Monday, August 26, 2019

From Machetes, Bolos, Bamboo Spears... How Far has our Military Developed?


Our heroes fought invaders’ guns with machetes, bolos, bamboo spears, and bows-and-arrows, making do with what colonized Philippines had. Now, they must be turning in their graves to know that 121 years since our independence, we still have in our puny arsenal weapons dating back to world war II.

We should honor our heroes with credible investment in our defense capability—long time coming. While we were dabbling in our military capacity, China has quietly grown its military might to become the world’s third strongest military overall, next only to Russia and the US, but second in terms of the most number of military personnel, only slightly edged out by India.

Make no mistake about it, China has invested significant resources in, and has worked tirelessly for centuries, building its military to become the behemoth that it is now, and for a reason. Let us not kid ourselves that it will yet again let it pass this time.

We can not—we must not—rely on the US to secure our territorial integrity. Even a Mutual Defense Treaty (MDT) will not guarantee that the US will stand on our side at the first signs of trouble. It is not as straightforward as we would like to believe it to be.

Let us consider that the US may be more interested in the trade that goes through the WPS strategic sea lane, which explains why it is insisting in maintaining freedom of navigation, than our sovereign security, if only to spur us to finally get our acts together and draw up a realistic military modernization program.

Thursday, August 22, 2019

Former Mayor and Convicted Rapist and Killer Antonio Sanchez will NOT likely Walk Free


Guevarra: “Former Mayor Sanchez, convicted rapist and killer of Eileen Sarmenta and Allan Gomez, will likely walk free.” https://www.philstar.com/headlines/2019/08/21/1945203/ex-mayor-antonio-sanchez-set-release?fbclid=IwAR2cr63xuNPtZ5DdtC2kONDJD85d3b6DJA7Lsu9gDoLzU1wZa2wCtD4XexI

Words of the lead authority brought the victims’ families to the deepest of despairs, and back to the memory of the ghastliest crime of its time. 

But it’s outrageously premature, and if you consider Guevarra’s use of the adjective “likely” to describe the alleged possibility of Sanchez’s walking free, it sounds irresponsibly biased. 

The truth is, it is a 50-50 chance at best, and the victims’ families should have been spared the harrowing ordeal of reliving the torment of the moment.

The law itself, RA 10592, while increasing the sentence deduction allowed for good conduct, amending article 97 of the Revised Penal Code, provides for conditions for a prisoner or a person deprived of liberty (PDL) to qualify, or be eligible to benefit from this law. That is, among others, that he agrees in writing and with assistance of counsel to abide by the disciplinary rules imposed on convicted prisoners, and that he is not a recidivist, or have been convicted previously twice or more times of any crime; and finally that he is not a recidivist, habitual delinquent, escapee, and is not charged with a heinous crime.

Given these conditions and knowing Sanchez’s notorious and murderous past, the prospect of him walking free is not that rosy at all.  

We may recall that in 1991 or two years before the Sarmenta rape-slay, Sanchez was indicted for ordering the killing and deaths of father and son Nelson and Rickson Penalosa—apparently Nelson was a political leader and supporter of Sanchez’s political rival. Sanchez’s conviction in the Sarmenta rape-slay case became final sometime in 2001, while his conviction in the Penalosa double murder case became final in 1999. 

The law defines recidivist as one who, at the time of his trial for one crime, shall have been convicted by final judgment of another crime embraced in the same title of the Code. Sanchez may be considered a recidivist since he was convicted, successively, of the crimes of double murder and rape with homicide. Rape, by the enactment of amendatory law, RA 8353, has been reclassified as a crime against person, bringing it to “within the same title,” title eight, of the Code, as required by the definition of recidivist. 

Sanchez could also be covered by the second phrase “have been convicted previously twice or more times of any crime,” since Sanchez was previously convicted of two murders, and alternatively, we know too, that he’s been indicted for possession of marijuana in 2006, and for possession of P1.5m worth of shabu in 2010, and presumably for a graft case, since there was forfeiture of his ill-gotten wealth, depending on whether the conviction for the latter cases came earlier.

