Basic Principles on the Role of Lawyers

In light of the recent news that there are lawyers who are calling on the United Nations to investigate the attacks on the Philippine Judiciary, the bastion of democracy, I deemed it appropriate to post here a copy of the Basic Principles on the Roles of Lawyers, which, (gasp!) I have only heard about today.

Basic Principles on the Role of Lawyers

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba
27 August to 7 September 1990

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion,

Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence, the right to a fair and public hearing by an independent and impartial tribunal, and all the guarantees necessary for the defence of everyone charged with a penal offence,

Whereas the International Covenant on Civil and Political Rights proclaims, in addition, the right to be tried without undue delay and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,

Whereas the International Covenant on Economic, Social and Cultural Rights recalls the obligation of States under the Charter to promote universal respect for, and observance of, human rights and freedoms,

Whereas the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that a detained person shall be entitled to have the assistance of, and to communicate and consult with, legal counsel,

Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in particular, that legal assistance and confidential communication with counsel should be ensured to untried prisoners,

Whereas the Safeguards guaranteeing protection of those facing the death penalty reaffirm the right of everyone suspected or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, in accordance with article 14 of the International Covenant on Civil and Political Rights,

Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power recommends measures to be taken at the international and national levels to improve access to justice and fair treatment, restitution, compensation and assistance for victims of crime,

Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession,

Whereas professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper restrictions and infringements, providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest,

The Basic Principles on the Role of Lawyers, set forth below, which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general. These principles shall also apply, as appropriate, to persons who exercise the functions of lawyers without having the formal status of lawyers.

Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status.

3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources.

4. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.

Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.

6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services.

7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.

8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.

Qualifications and training

9. Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.

10. Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory.

11. In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups.

Duties and responsibilities

12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.

13. The duties of lawyers towards their clients shall include:

(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;

(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;

(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.

14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.

15. Lawyers shall always loyally respect the interests of their clients.

Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

18. Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

19. No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.

20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.

21. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.

22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

Freedom of expression and association

23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.

25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.

Disciplinary proceedings

26. Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.

27. Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.

29. All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.

The source can be downloaded here

sMiLe!!

Torni

What's in a name?

About twelve years ago, I was one of those hopefuls to have that coveted "Atty." attached to my name. Take note of the "period" (".")! My law professors told us students that when somebody completes law school, he or she has earned an ATTY to his or her name. Passing the bar gives that person the "." to attach to the name. And it is only when he or she has passed the bar exams that such right to use "ATTY."

Every waking day, during law school, I asked myself this question, "Why? Why am I doing this? Instead of enjoying life, here I am, being tortured."

Then God decided I deserved to have that title, and granted me my wish after taking the exams.

Eleven or so years later, I have come to realize what the title "Atty." entails.

1. It is definitely a privilege. People with legal issues look up to lawyers as their solutions to their their legal problems. Lawyers have the capacity to bring significant changes to the lives of people with legal issues.

Saan Aabot ang Isang Libo?

This morning, I was met with a lot of saddening news: the plight of typhoon victims, a killed soldier in Marawi, an accident between a bike and a motorcycle, and some more. What is greatly saddening is the news that the House of Representatives exhibited power tripping worthy of a separate Meralco transmission line.

I am appalled.

I am no fan of politicians. It is always so hard to decipher their actions knowing that majority of the decisions they make are targeted at preserving their votes in the future.

I am no fan of this current President of the Philippines. Imagine my kid asking me what P***** I** means. I answered that it was a bad word that is inappropriate for kids. And when I asked where he last heard it, he said, "President Duterte." How can I justify not using the word because it's bad only for him to hear it no less from the President himself.  I have learned to accept the fact that whatever he says would be interpreted correctly by the media, then his minions would later on come up with their own interpretations just to prove that their President meant something else and the media got it all wrong. Despite this, I believed that he should still be given a chance to prove his detractors, me included, wrong. Heck, I even tried to apply for work in a Presidential office just to understand his philosophy and attitude. 

Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City

Facts: Valenciano wrote several letters to former Chief Justice Renato S. Puno, complaining about the holding of masses during lunch break at the basement of the Quezon City Hall of Justice. He claimed that the religious icons placed there, the electric organ and other items related to the celebration of masses therein violated the separation of the constitutional provision on the separation of the Church and State. He also claimed, among others, that the choir rehearsals disturbed the other employees and that the other employees could no longer attend to their personal necessities as they cannot go to the lavatories which are located near the basement.

Issue: Whether there was a violation of the constitutional provision on the separation of the Church and State with the holding of masses during lunch break at the basement of the Quezon City Hall of Justice.

Held: There was no violation.

The present controversy did not involve a national or local law in conflict with the Free Exercise Clause. Valenciano was merely questioning the propriety of holding religious masses at the basement of the QC Hall of Justice.

By allowing the holding of masses, the Court could not be said to have established Roman Catholicism as an official religion or to have endorsed the same. It also allowed other religious denominations to practice their religion within the courthouses.

Thus, the holding of religious rituals at the Halls of Justice does not amount to a union of Church and State. While the Church and State are separate, the latter still recognizes the inherent right of the people to have some form of belief system. Such is enshrined in our Constitution.

Besides, allowing religion to flourish is not contrary to the principle of separation of Church and State.

In order to give life to the constitutional right of freedom of religion, the State adopts a policy of accommodation - a recognition of the reality that some governmental measures may not be imposed on a certain portion of the population for the reason that these measures are contrary to their religious beliefs. As long as it can be shown that the exercise of the right does not impair the public welfare, the attempt of the State to regulate or prohibit such right would be an unconstitutional encroachment.

There is in this case, merely an accommodation.

First, there is no law, ordinance or circular issued by any duly constitutive authorities expresslly mandating that judicial employees attend the mass.

Second, when judiciary employees attend the masses to profess their faith, it is at their own initiative and on their own free will.

Third, no government funds are being spent because the lighting and airconditioning continue to be operational even if there are no religious rituals being observed.

Fourth, the basement has neither been converted into a Roman Catholic Chapel not has it been permanently appropriated for the exclusive use of the faithful.

Fifth, the allowance of religious masses has not prejudiced other religions.

sMiLe!!

Executive Order on Salary Increase for Government Workers

Hello!

Long time, no post! To start off the year with good news, Pres. P-noy has signed the Executive Order implementing the increase of the salary of government workers, in response to the deadlock on the Salary Standardization Law in the Congress. So while the legislators are busy campaigning, the President signed this EO since anyway, the increase for the year is already included in the budget.

Here's DBM Secretary Abad's message on the salary increase:

We are happy to announce that the President has signed the DBM-proposed Executive Order modifying the salary schedule and authorizing the grant of additional benefits for both civilian and military and uniformed personnel (MUP).

We commend the President for his swift and decisive action in response to the congressional deadlock on the issue of the indexation of MUP pension, which resulted in the non-passage of the proposed Salary Standardization Law of 2015 (SSL 2015).

This action by the President leverages the benefits package in order to increase the take-home pay of government employees as stipulated in the proposed SSL bills.

The Executive Order effects compensation adjustments for this year as an interim measure to implement Tranche 1 of the proposed SSL, the full year requirement for which has already been provided in the National budget. 

For civilian government personnel, the EO effects the adoption of the same proposals in House Bill 6268 and Senate Bill 2671 for salary increase, the grant of the mid-year bonus equivalent to one month's basic salary, and the Productivity Enhancement Incentive (PEI) at P5,000.

GOCCs not covered by the Governance Commission for GOCCs may implement the aforementioned compensation adjustments charged to their corporate funds.
LGUS may also implement the compensation adjustments subject to the Personnel Services limitation under the law. 

For MUP, the EO effects the increase of Hazard Pay, and the grant of a substantial Provisional Allowance and an Officers' Allowance in lieu of Base Pay increase. These two new allowances will approximate the remuneration has Base Pay been increased.

 The amounts of these allowances are also based on the proposed increases in Base Pay under SSL 2015 bill. This is an interim measure until such time that a pension reform measure is passed in Congress that will mitigate the impact of pension indexation. 

