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.

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.

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.

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.

SC takes a hard stance on premature campaigning

Premature election campaigning in the Philippines

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Warning to all candidates: SC takes a hard stance on premature campaigning
By Atty. Rey D. Cartojano

The widespread perception is that our election laws are not enforced but ineffective as well. Take for instance the issue of premature campaigning where politicians have long taken for granted. The issue is further exacerbated by the fact that most Filipinos think the COMELEC. although many will also disagree, as a lame duck body which cannot implement our election laws.

Last 11 September 2009, the Supreme Court caught many by surprise with its majority ruling in ROSALINDA A. PENERA vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, G. R. No. 181613,penned by Associate Justice Chico-Nazario, disqualifying an elected local mayor for premature campaigning. Yes, believe you, of all election violations and offenses, premature campaigning! The decision came at a time when politicians of all colors wantonly desecrate mainstream media of all exposures that even a toddler will easily qualify them as political campaigns.
Circa, 2007 Synchronized National and Local Elections. Place, Town of Sta. Monica, Surigao Del Norte. Protagonists. Mayoralty candidates Rosalinda Penera and Edgar Andanar.

As found by COMELEC, on the afternoon of 29 March 2007, the 1st day to file the certificates of candidacy for local elective positions and a day before the start of the campaign period for the May 14, 2007 elections, mayoralty candidate “Datty” Penera and her local line-up, accompanied by their supporters, filed their respective Certificates of Candidacy before the Municipal Election Officer of Sta. Monica, Surigao del Norte
Penera and company came to the municipal COMELEC office on board a convoy of two (2) trucks and an undetermined number of motorcycles, laden with balloons and posters/banners containing names and pictures and the municipal positions for which they were seeking election. Installed in one of the trucks was a public speaker sound subsystem which broadcast their intent to run in the coming elections. The truck had the posters of Penera attached to it proclaiming her candidacy for mayor. The streamer of Mar Longos, a candidate for the position of Board Member, was proudly seen at the vehicle’s side. The group proceeded to motorcade until the barangays of Bailan, Libertad and as far as Mabini almost nine (9) kilometers from Sta. Monica. Penera and her partymates were seen aboard the vehicles and throwing candies to the residents and onlookers.

The above-named acts, admitted by Penera, were put in issue by our protagonists, whether they constituted premature campaigning. The COMELEC found premature campaigning and disqualified Penera.

When the case reached the Supreme Court, the issue among others polarized the High Tribunal but by a slim 8-7 majority, the COMELEC ruling was upheld.
The following are pertinent excerpts of the majority ruling:
"The prohibited act of premature campaigning is defined under Section 80 of the Omnibus Election Code, to wit:
"SECTION 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election. (Emphasis ours.)
"If the commission of the prohibited act of premature campaigning is duly proven, the consequence of the violation is clearly spelled out in Section 68 of the said Code, which reads:
"SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having xxx (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.
"In the case at bar, it had been sufficiently established, not just by Andanar’s evidence, but also those of Penera herself, that Penera and her partymates, after filing their COCs on 29 March 2007, participated in a motorcade which passed through the different barangays of Sta. Monica, waived their hands to the public, and threw candies to the onlookers.

"For violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera must be disqualified from holding the office of Mayor of Sta. Monica.

"The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides a new definition of the term “candidate,” as a result of which, premature campaigning may no longer be committed.

"Under Section 79(a) of the Omnibus Election Code, a candidate is “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.”

"Republic Act No. 8436, enacted on 22 December 1997, authorized the COMELEC to use an automated election system for the process of voting, counting of votes, and canvassing/consolidating the results of the national and local elections. The statute also mandated the COMELEC to acquire automated counting machines, computer equipment, devices and materials; and to adopt new electoral forms and printing materials. In particular, Section 11 of Republic Act No. 8436 provided for the specifications of the official ballots to be used in the automated election system and the guidelines for the printing thereof, the relevant portions of which state:
"SECTION 11. Official ballot. - The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.
"Both sides of the ballots may be used when necessary.

"For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. (Emphases ours.)
"On 10 February 2007, Republic Act No. 9369 took effect. Section 13 of Republic Act No. 9369 amended Section 11 of Republic Act No. 8436 and renumbered the same as the new Section 15 of Republic Act No. 8436. The pertinent portions of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, now read:
"SECTION.15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.
"A fixed space where the chairman of the board of election inspector shall affix her/her signature to authenticate the official ballot shall be provided.
"For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (Emphases ours.)