Significantly, the law excepts from the coverage of the law those who have been charged with a heinous crime. Sanchez have not only been charged, but have been convicted, of heinous crimes, the rape-slay of Sarmenta, with Sanchez’s six conspirators and co-accused taking turns in raping the hapless Sarmenta before killing her, and ending with the killing of Sarmenta’s friend and companion, Gomez, and the senseless murder of the Penalosas.

Obviously, that Sanchez was found in possession of marijuana, of shabu, and a flat-screen television, an air conditioner, and a refrigerator in his cell, in separate instances and all while he was in detention serving sentence, he could not be said to have abided by the rules (and the laws), or have exhibited good behavior. 

For these reasons, the cards are stacked against Sanchez, and the victims’ families can take comfort that it is not a lost fight, not by a long shot. They must take a proactive stance, though. They manifest their objection, and impress upon the authority their intent to see the law’s strict application through every step of the way to ensure that Sanchez will not unduly benefit from this law.

Saturday, August 17, 2019

No Garage, No Car Policy, Government's Save Face Tack


For not doing its job, and to deflect blame, the government trains its eyes on aspiring and struggling car owners. The DILG asks congress to enact a law on “no garage, no car” policy, and Senator Sherwin Gatchalian, uncharacteristically obliges by filing Senate Bill 201, the Proof of Parking Space Act. 

While we all must share in the blame and resolve to play a part in the solution, the government, along with its occupants, especially the politicians, should be decent enough to own up and take responsibility, if it is to have any moral ascendancy on the issue. This problem is clearly a result of the government’s poor policies—something that is commonplace in a corrupt environment.

Long before this traffic mess has grown to the monster that it is now, the government saw this coming, but did not do enough to prevent it: build adequate roads accompanied by effective drainage system; establish an efficient mass transit system. Apparently, this is hard to come by in a corrupt environment.

We scored worst in road index, and we barely beat Cambodia in railroad. Imagine, Cambodia, which became an independent country only in the early 50s, at the time when the Philippines led the economies in Southeast Asia, later formed into ASEAN—to be overtaken just a little over two decades later by Malaysia, Indonesia, and Thailand— ravaged by decades of genocidal and private capital-destructive Khmer Rouge regime, edged us out. We have to be a very inept government for this to happen. No wonder even the war-devastated Vietnam has economically surpassed us.

“The Philippines, meanwhile, scored the lowest in ASEAN and ranked 104th of 137 economies when it comes to quality of roads.” https://www.rappler.com/business/187905-asean-summit-2017-philippines-competitiveness

“In the latest Global Competitiveness Report, the Philippines lags behind the rest of ASEAN in terms of the quality of roads, railroads, ports, air transport, and electricity supply. (In fact, we scored worst on roads and air transport.)” https://www.rappler.com/thought-leaders/188244-wealth-filipinos-compared-asean-neighbors

But even in our present situation, it is ill-advised to require a garage or parking space before one can purchase a car for the following reasons:
  • Most car owners are out of their homes or residences (with their car) during daytime when traffic is heavy, so if at all, a garage, which is most likely empty during hours when traffic is heavy, may contribute very little to solving the traffic problem.
  • Most car owners are forced to acquire a vehicle due to the sorry state of our mass transit and public transport system, and to save them their dignity—you would know this if you’ve tried the MRT, LRT or the decrepit PNR.
  • Some car owners acquire a car to reward themselves for their hard work. It is a valid motivation, and should be promoted as it incents productivity.
  • It is an assault on the middle class, who comprise the majority of single car owners and who may not be able to afford a parking space given the skyrocketing prices of metro manila real estate prices. On the other hand, it favors the rich who own more than one car, and who has enough land or can afford to acquire land for parking space for their fleet. Note, though, that we must not take it against the rich. Remember, they got them from hard work.
  • If the government thinks the solution to the traffic menace is to prohibit roadside parking, then it may craft a policy or enact a legislation on it and apprehend and even impose stiffer penalties on violators. But to require garage for would-be buyers is simply an overstretch. It is like cutting the tree when all that is needed is to straighten a wayward branch.
In the end, the best way to manage a runaway car population is to establish an efficient mass transit system to disincent the excessive use of car, or the purchase of new cars. This notwithstanding, we have to see the increasing car sales as a sign of progress, that it truly is.