The implementation of these compensation adjustments provided in the EO shall be effective January 1, 2016 with respect to all civilian and MUP personnel. With respect to regular members of the Cabinet, the effectivity is on July 1, 2016.  For the President, Vice-President, and Members of Congress, the compensation adjustments shall take effect only after the expiration of the respective terms of the incumbents. 

We trust that Congress will pass the SSL when it resumes so that the proposed compensation adjustments to be implemented in four tranches over four years will be permanent. With its passage, we will be able to achieve the desired outcome of the of the proposed SSL, which is to bring the compensation of all government workers to at least 70 percent of the market rate. 

Source: Official Gazette

For some people, this may appear to be a campaign propaganda of the current administration. I think it is, but it doesn't mean that government employees and their families will vote for P-noy's candidate just because of this increase. I think government employees have their own standards for their chosen candidates and are capable of voting wisely on their own.

I have reservations regarding the amount of the increase though. I was hoping that those in the lower salary grade were given a higher rate of increase.  It should not have been based on the percentage of a salary, but a fixed amount to allow everybody to enjoy the same increase. BUT, I believe the purpose of the SSL is to put the salaries of the top managers/officials  of the government at par with the salaries of those of equivalent rank in the private sector, hence, the variance in the increase between the rank and files and the bosses.

Still, I will accept the blessing. Thanks, Mr. President!


sMiLe!!

Hail to the New Breed of Lawyers!

Congratulations to those who passed the 2014 Bar Examinations!

It was a long and arduous task, but you made it!

I especially congratulate Atty. Mark Orline S. Buena -  a former student in college sometime in 2004.

Many years ago,  when someone asked if all the tears and hardwork during law school were worth it when I became a lawyer. I would immediately say, it's not worth it. At that time, I was working for someone whom I felt looked down on the judiciary - totally contrary to my own views and training.

Now, if someone asks me that question, I would say, "Yes, it was worth it!" without hesitation.  You see, if I had not gone to law school, I would not be allowed to teach in college, I would not have met my students (Marian Rivera included), I would not have met Mark.

As early as five years old, I wanted to be a teacher (or a singer). I convinced myself to take up law in college, though I had fleeting thoughts of it in high school. Being waitlisted in the Public Health Program made me decide to take up Political Science. I just wanted to be a teacher and law school made that dream come true.

I remember about four years ago, during our last meeting in an international law class with students taking up Development Studies, the students gave me a choice- leave the room or close my eyes while they do something. I didn't want to stand up, so I closed my eyes. When they let me open it, they had a candle, and what was written on the board was the lyrics of "Thank you" and the whole class sang it to me. I am not really sure which version they sang - Nat King Cole's or Tyler Collins. But it was enough to bring tears to my eyes. It might have been a love song, but the words "thank you" really hit the mark. I have never been thanked like that before in my work as a lawyer.

This morning, I congratulated Mark. You know, after all these years, he kept in touch, an occasional "hi" or "hello" or "how are you" on Yahoo Messenger. And I appreciated it very much.   What brought me tears was when I left him a message this morning when the results came out. He was offline, but I still typed "congrats panero!"

His reply really made me feel warm inside.

Who wouldn't be touched by something like that!

To you Mark, you are one of those rare people whose feet never left the ground while reaching for the stars.  I am so blessed to have met you and thank you so much for affirming my love for teaching. Congratulations Atty. Mark!

Again, is all the hard work worth it? Yes, because if I hadn't studied law, I wouldn't be in this place right now, happy, loved and appreciated.

To all my good friends who were unsuccessful, I don't know what to say to shoo away the bad feeling, but I hope it is enough to say that I know how it feels, trust me.


sMiLe!!

Jethro Intelligence and Yakult Phils. vs. The Hon. Secretary of Labor, et al.

Jethro Intelligence & Security Corp and Yakult Philippines, Inc. versus The Hon. Secretary of Labor, Frederick Garcia, Gil Cordero, Leonielyn Udalbe, Michael Benoza, Edwin Abliter, Celedonio Subere and Ma. Corazon Lanuza

G.R. No.   172537
August 14, 2009

Facts: Petitioner Jethro Intelligence and Security Corporation (Jethro) is a security service contractor with a security service contract agreement with co-petitioner Yakult Phils., Inc. (Yakult).   The Department of Labor and Employment (DOLE)-Regional Office No. IV conducted an inspection at Yakult’s premises in Calamba, Laguna in the course of which several labor standards violations were noted, including keeping of payrolls and daily time records in the main office,  underpayment of wages, overtime pay and other benefits, and non-registration with the DOLE as required under Department Order No. 18-02. 

