Wednesday, March 25, 2015

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.


Thursday, March 12, 2015

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, 13th 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.


Monday, March 9, 2015

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.


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.