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10月26日 STAKEHOLDERWith the coming Pacquiao-Morales fight, I couldn't help but think that once again, many Filipinos will reach deep into their pockets to place bets on the Pacman, or on Morales (still wish it would be Barrera). Most often, and in order to show that the bet is a serious one, the bettors will leave their bets with a third party, the STAKEHOLDER, so called because he holds the "stakes" of the bettors. Now imagine if Pacquiao-Morales 3 ends with an ambiguous result, say a controversial split decision for Morales when television broadcasts very clearly show that Pacquiao should have won. The bettor who bet on Pacquiao might refuse to pay and might demand of the stakeholder to return his bet. The other bettor, of course, will insist that the stakeholder turn over the money to him. What is the poor stakeholder to do? Similar situations occur everyday. A landlord dies and several heirs demand of the tenants that they be paid the rent. A car borrowed from a friend is claimed by a complete stranger who shows up with a certificate of registration. A check is lost and reported and an attempt to encash is made. In order to avoid being sued and to possibly answer for damages, the stakeholder may file the Special Civil Action of INTERPLEADER. This is an action that will require the different claimants to litigate among themselves, leaving the stakeholder free of liability. Since the stakeholder has no interest in the object being contested, he may even be reimbursed by the real parties in interest for the filing fees. Note: Here in Cebu City, various newspapers have recently been using the term STAKEHOLDER to refer to persons who have an interest in the progress of Cebu. Read the dictionary, my good newsmen. The STAKEHOLDER has no interest. He only temporarily holds for others the object of interest. 10月14日 PRESIDING JUDGEHere's a term that lawyers, even judges, throw around rather freely; THE PRESIDING JUDGE.
Although the term to most people means, "that judge who presides (conducts hearings) in that Court, the "Presiding Judge" actually should not be used for just any judge.
In other jurisdictions, the "Presiding Judge" is the judge who has administrative supervision over the Courts in his area. Thus, a "presiding judge" has at least some sort of "moral ascendancy" over the other judges.
In the Philippines, that role is left to the "Executive Judge". So does that still leave special significance with the term "Presiding Judge" then?
It turns out, yes! In the Philippines, the term "Presiding Judge" refers to a Judge of a single sala station, who, because he or she is all alone, necessarily performs some of the duties of the "Executive Judge".
Thus, in Lapu-Lapu City, for example, where there is only one Municipal Court, my friend, Judge Ester Veloso, is properly referred to as, "The Presiding Judge". Since the Regional Trial Court is a multiple sala (several branches) court, there is no Presiding Regional Trial Judge, although there most certainly is an Executive Judge of the RTC. 11月20日 SOLEMN AFFIRMATIONIt seems a lot of lawyers don't really understand what a solemn affirmation is. Following is an order I recently released that discusses the solemn affirmation in detail.
These cases are before this Court upon two informations filed by the prosecution charging the accused with perjury.
The accused is alleged to have filled up two Personal Data Sheets (Civil Service Forms 212) indicating therein that he is a Filipino citizen even though he is actually a citizen of the United States of America.
Finding during pre-trial that the Personal Data Sheets had not been sworn to before a solemnizing officer, the Court directed the prosecution to submit a position paper to justify bringing the accused to trial.
In its position paper, the prosecution cites as precedent the cases of U.S. vs. Tupasi Molina, People vs. Cruz and Diaz vs. People. These cases do little to support the prosecution’s stand on the issue for they all have to do with statements that were made under oath.
To put the matter in black and white, all the prosecution had to establish was whether or not the accused had made his statements under a solemn affirmation in lieu of an oath. In bringing this case to Court, the prosecution may have misunderstood what exactly a solemn affirmation is.
The prosecution seems to be suffering from the impression that a solemn affirmation is the absence of an oath, when a person otherwise required to swear to the truth of his statements, cannot in conscience take one. Such a simplistic interpretation of the law, however, cannot be adopted by this Court.