The DOLE Regional Director, noting petitioners’ failure to rectify the violations noted during the above-stated inspection within the period given for the purpose, found them jointly and severally liable to herein respondents for the aggregate amount of  EIGHT HUNDRED NINE THOUSAND TWO HUNDRED TEN AND 16/100 PESOS (P809,210.16) representing their wage differentials, regular holiday pay, special day premium pay, 13^th month pay, overtime pay, service incentive leave pay, night shift differential premium and rest day premium.  Petitioners were also ordered to submit proof of payment to the claimants within ten calendar days, failing which the entire award would be doubled, pursuant to Republic Act No. 8188, and the corresponding writs of execution and garnishment would be issued.  

Jethro and Yakult appealed to the Secretary of Labor (SOLE). Then SOLE Patricia A. Sto. Tomas partially granted petitioner Jethro’s appeal by affirming with modification the Regional Director’s Order dated September 9, 2004  by deleting the penalty of double indemnity and setting aside the writs of execution and garnishment, without prejudice to the subsequent issuance by the Regional Director of the writs necessary to implement the said Decision.  They filed a Motion for Reconsideration the SOLE Decision, which was denied. They then filed a petition for certiorari before the Court of Appeals. The CA denied the petition. They filed another Motion for Reconsideration which was denied so they filed a petition for review on certiorari with the Supreme Court. 

Issue: W/N  certiorari should be granted (w/n there was grave abuse of discretion on the part of the SOLE and W/N the writs of execution and garnishment subsequently issued were not in order since Petitioners have filed the required bond equivalent to the judgment award, and the Regional Director’s Order was not served on their counsel of record.

Ruling: The petition is bereft of merit.

The sole office of a writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack of jurisdiction.  It does not include the correction of a tribunal’s  evaluation of the evidence and factual findings thereon, especially since factual findings of administrative agencies are generally held to be binding and final so long as they are supported by substantial evidence in the record of the case.

In dismissing petitioners’ petition for certiorari and thus affirming the SOLE Decision, the appellate court did not err.  The scope of the visitorial powers of the SOLE and his/her duly authorized representatives was clarified in Allied Investigation Bureau, Inc. v. Secretary of Labor and Employment,[12] viz:

While it is true that under Articles 129 and 217 of the Labor Code, the Labor Arbiter has jurisdiction to hear and decide cases where the aggregate money claims of each employee exceeds P5,000.00, said provisions do not contemplate nor cover the visitorial and enforcement powers of the Secretary of Labor or his duly authorized representatives.

Rather, said powers are defined and set forth in Article 128 of the Labor Code (as amended by R.A. No. 7730) thus:

Art. 128.  Visitorial and enforcement power.—

x x x x

(b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection.  The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the finding of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. [Emphasis, underscoring and italics supplied]

           In the case at bar, the Secretary of Labor correctly assumed jurisdiction over the case as it does not come under the exception clause in Art. 128(b) of the Labor Code. While petitioner Jethro appealed the inspection results and there is a need to examine evidentiary matters to resolve the issues raised, the payrolls presented by it were considered in the ordinary course of inspection.  While the employment records of the employees could not be expected to be found in Yakult’s premises in Calamba, as Jethro’s offices are in Quezon City, the records show that Jethro was given ample opportunity to present its payrolls and other pertinent documents during the hearings and to rectify the violations noted during the ocular inspection.   It, however, failed to do so, more particularly to submit competent proof that it was giving its security guards the wages and benefits mandated by law.   

Jethro’s failure to keep payrolls and daily time records in Yakult’s premises was not the only labor standard violation found to have been committed by it; it likewise failed to register as a service contractor with the DOLE, pursuant to Department Order No. 18-02 and, as earlier stated, to pay the wages and benefits in accordance with the rates prescribed by law.