"In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended, the Dissenting Opinion argues that Section 80 of the Omnibus Election Code can not be applied to the present case since, as the Court held in Lanot v. Commission on Elections, the election campaign or partisan activity, which constitute the prohibited premature campaigning, should be designed to promote the election or defeat of a particular candidate or candidates. Under present election laws, while a person may have filed his/her COC within the prescribed period for doing so, said person shall not be considered a candidate until the start of the campaign period. Thus, prior to the start of the campaign period, there can be no election campaign or partisan political activity designed to promote the election or defeat of a particular candidate to public office because there is no candidate to speak of.

"According to the Dissenting Opinion, even if Penera’s acts before the start of the campaign period constitute election campaigning or partisan political activities, these are not punishable under Section 80 of the Omnibus Election Code given that she was not yet a candidate at that time. On the other hand, Penera’s acts, if committed within the campaign period, when she was already a candidate, are likewise not covered by Section 80 as this provision punishes only acts outside the campaign period.

"The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act No. 8436, as amended, the prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is practically impossible to commit at any time.

"We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of Republic Act No. 8436, as amended.
"A close reading of the entire Republic Act No. 9369, which amended Republic Act No. 8436, would readily reveal that that it did not contain an express repeal of Section 80 of the Omnibus Election Code. An express repeal is one wherein a statute declares, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed. Absent this specific requirement, an express repeal may not be presumed.

"Although the title of Republic Act No. 9369 particularly mentioned the amendment of Batas Pambansa Blg. 881, or the Omnibus Election Code, to wit:
"An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to Use an Automated Election System x x x, Amending for the Purpose Batas Pambansa Blg. 881, As Amended x x x. (Emphasis ours.),
said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa Blg. 881. Such fact is indeed very material. Repeal of a law means its complete abrogation by the enactment of a subsequent statute, whereas the amendment of a statute means an alteration in the law already existing, leaving some part of the original still standing. Section 80 of the Omnibus Election Code is not even one of the specific provisions of the said code that were expressly amended by Republic Act No. 9369.
"Additionally, Section 46, the repealing clause of Republic Act No. 9369, states that:
"Sec. 46. Repealing Clause. – All laws, presidential decrees, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.
"Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which predicates the intended repeal under the condition that a substantial conflict must be found in existing and prior acts. The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws. This latter situation falls under the category of an implied repeal.
"Well-settled is the rule in statutory construction that implied repeals are disfavored. In order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal may be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear and convincing in character. The language used in the later statute must be such as to render it irreconcilable with what had been formerly enacted. An inconsistency that falls short of that standard does not suffice.
"Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile the same instead of declaring outright the invalidity of one as against the other. Such alacrity should be avoided. The wise policy is for the judge to harmonize them if this is possible, bearing in mind that they are equally the handiwork of the same legislature, and so give effect to both while at the same time also according due respect to a coordinate department of the government.

"To our mind, there is no absolute and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning. It is possible to harmonize and reconcile these two provisions and, thus, give effect to both.

"First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides that “[i]t shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity, except during the campaign period.” Very simply, premature campaigning may be committed even by a person who is not a candidate.