Monday, August 29, 2016

Duterte and Dela Rosa Must Rid the Police of their Rogue Elements if their War on Drugs was to Succeed

“Si Melvin nakita pa namin na nakatayo, dumaan pa pero hindi namin makausap. Nakita namin dumaan naka-posas pinasok sa sasakyan. Tapos dinala ng hospital. Pumunta kami sa Kalibo pero ‘yon pala dinala sa Malay hospital. So noong bumalik kami sa Malay, patay na silang dalawa. Tinanong namin ‘yong doctor, dead on arrival na raw,” he said.

If the above account of the Odictas' lawyer is true, then we have a serious reason to be concerned. All this time, the police have always debunked claims that they have authorized the summary killing of suspected pushers, users, and drug lords on the surfeited and overused excuse of resisting arrest and shooting out with police officers endangering their lives. We have always given the police the benefit of the doubt. After all, they enjoy the presumption of regularity in the performance of duty.

President Duterte, whose sincerity you can almost tangibly feel and smell when he speaks, has always vowed to uphold due process despite his penchant for the I will kill you! line, and that suspects will be killed only if they resist arrest, and fight it out with the arresting police officers. PNP chief Ronald Dela Rosa has consistently echoed Duterte’s pronouncement.

This incident, though, impugns the president’s claim of respect for law. This gives the drug users more reasons to doubt the prudence of turning themselves in to the police. If Melvin Odicta, a powerful regional drug lord and viewed as a high-value target, after being seen in handcuffs while being led into a patrol car, could inexplicably turned up dead, what more the small players in this elaborate drug trade scheme? What could these foot soldiers reasonably hope for when they surrender to the police?

I don't doubt the president, but this unbridled killings of arrestees despite the obvious improbability of resistance knowing they would be killed suggest that rogue members of the police force--yes they still exist even among those who actively take part in this war on drugs, or at least make it look like it; even the president has expressed this view--are putting one over Duterte and Dela Rosa by silencing their erstwhile cohorts to keep them from snitching on them and their bosses, or standing witness against them in court using the very program (double barrel and tokhang) that the president has designed to net them.

It is in this aspect that the narco capitalists are outsmarting and outplaying Duterte and Dela Rosa. They are intelligently exploiting this presumption of regularity in the performance of their duty. Who’s pulling the strings on these rogue policemen is anybody’s guess.

The president must neither tire out, nor take these extra-judicial killings for granted. He has to put Dela Rosa to task in investigating these dubious custodial killings. We know there are legitimate kills, but a thousand or so deaths from a template “nanlaban” must merit a deep and resolute investigation into their circumstances. The same goes to the now ubiquitous riding-in-tandem shootings of suspected drug offenders. It does not help that Dela Rosa, in the early goings, expressed his favour for these summary or extra-judicial killings treating them as a boon to their campaign, although he has since repeatedly clarified that he, like the president, hated and would not tolerate extra-judicial killings. His actions, however, continue to play catch-up with his declarations.

 If these rampant extra-judicial killings continue unchecked they may backfire on the president's anti-illegal drugs campaign. When the poor, who have been cheering the initial inroads made on this war on drugs, realize that most of the deaths come from their ranks, they may become disillusioned and turn against the president. When the president alienates the support of his main constituency base, he will lose his political capital and his command may shed off and lose the carte blanche character that it presently enjoys. He may find his order and policies, all of a sudden, susceptible to questions and challenges, and that could derail his efforts. And let’s not forget that the narco capitalists out there are all eyes and ears on any opening that could leave the president vulnerable, and would definitely seize on it.

This unprecedented war on drugs has opened a Pandora’s box that could set us back many years and leave this country a lot worse than Duterte found it if he fails to finish it. Duterte has unleashed the monster we have not seen in these narco capitalists, and they are now more than ever at a heightened alert for a shot at Duterte, and ever ready to mobilize all of their resources to eliminate him by any means.