Lastly, Sec. 5, Rule V (Execution) of the Rules on Disposition of Labor Standards Cases in Regional Offices provides that the filing of a petition for certiorari shall not stay the execution of the appealed order or decision, unless the aggrieved party secures a temporary restraining order (TRO) from the Court.  In the case at bar, no TRO or injunction was issued, hence, the issuance of the questioned writs of execution and garnishment by the DOLE-Regional Director was in order.

sMiLe!!

Bar Exams Probably to Come Out at the End of this Month

Bar examinees, it's that time of year! Usually, around the end of March, the results of the Bar Exams are released. Those who have taken the bar anticipate the last week of March as that moment where they would learn if they've been accepted to be part of the noble legal profession.

When I was still waiting for the bar exam results one of my concerns was,  "Kapag naging abogado na ako, pano na ako maliligo sa ulan?"Every year, during rainy season, the child in me would always find that perfect opportunity to bathe in the rain, on the street.  Nakakahiya kapag abogado na ako!

Now, earning my "atty." didn't prevent me from indulging in that one stupid yet extremely fun activity. I couldn't care less what my neighbors think when they see me outside the house, in the garden, dripping wet and having the time of my life.

And what's more fun, I found a husband who loves bathing in the rain too. And now we have a child with us whenever we dance/play in the rain :)

Going back to those examinees, I wish you lots of luck. Remember, even if you earn your "atty." never forget to enjoy the simple pleasures of life. It's only a title. What you do with your life after you have earned the title is what matters most.

sMiLe!!

Is Moral Turpitude Involved in a Conviction for Homicide?

Melvyn G. Garcia vs. Raul Sesbreño
AC No. 7973  and 10457
February 3, 2015


Garcia filed a complaint for disbarment against Sesbreño, claiming that the latter still practices law despite being convicted of homicide in Criminal Case CBU-31733, and despite being on parole and not having fully served his sentence.

Sesbreño argues that his sentence was commuted and the phrase "with the inherent accessory penalty provided by law" was deleted. He also claims that homicide does not involve moral turpitude. He claims that the complaint was purely motivated by bad faith and malice.

According to the Integrated Bar of the Philippines- Committee on Bar Discipline (IBP-CBD), the RTC found Sesbreño guilty of murder and was sentenced to suffer reclusion perpetua. The Supreme Court (SC) downgraded the crime to homicide and he was sentenced to serve imprisonment of 9 years and 1 day as minimum period and 16 years and 4 months imprisonment as maximum period. It held that homicide may or may not involve moral turpitude to be a ground for dismissal, depending on the circumstances of the crime.  It also reviewed the ruling of the SC and found that the circumstances leading to the death of the victim in the criminal case involved moral turpitude.

The IBP-CBD quoted the  SC:

"Respondent acted  like a god who deserved not to be slighted by a couple of drunks who might have shattered the stillness of the early morning with their boisterous antics...Respondent was not only vindictive without a cause; he was cruel with a misplaced sense of superiority."

Issue:  Is moral turpitude involved in a conviction for homicide?

Ruling: Sec. 27, Rule 138 of the Rules of Court states that a member of the bar may be disbarred or suspended as attorney of the Court by reason of his conviction of a crime against moral turpitude. Moral turpitude is an act of baseness, vileness or depravity in the private duties which a man owes to his fellow men or to society, in general, contrary to justice, honesty, modesty or good morals.

Sesbreño was found to have just indiscriminately fired against the victims, Without being provoked, he fired at them. The SC rejected his argument that the commutation given by the President of the Philippines restored his civil and political rights. There was no mention that the executive clemency was absolute and conditional and restored Sesbreño to his full civil and political rights,

The penalty for Sesbreño's crime was never wiped out. Commutation is a mere reduction of penalty. It only partially extinguished criminal liability.

The SC repeated that the practice of law is not a right, but a privilege. It is granted only to those possessing good moral character. A violation of the high moral standards of the legal profession justifies the imposition of the appropriate penalty  against a lawyer, including the penalty of disbarment.

Sesbreño was ordered DISBARRED.