A solemn affirmation is;
“A solemn declaration made under the penalties of perjury by a person who conscientiously declines taking an oath.”[1]
“An affirmation is a solemn declaration or assertion that an affidavit is true, that the witness will tell the truth, this being substituted for an oath in certain cases.”[2]
Being a solemn declaration, it is necessary that it be made before a person authorized to administer oaths or solemn affirmations.
“It is evidenced by a jurat properly taken before a duly authorized officer.”[3]
A solemn affirmation therefore, is exactly the same as an oath, except for the fact that it is;
“A solemn statement which omits any religious reference and is by statute equivalent to an oath. The falsity of an affirmation is perjury.”[4]
so that;
“The words, ““So help me God”” are omitted in an affirmation.”[5]
It is not, as the prosecution apparently believes, the omission altogether, of any assertion that a person otherwise required to take an oath, is telling the truth. What is omitted is only any reference to God as in an oath so that the constitutional rights of those who are conscientiously scrupulous about taking one are not violated.
The intent of the second paragraph of Article 183 of the Revised Penal Code of the Philippines is to make clear that a solemn affirmation carries the same weight before the law as an oath, as an oath;
“Xx involves the idea of calling on God to witness what is averred as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favor, in the event of falsehood.” [6]
and an affirmation on the other hand does not quite carry the same weight with those who choose not to take an oath.
The Personal Data Sheets accompanying the two informations before this Court are without jurats or any other indication that the accused made assertions before a solemnizing officer that his entries in the forms were truthful. That he made such an assertion is the very essence of the felony with which he is charged in both informations. There is, therefore, no cause to hold him for trial.
8月14日 THE FALLACY OF A NON-PARTISAN COMELECRight after the 1986 constitution had been ratified, I happened to catch an interview with an American Political Scientist (his name escapes me now though I would very much like to remember who he was) who came to observe the first elections under the new constitution. One of his observations had to do with the "non-partisan" composition of the Commission on Elections. Comparing this to the partisan composition of the American equivalent of the COMELEC, he stated, "Our laws don't presume men to be angels." Aptly said. Indeed, the composition of the COMELEC is now an important matter in light of "Gloriagate" or what the masa simply calls "Hello Garci?". The Garci scandal has opened our minds to the possibility that our COMELEC commissioners are no angels (What, you actually thought they were?) who will decide election controversies with unquestionable impartiality. The mere fact that every commissioner has the same right to vote as every Filipino citizen already means that it is inherently impossible for them to be non-partisan. That our President may have called the Chairman during the elections underlines this situation. That we can have a trustworthy non-partisan COMELEC is a fallacious contention. Let's face it, our COMELEC commissioners are "closet partisans" who will favor their candidates or those of the powers that be that appointed them. We might as well, or should I say, we ought to, adopt a system where the political parties are represented in the COMELEC. In a two party system, the COMELEC would be divided right down the middle, e.g. Four LABAN commissioners and Four LAKAS commissioners. If they acted purely in the interests of a party, there would ALWAYS be a stalemate. Since even COMELEC commissioners should have some qualifications, we can safely presume that the commissioners would still be rational enough to understand that a perpetual stalemate would not be in the best interests of their parties and the people, hence, they will be forced to act in the best interests of the latter. The mathematics are not as simple in a multiparty system, however. But some formula could be worked out that would ensure representation of all parties in the system. For example, raising the necessary number of votes to declare an election result valid from and instead of a simple majority. The end result is a COMELEC whose decisions the political parties will not be quick to question, as they are represented within the COMELEC, and which is beholden to the best interests, not of the political parties, but of the people. Before anyone talks about amending the Constitution to adopt a federal form of government, maybe we should talk about changing the composition of the COMELEC first. 