"For this reason, the plain declaration in Lanot that “[w]hat Section 80 of the Omnibus Election Code prohibits is ‘an election campaign or partisan political activity’ by a ‘candidate’ ‘outside’ of the campaign period,” is clearly erroneous.
"Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan political activity in the following manner:
"SECTION 79. Definitions. - As used in this Code:
x x x x
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
"True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but before the start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the coming elections. The commission by such a person of any of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of promoting his/her intended candidacy.
"When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. Also, conversely, if said person, for any reason, withdraws his/her COC before the campaign period, then there is no point to view his/her acts prior to said period as acts for the promotion of his/her election as a candidate. In the latter case, there can be no premature campaigning as there is no candidate, whose disqualification may be sought, to begin with.
"Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No. 8436, as amended, which provides that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period,” does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in the said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.
"As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.
"As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80 and 79 of the Omnibus Election Code, as well as Section 15 of Republic Act No. 8436, as amended, is not only very possible, but in fact desirable, necessary and consistent with the legislative intent and policy of the law.
"The laudable and exemplary intention behind the prohibition against premature campaigning, as declared in Chavez v. Commission on Elections, is to level the playing field for candidates of public office, to equalize the situation between the popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The intention for prohibiting premature campaigning, as explained in Chavez, could not have been significantly altered or affected by Republic Act No. 8436, as amended by Republic Act No. 9369, the avowed purpose of which is to carry-on the automation of the election system. Whether the election would be held under the manual or the automated system, the need for prohibiting premature campaigning – to level the playing field between the popular or rich candidates, on one hand, and the lesser-known or poorer candidates, on the other, by allowing them to campaign only within the same limited period – remains.
"We cannot stress strongly enough that premature campaigning is a pernicious act that is continuously threatening to undermine the conduct of fair and credible elections in our country, no matter how great or small the acts constituting the same are. The choice as to who among the candidates will the voting public bestow the privilege of holding public office should not be swayed by the shrewd conduct, verging on bad faith, of some individuals who are able to spend resources to promote their candidacies in advance of the period slated for campaign activities.
"Verily, the consequences provided for in Section 68 of the Omnibus Election Code for the commission of the prohibited act of premature campaigning are severe: the candidate who is declared guilty of committing the offense shall be disqualified from continuing as a candidate, or, if he/she has been elected, from holding office. Not to mention that said candidate also faces criminal prosecution for an election offense under Section 262 of the same Code.
"The Dissenting Opinion, therefore, should not be too quick to pronounce the ineffectiveness or repeal of Section 80 of the Omnibus Election Code just because of a change in the meaning of candidate by Section 15 of Republic Act No. 8436, as amended, primarily, for administrative purposes. An interpretation should be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory. Indeed, not only will the prohibited act of premature campaigning be officially decriminalized, the value and significance of having a campaign period before the conduct of elections would also be utterly negated. Any unscrupulous individual with the deepest of campaign war chests could then afford to spend his/her resources to promote his/her candidacy well ahead of everyone else. Such is the very evil that the law seeks to prevent. Our lawmakers could not have intended to cause such an absurd situation.
"The Dissenting Opinion attempts to brush aside our preceding arguments by contending that there is no room for statutory construction in the present case since Section 15 of Republic Act No. 8436, as amended by Section 13 of Republic Act No. 9369, is crystal clear in its meaning. We disagree. There would only be no need for statutory construction if there is a provision in Republic Act No. 8436 or Republic Act No. 9369 that explicitly states that there shall be no more premature campaigning. But absent the same, our position herein, as well as that of the Dissenting Opinion, necessarily rest on our respective construction of the legal provisions involved in this case.
"Notably, while faulting us for resorting to statutory construction to resolve the instant case, the Dissenting Opinion itself cites a rule of statutory construction, particularly, that penal laws should be liberally construed in favor of the offender. The Dissenting Opinion asserts that because of the third paragraph in Section 15 of Republic Act No. 8436, as amended, the election offense described in Section 80 of the Omnibus Election Code is practically impossible to commit at any time and that this flaw in the law, which defines a criminal act, must be construed in favor of Penera, the offender in the instant case.
"The application of the above rule is uncalled for. It was acknowledged in Lanot that a disqualification case has two aspects: one, electoral; the other, criminal. The instant case concerns only the electoral aspect of the disqualification case. Any discussion herein on the matter of Penera’s criminal liability for premature campaigning would be nothing more than obiter dictum. More importantly, as heretofore already elaborated upon, Section 15 of Republic Act No. 8436, as amended, did not expressly or even impliedly repeal Section 80 of the Omnibus Election Code, and these two provisions, based on legislative intent and policy, can be harmoniously interpreted and given effect. Thus, there is no flaw created in the law, arising from Section 15 of Republic Act No. 8436, as amended, which needed to be construed in Penera’s favor.
"The Dissenting Opinion further expresses the fear that pursuant to our “theory,” all the politicians with “infomercials” prior to the filing of their COCs would be subject to disqualification, and this would involve practically all the prospective presidential candidates who are now leading in the surveys.
"This fear is utterly unfounded. It is the filing by the person of his/her COC through which he/she explicitly declares his/her intention to run as a candidate in the coming elections. It is such declaration which would color the subsequent acts of said person to be election campaigning or partisan political activities as described under Section 79(b) of the Omnibus Election Code. It bears to point out that, at this point, no politician has yet submitted his/her COC. Also, the plain solution to this rather misplaced apprehension is for the politicians themselves to adhere to the letter and intent of the law and keep within the bounds of fair play in the pursuit of their candidacies. This would mean that after filing their COCs, the prudent and proper course for them to take is to wait for the designated start of the campaign period before they commence their election campaign or partisan political activities. Indeed, such is the only way for them to avoid disqualification on the ground of premature campaigning. It is not for us to carve out exceptions to the law, much more to decree away the repeal thereof, in order to accommodate any class of individuals, where no such exception or repeal is warranted.
"Nonetheless, the questions of fact raised by Penera and questions of law raised by the Dissenting Opinion must all be resolved against Penera. Penera should be disqualified from holding office as Mayor of Sta. Monica for having committed premature campaigning when, right after she filed her COC, but still a day before the start of the campaign period, she took part in a motorcade, which consisted of two jeepneys and ten motorcycles laden with multi-colored balloons that went around several barangays of Sta. Monica, and gave away candies to the crowd.
"Despite the disqualification of Penera, we cannot grant Andanar’s prayer to be allowed to assume the position of Mayor of Sta. Monica. The well-established principle is that the ineligibility of a candidate receiving majority votes does not entitle the candidate receiving the next highest number of votes to be declared elected.
The above ruling is very significant in our current state of poor enforcement of election laws as it suggests that candidates who are currently guilty of premature campaigns will face the prospect of disqualification once they finally decide to file their candidacies, especially with the categorical statement that premature campaigning may be committed even by a person who is not a candidate even if its done outside of the campaign period.
This pronouncement is interesting at it will eventually disqualify almost all Presidential and Vice Presidential candidates who are leading in the current major surveys. Unless, the dissenting opinion becomes the new majority once an actual case will be filed in the future, or the next Congress will expressly repeal current election laws.