More Taxes Imposed on Allowances of Government Employees

Prices of commodities have gone up, so is the minimum fare. Still, the salaries of workers are the same.  The salaries of government employees have also remained the same for the last four years or so. Now, the government has found another way to milk the government employees for whatever extra money they receive from their government service.  I just noticed, why is the government hell bent on acquiring more funds from taxes when it consistently fails to provide decent public service? 

Ladies and gentlemen, without further adieu, I give you... BIR Revenue Memorandum Order No. 23-2014 which was issued on June 20, 2014. (Applause...Applause... not!!)

The Memorandum Order specifies the benefits that are subject to withholding tax, namely:

A. Allowances, bonuses, honoraria or benefits received by employees and officials in the Legislative Branch, such as anniversary bonus, Special Technical Assistance Allowance, Efficiency Incentive Benefits, Additional, Food Subsidy, Eight (8th) Salary Range Level Allowance, Hospitalization Benefits, Medical Allowance, Clothing Allowance, Longevity Pay, Food Subsidy, Transition Allowance, Cost of Living Allowance, Inflationary Adjustment Assistance, Mid-Year Economic Assistance, Financial Relief Assistance, Grocery Allowance, Thirteenth (13th) Month Pay, Cash Gift and Productivity Incentive Benefit and other allowances, bonuses and benefits given by the Philippine Senate and House of Representatives to their officials and employees, subject to the exemptions enumerated herein. 

B. Allowances, bonuses, honoraria or benefits received by employees and officials in the Judicial Branch, such as the Additional Compensation (ADCOM), Extraordinary and Miscellaneous Expenses (EME), Monthly Special Allowance from the Special Allowance for the Judiciary, Additional Cost of Living Allowance from the Judiciary Development Fund, Productivity Incentive Benefit, Grocery Allowance, Clothing Allowance, Emergency Economic Allowance, Year-End Bonus, Cash Gift, Loyalty Cash Award (Milestone Bonus), SC Christmas Allowance, anniversary bonuses and other allowances, bonuses and benefits given by the Supreme Court of the Philippines and all other courts and offices under the Judicial Branch to their officials and employees, subject to the exemptions enumerated herein. 

C. Compensation for services in whatever form paid, including, but not limited to allowances, bonuses, honoraria or benefits received by employees and officials in the Constitutional bodies (Commission on Election, Commission on Audit, Civil Service Commissioner) and the Office of the Ombudsman, subject to the exemptions enumerated herein. 

D. Allowances, bonuses, honoraria or benefits received by employees and officials in the Executive Branch, such as the Productivity Enhancement Incentive (PEI), Performance-Based Bonus, anniversary bonus and other allowances, bonuses and benefits given by the departments, agencies and other offices under the Executive Branch to their officials and employees, subject to the exemptions enumerated herein. 

The tax rate shall depend on which bracket the income of an employee falls on.

So there, it's as if we're working our as**s off for the government just so the latter can tax us. Sheesh!

If you want to see the entire contents of this BIR Memo, click here.

sMiLe!!

Case Digest: Bobby Rose Frias vs. Atty. Carmelita Bautista-Lozada

A.C. No. 6656
(Formerly CBD-98-591)
May 4, 2006

FACTS: Respondent Atty. Carmelita Bautista-Lozada was formerly found guilty of violating Rules 15.03 and 16.04 of the Code of Professional Responsibility and of willfully disobeying a final and executory decision of the Court of Appeals.  She was suspended from the practice of law for two years.

 

Respondent filed a motion for reconsideration of the order of the Court, contending that, pursuant to Rule VIII of the Rules of Procedure of the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP), the complaint against her was already barred by prescription. She also asserts that her December 7, 1990 loan agreement with complainant complied with Rule 16.04 because the interest of complainant was fully protected.

 

ISSUES: a. Whether or not the administrative complaint is barred by prescription?

 

              b. Whether or not Rule VIII, Section 1 of the Rules of Procedure of the CBD-IBP is valid?

 

RULING: a. Rule VIII, Section 1 of the Rules of Procedure of the CBD-IBP provides:

 

SECTION 1. Prescription. A complaint for disbarment, suspension or discipline of attorneys prescribes in two (2) years from the date of the professional misconduct.