5月19日 OPTIONS, BROKERS & REALTORSOne oft misused word by unlicensed real estate brokers is “option”. To them, an “option” is the authority given them by the landowner to sell the owner’s property. This use of the word "option", not only is wrong, it is a good indicator that you should not be dealing with the broker. An "option" in the Real Estate Industry, refers to an "option to buy." Separate from the contract of sale, it refers to another contract between a potential buyer and the seller of property which gives the potential buyer the exclusive right to purchase the property within a specified period. For example, were I interested in your land, but still unsure if it would fit my needs, I might pay you a small amount, say P10,000.00, to keep you from selling the property to other persons for, say, a couple of weeks. The seller is thus prohibited from selling the property to third parties for two weeks while I am free to consider other real estate (or raise enough money to pay the purchase price). Since I paid you the amount of P10,000.00 to keep you from selling the property, it does not form part of the purchase price should I eventually decide to buy your land. The "option to buy" is very different from "earnest money" which effectively is a downpayment for the land. Law students and licensed brokers are taught the difference, which is why, if you deal with a person who represents himself to be a real estate broker asks you for the "option", you should be on your guard as to whether or not he is legit. You have no obligation, nor any right, to pay unlicensed brokers any commission. To do so is a criminal offense. The best way to find out if you are dealing with a licensed broker is to check his business cards and even stationary, for a licensed broker is required by law to have his License Number printed in any written communication he has with clients or even potential clients. When in doubt, you can always call the Department of Trade and Industry and verify with them if the broker is legit. Licensed brokers, on the other hand, will ask you for either, in plain English, the "Authority to Sell", or in broker's parlance, the "LISTING". The contract that gives the broker the authority to sell is properly called the "LISTING CONTRACT." Thus, you may correctly inquire of a broker if he has a "LISTING" for a three bedroom house with a large garden, e.g. "Do you have a LISTING for a three bedroom house with a large garden?" Or you could ask, if the seller Mr. A refers you to his broker, "Do you have Mr. A's property LISTED?" or "Do you have the LISTING for Mr. A's house?" Which brings us to the term REALTOR. Unknown to the general public, not all Real Estate Brokers, even licensed ones, are REALTORS. A Realtor is a Licensed Real Estate Broker who has joined the National Association of Realtors (based in the United States) or one of its affiliated Real Estate Boards. In the Philippines, the authorized affiliate is the Philippine Association of Real Estate Boards, or PAREB. Thus, all REALTORS are licensed real estate brokers, but not all brokers are REALTORS. REALTORS are bound to respect their own Code of Ethics and Standards, thus assuring that all transactions you have with a REALTOR will be above board. A REALTOR who has violated the Code, may be removed from membership. Licensed Real Estate Brokers who have not joined the NAR or its affiliates are not allowed to use the term REALTOR. One way to determine if the "realtor" is really a realtor is if he has the registered mark after the term in his business cards, i.e. REALTOR®. In the Philippines, Real Estate Brokers are governed or regulated by the Department of Trade and Industry, so you have administrative recourse, aside from resort to the Courts, against your broker if you feel he has engaged in unethical or illegal practices. This should be a good enough reason, apart from the better service they offer, for you to deal with only Licensed Brokers and REALTORS. 