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.

The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs

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“In this corner, Round 1:
The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs”
By Atty. Ping Peria

The recent Supreme Court (SC) decision in G.R. 149907, in Roma Drug and Romeo Rodriguez v. The Regional Trial Court of Guagua, Pampanga, the Provincial Prosecutor of Pampanga, Bureau of Food and Drugs and Glaxo Smith Kline has shown the possibilities of the almost a year old Cheap Medicines Act (Republic Act 9502) in legitimating actions that will effectively bring down the prices of medicines in the country, this on the eve of the one-year anniversary of the said law signed by President GMA last 6 June 2008.

The SC decision has not yet been appealed by the losing sides and Marvin A. Tort of Business Mirror (May 15-16, 2009) opined this may result in unscupulous retailers directly importing near-expiry drugs or medicines that are cheap and pass this on to the public for profit. While the concern is valid though completely unsupported by proof that such had actually happened, there are broad implications of the Supreme Court decision that indicates the case may just be an opening round of what may eventually become a highly-contentious area of litigation between the general public and the pharmaceutical industry. Where are the government agencies in this dispute? They will be forced to choose between taking the side of the public and uphold the Cheap Medicines Act or side with the multinational corporations who will also fight hard to maintain their prerogatives promoted by the Special Law on Counterfeit Drugs, the law which was effectively sidelined but not nullified by the SC decision..

Justice Tinga, the ponente or the writer of the decision, was a gifted law student and a bar topnotcher and he was previously a Congressman before he was appointed to the bench in 2003. He was presented, at first glance, a most momentous of cases in a magistrate's life, on whether to invalidate a law on the ground that it violates the Constitution. Being more of a politician than a jurist, he was trying to be friendly to all sides while attempting to do his duty to do justice.

Had he been concerned with fostering clear guidelines to aid future litigation on these types of cases and cement his legacy as a remarkable Justice in the highest Court of the land, he could have ruled on the constitutional law issues raised by the drugstore owner, such as the following :
1) whether the Special Law on Counterfeit Drugs violates the equal protection clause of the Constitution, the legal principle which states that every one is equal before the law and there shall be no special treatment of subject matter which is not properly classified;
2) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 11, Article XIII which calls on the State to make essential goods, health and other social services available to all people at affordable cost;
3) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 15, Article II which states that it is the policy of the State to protect and promote the right to health of the people and instill health consciousness among them.

Too bad, there is case law which says that if a court can decide a case avoiding the constitutional issues raised, the court will take the path of least resistance and go for the easier route. This is because courts are reluctant to overrule the will of the legislator, in this case, those who passed the law, as they are deemed to be full of wisdom, they being the representatives of the people and the laws they have passed are presumed valid and in accord with the Constitution.

In a legal sleight-of-hand, the SC here waved aside those weighty constitutional law issues and declared them moot as there is another law which must be taken into account, the Cheap Medicines Act, passed in 2008. Remember that this case got started in the year 2000, when the government agencies raided the store of Petitioner Roma Drug in Pampanga.

So, does this mean that being a social legislation at the same time, the Cheap Medicines Act can just look at certain acts, even if it had happened in the past, and declare such acts invalid ?The SC did not give such explicit guidance, but illustrated how a law protecting the rights of a broader set of people might be applied, by quoting the provisions of the law in the decision and saying all these provisions apply.