 

 

However, as early as 1967, the Court has held that the defense of prescription does not lie in administrative proceedings against lawyers. And in the 2004 case of Heck v. Santos, the Court declared that an administrative complaint against a member of the bar does not prescribe.

 

       Moreover, assuming that prescription is a valid defense, respondent raised it only at this late stage. We presume she was familiar with that rule yet she failed to invoke it at the earliest opportunity. Instead she opted to insist on her innocence.

     

b. Rule VIII, Section 1 of the Rules of Procedure of the CBD-IBP which provides for a prescriptive period for the filing of administrative complaints against lawyers runs afoul of the settled ruling of the Court. It should therefore be struck down as void and of no legal effect for being ultra vires.

 

 Rule VIII, Section 1 of the Rules of Procedure of the Commission on Bar Discipline of the Integrated Bar of the Philippines is hereby declared null and void. 

 

sMiLe!!

Bar Exam Results Later

According to the grapevine, the bar exam results for 2013 will be released at 1:30 pm. According to more whiskers and much haka-haka, the result is that the passing rate is 20%. How true? (Parang blind item lang ano?)

About 5,593 bar applicants were supposed to take the exams. But I've heard of two (2) examinees who were never allowed to complete the four (4) exam days because of... hmmm... let's just say, katigasan ng ulo.

Anyways, to my friends who are waiting for the results this afternoon, good luck, God bless you.

If you pass, then welcome, mga panyero at panyera. Please don't forget to uphold the profession and that it is a noble one, albeit, controversial because of some rotten tomatoes.

If you don't, wala nang five flunk rule ngayon, kaya try and try and try and try lang!!!





sMiLe!!

Government Employees Can Avail of the Calamity Leave

Papasok ka pa ba?
Photo credit: http://quierosaber.wordpress.com

 

1. Are you a government employee?

2. Did your place (home) get declared under a state of calamity when Typhoon Maring battered the country?

3. Did your house get inundated by floods or any does part of your house need to be repaired due to the recent typhoon?

4. Do any of you immediate relatives need caring for because of the damage brought about by the Typhoon?

5. Did any of your immediate family relatives get sick because of the recent typhoon?

 

If you answered yes to questions 1 and 2 and to questions 3 OR 4 OR 5, then you can avail of the special privilege leave (also known as calamity leave) granted by Civil Service Commission Memorandum Circular No.2, series of 2012, pursuant to  CSC Resolution No. 1200289.

If you need to have your house or any part of it that was destroyed by Maring,
then by all means, take a leave and do it.
Photo credit: www.abc.net.au

The leave is for five (5) days and may be availed of for five straight days or on a staggered basis and will not be deducted from the employee's leave credits.

 







The PDF version of M.C. No. 2 and CSC Reso No. 1200289 may be downloaded here.

 

 

I have pasted the important provisions of M.C. No. 2 here:

 

"xxx

 

1. A five-day special emergency leave shall be granted to government employees directly affected by natural calamity/disaster;

2. The special emerency leave can be applied for five straight working days or on staggered basis and will not be deducted from the employee's leave credits.

3. The purpose of the leave may be any of the following: for urgnet repair and clean-up of damaged house, being stranded in affected areas, disease/illness of employees brought about by natural calamity/disaster, caring of immediate family members affected by natural calamity/disaster;

4. The special emergency leave may be availed of by the affected government employees within thirty days from the first day of calamity declaration by proper government agencies/authorities;

5. A commonly declared natural calamity/disaster may include, but not limited to, earthquakes, flooding, volcanic eruption and landslide that have profound environment effect and/or human loss and frequently cause financial loss; and

6. The head of office shall take full responsibility for the grant of special emergency leave and verification of the employee's eligibility to be granted therefor.  Said verification shall include: validation of place of residence based on latest available records of the affected employee; verification that the place of residence is covered in the declaration of calamity area by the proper government agency; and such other proofs as may be necessary."

 

A supplemental circular to the M.C. No. 2, s. 2012 may also be downloaded here.

 

Ingat po lagi!

 

sMiLe!!