A Duterte death or removal by any means will leave a leadership vacuum that the narco capitalists would undoubtedly swiftly exploit. It is easy to think that these narco capitalists must be kicking themselves for not going all out in planting themselves in the government when they had the chance. But they have learned their lessons, and they would not make the same mistake.

They lurk around ready to pounce at the slightest opportunity. They believe that, with the exception of Duterte, they could easily snap up a political scoundrel willing to take money, bankroll their bid to power and control them. Before Duterte came into power we had not known how close we came to becoming a narco-state. Until Duterte, we vaguely had a grasp of the enormity of the drug problem. Until Duterte came we had only speculated on how many people in positions of power were on the narco capitalists’ payroll.

Now we know more, and are appaled.  

For the nation’s sake Mr. President, stay safe and alive. We know you are a working president, and it is in your nature to go where your presence matters like attending to a funeral of a fallen policeman or soldier, but you have to take extra precaution. The entire force of the enemy is mobilized round the clock for that one mistake or chance to take you out, and take the country captive, again.

The Odicta killing incident, like the many similar incidents of killing while in police or imminent police custody, reveals that the president has enemies in the midst of his key organizations. He must unmask and bring them to justice.

The police are a good place to start poring over.




Monday, May 2, 2016

The Verdict: By inference, there were substantial deposits made to Duterte's accounts.

Anything less than an absolute waiver to Duterte’s secrecy of bank deposit authorizing BPI to disclose the complete history of all of Duterte’s accounts for the year 2014, to establish the P193M deposits made on March 28, 2014, Duterte’s birthday, and the rest of P211M, and for the 9-year period before 2014, to establish the P2.4B accumulated deposits, is tantamount to admitting the accusation.

According to Trillanes, Duterte's lawyer, Sal Panelo, had only a SPA authorizing Panelo to look into, and a waiver authorizing BPI to disclose, the OUTSTANDING BALANCE of ONE of Duterte’s accounts, despite the fact that Trillanes has always claimed that Duterte has seven (7) accounts with BPI Julia Vargas branch. The authority goes further to state that BPI is authorized to disclose the balance ONLY to Panelo, not even to Trillanes, much less the public. The balance allegedly showed P17k plus.

Let us break it down. A Duterte bank account information disclosed to a Duterte surrogate? It is like Duterte showing the account to himself, and calling it transparency and disclosure. Regardless, Duterte’s legions erupt in ecstasy and call it victory. How pathetic!

It is clear that the Duterte camp is playing on the general collective credulity of Duterte’s supporters.

Again, an outstanding balance does not tell the whole story. In fact, it tells no valuable story at all that could help shed light on the controversy. If Duterte’s accounts indeed received deposits on March 28, 2014, or any date, Duterte could withdraw them just as soon as they came in. He could request a transfer of any amount, or he could do it himself if his account is enrolled online, to another person’s or persons’ account or accounts. They could also do a transfer to layers of accounts to throw any investigation off their tracks.

As if the gambit did not look stupid enough, and to top it all, Panelo claims Duterte has made a  deciding move to prove that he did not have these deposits in his account: Panelo challenges BPI to release a certification saying that Duterte NEVER HAD P211M in that ONE account.

The problem with this is it leaves BPI no choice but to certify to what the Duterte camp has always wanted the public to hear—and hopefully believe. That Duterte did not have at any one time P211M in this ONE account, period.

To demonstrate here’s what BPI is being limited do: if Duterte had P210,999,000.00 in that ONE account, BPI would issue a certification saying Duterte never had P211M in that account—it is less. If Duterte had P500M in that account BPI would also issue a certification saying Duterte never had P211M in that account—it is more. If Duterte had a consolidated balance of P1.7B in all his accounts with BPI Julia Vargas, but only P200M in that ONE account, BPI would still be forced to certify that Duterte never had P211M in that account.