Thus, the Supreme Court avoided a messier result in constitutional litigation, that of nullifying the Special Law on Counterfeit Drugs, a law which was passed through the aggressive lobbying efforts of the pharmaceutical industry in the Philippines. Perhaps Justice Tinga was concerned about the howl that may result had he penned his valedictory ponencia differently, but he said quite a mouthful about the said law being a “heartless, soulless legislative piece”. Lawyers will not take this to heart even if it may please most public health advocates, as such statement is devoid of legal meaning, it is what is called in law school, obiter, or an aside. It sounded more like playing to the audience or the gallery, this populist piece of rhetoric in the SC decision.

What happens now with this result? This establishes a precedent which, if it does not get modified and further qualified after the motion for reconsideration which in all likelihood may be filed by the losing side in this case, will most likely affect the following :
1) the prosecution and trial of similar cases under the same provisions of the Special Law on Counterfeit Drugs which face possible dismissal based on this decision, if their counsels would find it fit to identify and use the precedent of this case;
2) the 2001 case filed by the grouping of multinational drug companies in the Philippines, the Pharmaceutical and Healthcare Association of the Philippines (PHAP), against the Department of Health on parallel importation, still currently undergoing litigation in a Makati trial court, should now be dismissed with the legal principle enunciated in this case though it is up to the Office of the Solicitor-General to make such assertion in such a way that may not contradict its position in cases involving the Special Law on Counterfeit Drugs which it may have also sought to uphold;
3) The current debates in Congress on the pending BFAD Charter amendments, where the concept of “misbranding” is undergoing deliberation - there are those who argue that “misbranding” should also refer to intellectual property rights (IPR)-related cases which will bring back the problem of linkage where the BFAD will resolve IPR-related cases which is outside its competence; advocates for the Special Law on Counterfeit Drugs might just explicitly state in this BFAD Charter amendment that the law on parallel importation which has been liberalized by the Cheap Medicines Act, might just have to take into account what are “counterfeit” drugs, which in effect will limit the reach of the Cheap Medicines Act, using the procedural justification used by Justice Tinga in this case, which is the what happens when a law on a similar topic is passed affecting a previous law also dealing with the same topic.

Just the same, this emerging area of litigation for public health advocates bears close watching in the years to come and the key question is : on whose side will our government agencies be in the future ? The answer to this will be revealed in the next set of cases around these issues.
oOo

Marriage without love is like running engine without oil

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Marriage Without Love
By Beverly Caboteja

I am all here all alone in my room looking at my family picture, feeling nostalgic. I can not help but miss my family.  As I continued gazing upon it, I started to ask, why some parents can’t get married and stay get married? Why do some relationships fail? Why do families break up?

Maybe some of you have also asked the same question. Even I myself wondered why did I ask such question when in fact, I had not experienced such scenario myself.

Probably, nobody who has ever lived wished that they grow in a broken family. Nobody does. Too often we dream to be in a family where love and care always reside- a family where each member brings out the best in us. But there are always exceptions to everything. What if your family is missing a mom or dad because of separation? What might have gone wrong in the course of their marriage?

According to Justice Pineda, marriage without love is like running engine without oil. Sooner or later the engine will burn down. He added, that living together under one roof without love is to live in turmoil soaked in mental torture and suffering. So, why are these given emphasis?

Many might be caught unaware, but the law obliges the spouses now to love each other, that is to have devoted affection for one another. This calls for a relationship which is more emotional than legal, But where there is the fortune of devotion, whether spontaneous or induced, the resulting harmony and openness to sacrifice pleasantly enhance the aims of matrimonial life.

Art 149 of the Family Code of the Philippines regards the family as a basic social institution and as the foundation of the nation. This Article is in line with the policy of the State as expressed in the 1987 Constitution, to protect and strengthen the family. Hence, as mandated, “no custom, practice or agreement destructive of the family shall be recognized or given effect. “  I just remembered then one of the cases we discussed in our Family Relations class and the same was published in one of the articles of Jose V. Sison in “A law each day” of the Philippine Star.

I got amazed that studying cases in law school is also like reading short stories. But, I may say, they are not only ordinary stories. Such stories depict true pictures of life- realities at that- where any person, boy or girl, rich or poor alike can experience. Just like the story of a woman who endured almost 20 years of torture and suffering for the sake of preserving the sanctity of marriage as an inviolable social institution and the foundation of the family. The irony of her case is that when she could no longer endure the tempestuous and cruel relationship she’s even blamed for the break-up. This is the story of Thelma.