4月30日 THEORY OF RELATIVITYI recently had the opportunity to ask Justice Hilarion Aquino about remedies available to an offended party where the information had been dismissed outright for lack of probable cause (see Got Cause?). A hot topic of discussion among judges that they couldn’t resolve by themselves was whether or not the offended party could still prosecute the civil claim. In the Philippines, unlike some jurisdictions, the offended party is entitled to prosecute his claim for his personal injury in the criminal action. What the judges can’t seem to agree on, is whether or not, upon a finding that there is no probable cause to prosecute the accused for the criminal case, the civil claim may proceed in the criminal case. On one hand, some judges say yes. They say it is only just that an offended party should be allowed to pursue his claim so that he may avoid having to go through the inconvenience of filing a separate suit, and thus avoid a multiplicity of suits. Some of us, including this writer, say no. Thus, the question I laid at Justice Aquino’s feet. His answer? “YES! And let me tell you why!” Judges in concurrence with me gasped at this apparent loss in the battle of opinions. Those who still don't bother to determine probable cause were simply left behind. “To prosecute a civil claim successfully, one only needs a preponderance of evidence. To ensure that a criminal case is given due course in Court, one needs probable cause, a level of evidence higher than mere preponderance. Thus, as relative to preponderance, probable cause is a higher standard of evidence, the civil claim may be prosecuted.” I’m sure that would have ended all debate before most fora. Except, the good justice ended his answer with, “That is my THEORY.” With all due respect to the good justice, please allow us in the negative to continue to disagree. The chief point of contention for the contumacious This is vastly different from when an offended party has already presented evidence and the Court, having found no criminal liability, awards the civil claim anyway. In this instance, evidence has already been presented, and the inconvenience for the offended party should he have to file a separate civil claim is manifest, for he would have to prove once again what he had already proven in the criminal action, an unnecessary multiplicity of suits. Note that the civil liability awarded is not based on any criminal act. The Court has simply found that based on the evidence presented, the accused is civilly liable to the offended party for some reason other than a crime. When the case has been dismissed for lack of probable cause, however, the Court makes an express statement that there is no civil liability, as there is no probable cause to believe that the criminal act that gives rise to the civil liability, has occured. 3月19日 GOT CAUSE?One motion quickly gaining favour among lawyers after the 2000 Rules of Criminal Procedure came into effect is the “Motion for Determination of Probable Cause ” to hold the accused for trial.
The 2000 Rules made it clear that every person is entitled to a determination by a JUDGE that there exists cause to charge him with a crime before giving due course to any information (the document that charges the accused with a crime). Previously, judges relied largely on the determination of probable cause by the Public Prosecutor (District Attorney to those of you from the United States of A) even though the Philippine Supreme Court had already expressly declared the right to be of a constitutional nature.
Believing that this imposed an additional burden on the poor, overworked and underpaid judges, I took up my beef with former Court Administrator (later Commission on Elections Chairman and subsequently Solicitor General) Alfredo Benipayo who patiently explained that the right could not be denied any accused under the constitution.
Well, once the word “constitutional” is mentioned, any further argument is negated, so I shut up and went to work determining probable cause in every information that came my way.
The determination of probable cause must be made by the Judge before he issues a warrant of arrest (based on the records transmitted to the Court from the prosecutor) or any other process that might bring the accused into the custody of the Court. If the Judge is not satisfied with the prosecutor’s findings, he may either require the prosecutor to submit additional evidence or dismiss the case outright. This, even before a warrant is issued.
This is why I take issue with the “Motion for Determination of Probable Cause”.
Since a judge already has the burden of making the determination BEFORE he issues the Warrant of Arrest, the Motion has a dubious place in procedure. The issuance of the warrant carries with it the presumption that the judge had already made a determination that probable cause exists to bring the accused to trial. Giving due course to such a motion would be an express admission that the judge had been negligent in performing his duties and open him up to administrative sanction.
