collect separate payment of notarial fees.

What happens to PNRC after Liban v. Gordon

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Liban v. Gordon
By Atty. Rey Cartojano

The recent ruling of the Supreme Court in Liban vs. Gordon raises many problematic issues concerning the fate of the Red Cross movement in the Philippines.

The Supreme Court in a 7-5 ruling justified the holding by Senator Richard Gordon of the Chairmanship of the Board of Governors of the Philippine National Red Cross (PNRC) by nullifying almost all provisions of Republic Act No. 95, as amended, otherwise known as the PNRC Charter.

Reversing its earlier position in earlier cases that PNRC is a government- owned or controlled corporation, the Supreme Court through Associate Justice Antonio Carpio found that PNRC is a “privately owned, privately funded, and privately run charitable organization”, and as such, the PNRC Charter passed by Congress suffers constitutional infirmity in the light of Article XII, Section 16 prohibiting Congress from passing a special law creating private corporations.

Had the Supreme Court found that PNRC is a public corporation, or a government-owned or controlled corporation as enunciated its earlier decisions, Senator Gordon could have forfeited his Senate seat in the light of Artice VI, Section 13 of the Constitution prohibiting members of Congress from holding office in government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during their term without forfeiting their seats.

But the majority ruling raises more questions than answers.

In a strong dissenting opinion, Associate Justice Antonio Eduardo Nachura, concurred in by four (4) other Justices, maintained that Senator Gordon violates the Constitution by holding the chairmanship of the Board of Governors of the Philippine National Red Cross (PNRC) as the latter is a government-owned or controlled corporation, if not a government instrumentality.

The dissenting opinion faulted the majority in its sole reliance of categorizing a corporation as government-owned or controlled through the literal control test, especially in the 51% control of capital stock in case of stock corporations, as defined in Section 2(13) of Executive Order No. 292, otherwise known as the Administrative Code of 1987, as the said provision provides further a qualification that a GOCC may be categorized “for purposes of the exercise and discharge of their respective powers, functions and responsibilities”.

In fine, the dissenting opinion said that “a GOCC may either be a stock or non-stock corporation, or that it ‘may be further categorized’, suggesting that the definition provided in the Administrative Code is broad enough to admit of other distinctions as to the kinds of GOCCs”.

The dissenting opinion said that PNRC is at the very least a government instrumentality, citing Section 2(10) of Executive Order No. 292, to wit:

Instrumentality refers to any agency of the National Government not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.
There is information that a motion for reconsideration is being considered to be filed with the Supreme Court. A change of heart of one Justice will reverse the tide against Senator Gordon, as there will be a deadlock in the High Court, thus paving for the possibility that the PNRC Charter will be upheld as constitutional, as there is always the presumption of the constitutionality of congressional enactments in cases of deadlocks in Supreme Court rulings.

Not only that, the appointment of two (2) additional Justices in the High Tribunal will change the voting alignments, as there is that possibility of another deadlock even assuming that the present majority of seven (7) Justices will stick to their positions.

Assuming that the present Supreme Court ruling will be sustained, we have problematic scenarios for the Philippine Red Cross movement.

First, the PNRC organization as defined in Republic Act No. 95 will be dissolved, as a necessary consequence of the ruling that its Charter is null and void.

Second, the Board of Governors as constituted under the PNRC Charter will also be dissolved, putting in a possible state of hiatus and confusion the management and operations of the PNRC.

An interesting question is whether or not the existing Board of Governors, as constituted, can continue governing the operations of the ‘un-chartered or unincorporated’ PNRC, especially in the light of the fact that some of its members are appointees of the President. Can the Chapters call an organizational meeting to reconstitute a new Board of Governors?

A new and recent twist is the pending Senate Bill No. 3285 and House Bill No. 6509 which both propose to amend Republic Act No. 95, or the PNRC Charter.

At the outset, the passage of the new Red Cross bill will suffer the same fate as Republic Act No. 95 if we assume the reasoning of the majority in the Liban v. Gordon case, as many will consider the new Red Cross bill as an exercise in futility. But on second thought, is it really an exercise in futility? There is the view that even with the affirmation of the majority ruling by the Supreme Court, it will take possibly years for the Supreme Court to declare again this new Red Cross law as unconstitutional, and there is always that possibility that the High Court may again change its position depending on the changes in the composition of the Justices.

Another complication in all these legal discussions is the effect of the scenarios on the fate of Senator Gordon as Chairman of the Board of Governors of the PNRC. Senator Gordon, a declared candidate for President in the 2010 elections, appears to be consolidating his hold on the PNRC through his open support of the proposed new Red Cross bill, but this has serious back lash on many Red Cross stakeholders who are not in conformity with how Senator Gordon has politicized an organization that is supposed to be independent, neutral and apolitical.

The final resolution of Liban vs. Gordon may still provide the chance to put an end to the perceived growing politicization of Red Cross if and when the Supreme Court will have a change of heart and consider PNRC as a government-owned or controlled corporation, or a government instrumentality.

Blog on Philippine laws and jurisprudence

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