Thelma got married to Randy and they were blessed with three healthy boys. But their burning love story only lasted for three years. This resulted to their almost everyday fights. Their frequent quarrels and misunderstanding made both of their lives miserable and hellish. Everyday seemed to be a battle ground for them.

Randy blamed Thelma for being negligent of her wifely duties and for not reporting to him the wrongdoings of their children. And these quarrels were always punctuated by violence, threats and intimidation by Randy against Thelma and their children. In the process, insulting words and language were heaped upon Thelma. As an aftermath of these quarrels, Thelma would sustain bruises and scars all over her body. Thelma suffered and endured the mental and physical anguish arising from these marital fights.

But Thelma reached to a point that she could no longer succumb to such agony. It was Christmas season in 1995, when Thelma protested Randy’s decision to allow their eldest son to travel to a far away place in another city down south. As a result of the heated argument, Thelma sustained bruises all over her body and face, blood clots, and bumps on her head. When she was down on the floor because of a blow in the stomach, Randy hit her head and pointed a gun at her and asked her to leave the house.

Without second thoughts, she left the house. She went to her sister and was accompanied by her other siblings to their parents where her injuries were treated by a doctor. After how many months, Thelma filed a complaint for legal separation invoking article 55 (1) of the Family Code, because of Randy’s physical violence, threats, intimidation and grossly abusive conduct.  This article provides for the grounds where legal separation may be filed. Under this provision, the act must be directed against the (a) spouse, or (b) a common child, or (c) child of the other spouse in a previous relationship, or (d) an adopted child. The violence must be physical, and the gross abuse can be abusive words or language.

The facts of the case would show that indeed there was physical violence and gross abuse inflicted to the aggrieved party Thelma.

On Randy’s part, alibi and denial could only be his lamest defenses. While he admitted that that they had really quarrelled on December 9, 1995, he said he was the one who left their house and stayed in their Greenhills Condominium until five days later when he returned on December 14, 1995 and learned that Thelma had already left the house. He then averred that Thelma’s petition for legal separation should be denied since she is guilty of abandonment.

He raised the defense, that under Article 56 (4) of the FC, the petition for legal separation shall be denied when both parties have given ground for it. Clearly, Randy would not want a legal separation as their conjugal properties would be liquidated and Thelma would get her share.

This case then raises an issue whether or not Randy is correct on his defense?

The Supreme Court answers in negative. The abandonment referred to by the Family Code is abandonment without justifiable cause for more than one year. In this case, Thelma has left Randy due to the latter’s gross abusive conduct. Such abandonment is not the abandonment contemplated by the said provision (Art 56 (4) FC).

The concept of abandonment, as predicated by law, is the “desertion of the conjugal dwelling without intention of returning. There must be an absolute cessation of marital relations, duties and rights with intention of perpetual separation.” This must not only be physical estrangement but also amounts to financial and moral desertion. As to the presumption of abandonment, the same must be rebutted by the presentation of clear, strong and convincing evidence that the absent spouse did not intend to leave the present spouse and the family.  Furthermore, the law requires, for purposes of legal separation, an abandonment of the other spouse for more than one year which must be unjustified.

In the given case, Thelma has adequately proven the presence of a ground for legal separation. The repeated physical violence and grossly abusive conduct directed against the petitioner are lucid and sufficient grounds for the prayed relief. The everyday bruises, scars, black eye and blows bore by Thelma are ample evidences of repeated physical violence. Hence, she is entitled to the relief as provided by law.

It is further noted in this case that, “our Constitution is indeed committed to the policy of strengthening the family as a basic social institution. But it does not establish the parameters of State protection to marriage and the family as that remains within the province of the legislature which shall define all legal aspects of marriage and prescribe the strategy and the modalities to protect it and put into operation the constitutional provision that protect the same.”

With the enactment of the Family Code, Randy’s undeserved acts could not be tolerated by law especially if they demean the rights of Thelma who all the while has tried to salvage the entire household. This would also defeat the purpose of meeting the ends of justice. (Ong vs. Ong, G.R. 153206, October 23, 2006)

So just like any short story, the story of Thelma, imposes a dispassionate reflection. The choice of a lifetime marriage partner is certainly one of the most important decisions a person can make. And that every family is unique, with each marriage partner bringing experiences and values from his or her own family. Unfortunately, there is no such thing as a perfect marriage, “a marriage made in heaven”.

No. Not at all.