Of course, this should not stop lawyers from filing such a motion should the record of the prosecutor (the record of preliminary investigation) be so wanting in (competent) evidence to establish probable cause. In such cases, though, the judge may once again be open to sanction. This, however, should be the exception, rather than the rule. 3月17日 THE CONCEPT OF RENTNewly appointed to the municipal bench, I had the most difficult time determining “reasonable compensation for the use of the premises” in Ejectment cases. It seems lawyers do not want to belabor the issue and do not discuss the topic thoroughly beyond specifying a lump sum in their position papers, even when they ask for it. Ejectment is the cause of action for eviction. Where the Court finds that a defendant should be evicted, it awards "reasonable compensation" to the plaintiff for the period during which he has been deprived of the use of the disputed premises. Ordinarily, this would be equivalent to rent the plaintiff might have earned had he leased the premises to the defendant or any other party. Sometimes, when the suit is brought for the violation of a contract of lease, all the Court needs to do is award rentals in arrears. But what if the suit is filed on some other basis than a written contract? I first brought up this quandary to an expert on Civil Procedure during one of the seminars intended to enhance the knowledge of members of the judiciary and was rewarded with a brusque, “You have to find your own method!” So off I went to find “my own method”. Poring over the Corpus Juris Secundum, I found this little gem; “Interest bears the same relation to money that rent does to land.” Previously, my feeble mind had failed to relate interest with rent. Also coming to my rescue was the ancient Velayo’s Digest (1966), from whence came this contribution: “And in the absence of any other evidence the assessed value should be considered.” These two maxims thus allowed me to come up with what I proudly call, “Dubioz Don's Rule of Thumb in fixing reasonable compensation.” Well, that’s what I call it, even though no one else is aware of it. Where the exact amount of reasonable compensation for the use of the land is not thoroughly discussed by the parties, I take a look at the assessed value in the Tax Declaration of the land or the premises (if there is one). I then fix reasonable compensation at the legal rate of interest of 6% per annum. Interestingly, many Rent Control Laws worldwide have fixed the legal rate of interest as the maximum allowable rent for a contract of lease. In ejectment cases, however, I use the legal rate of interest to determine fair compensation. For those of you who wonder if it shouldn’t be set at 12% per annum, remember that the rate of 12% in the Philippines is for loans or forbearances of money. Otherwise, it should only be 6%. The rate of 12% would best be applied on rentals in arrears or on the amount of compensation granted by the Court itself when the judgment becomes final. 3月11日 DURA LEXOne of the most enduring (pardon the pun) Latin axioms in law is DURA LEX SED LEX. It literally means, “The law may be hard (harsh) but it is the law.”
Well, we all know that DURALEX has been appropriated by a glassware company as a brand name for their unbreakable dinnerware.
This inspired a law professor during my Bar Review to come up with his own Latin axiom using another brand name that’s better known for its resistance to heat rather than its indestructibility.
His axiom? DURA LEX PYREX.
The law may be hard, but it may be broken. SCILICETTo a layman, the S.S. in a legal document may inspire awe and wonder at its formality. Surely, such initials must mean that the document itself could spell the difference between life and death. 3月10日 FAILURE OF LOGICSitting on the bench one clear motion day, I wasn’t quite prepared for one of the strangest motions I had ever come across. LEX LECES BACHELERESGoing over a friend's resumé, I read that he had been studying for a degree in "Lex Leces Bacheleres." TWO COMMON MISTAKES IN PREPARING AFFIDAVITSAt the beginning: Xxxxx. Xxxxx. I WILL DRAWFrom an actual information in a criminal case for grave threats: ENGLISH 101 FOR LAWYERSWhy is it that so many lawyers don't know the difference between the term for a "cause of action" and the reason one has such a cause in the first place? LOSING MY ENGLISHLAW DESTROYS ENGLISH! No doubt about it, ever since my 1st year of law school, my self-expression has been impeded by the legal manner of writing. One sentence into this blog and I already catch myself using "manner of". Needless to say, (there I go again), the natural consequence of four years of law, eight years of practice and four years in the judiciary, connive to bring about a form of english that is best described as gobbledygook! Thank God for the Plain Language initiatives. I've been paying more attention to my daughter's grade 3 Language textbooks. And what better way to practice my rediscovered English than with a BLOG? As this blog grows longer, so should my English become more understandable, devoid of terms that look best in a legal pleading. Here's to plain language! |
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is the fact that the civil liability sought to be prosecuted in a criminal action is that which arises from the criminal act itself. This is very different from the liability that arises from a valid cause of action in a civil case, personal injury included. The only valid conclusion that can be derived from the premises, therefore, I SUBMIT, is that the civil claim can no longer be pursued once a judge dismisses a case outright for lack of probable cause for when the Judge does so, he states at the earliest instance, that there is no cause to believe a crime has occurred, and so the basis of civil liability is absent.
I've even heard people refer to an affidavit as the person's "Sworn Statement", TO WIT; "He stated in his S.S. that...."
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