In other words, the Duterte camp is hemming BPI in a situation where its answer could only be what the Duterte camp has always wanted the public to hear and believe, that is, Duterte never had P211M in that one account, as if it makes Duterte less dishonourable if he only had P200M in questionable deposits in his ONE account, or innocent, and Trillanes untruthful, if he had P500M.

Neither does it help that Duterte keeps on harping on the legality of Trillanes baring his bank records to the public, crying over his right to secrecy of bank deposit. The laws are designed to protect the innocent, not to allow one to perpetrate, or hide a crime; to promote justice, not to frustrate or defeat it. For crying out loud Duterte is running for the country’s highest office, and he complains when one controverts his claims, or when one calls his bluffs. Remember, it was he and Cayetano who paraded and flaunted to media their manifesto for transparency calling on all candidates to execute waiver to allow scrutiny of their bank accounts, and all other assets.

Duterte knows very well that the rule in public office is disclosure; secrecy the exception. As a mayor, he was already entitled to less privacy. As a presidential candidate he completely sheds off his privacy protection, although he keeps his rights, that is why he can sue. His claim to his right to privacy cannot override the right of the public, which he proposes to lead, to know everything that touches on his overall fitness to assume the highest office, especially on issues of hidden wealth, since he has always portrayed himself to be of modest means, and live a simple lifestyle.

Another thing that hurts Duterte is his legal contingents. Alvarez and Panelo blabber to the media about how Trillanes violated the law, hearsay, double hearsay, inadmissible evidence, so forth and so on. Haven’t they noticed? Neither Duterte, Alvarez, nor Panelo is in court.

Trillanes came in possession of a material information that the public has an inherent interest to know, considering that Duterte is running for president. Trillanes asserts it is his duty as a senator to take the information to the public, and he willingly took the risk and courted lawsuit. He even vowed to quit the race for the vice-presidency, and resign from senate if he is proven wrong. That shows the substance of his claims.

Why do they need to ask Trillanes to incriminate himself by signing an affidavit on who gave him the information, and how it was obtained? Trillanes may not be a lawyer, but he is not stupid, but then Trillanes did it anyway: he signed an affidavit stating who his source was and the circumstances on how the information was obtained. That puts him another base past Duterte.

Duterte should stop nitpicking and quibbling over his right to secrecy. He may sue Trillanes if he wants, but he must give the public a straight answer to dispel their doubts. Duterte might argue that the public does not believe the allegations. He must be reminded that the public is not only all of his followers who worship him regardless. There are other members of the public who clamour to get to the bottom of the controversy.

Instead of whining over privacy issues, he should bare all and finally put these issues to rest with only days to elections.

Unfortunately for the Duterte camp, the more they make the story circuitous to hide the truth, the more the people see it.




Sunday, November 23, 2014

Vicarious Liability of Employers and Other Persons Responsible for Acts of the Author of Negligence for Damage, Injury, or Death Caused by the Negligent Person

THE HEIRS OF THE LATE RUBEN REINOSO, SR vs. COURT OF APPEALS, et al. G.R. No. 116121 July 18, 2011
Vicarious liability of an employer under Art. 2180, in relation to Art. 2176 of the New Civil Code.
If you are an owner of a commercial vehicle or even private vehicle driven by an employee or a helper acting within the scope of his or her assigned tasks, you may be held liable for damages caused by negligence of said employee.
The bigger problem is, in the event of an accident where the negligence of your employee has been determined, there arises a presumption of negligence on your part, as employer, in the selection and supervision of your employees. To overthrow the presumption, you have to convince the court that you exercised the diligence of a good father of a family in the selection and supervision of your employees.
In the case below, the Court provided a curt, but insightful  illustration of what constitutes diligence of a good father of a family in denying the defendant’s claim that he exercised the required diligence.
“The Court likewise sustains the finding of the RTC that the truck owner, Guballa, failed to rebut the presumption of negligence in the hiring and supervision of his employee. Article 2176, in relation to Article 2180 of the Civil Code, provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
xxxx
Art. 2180. The obligation imposed by Art. 2176 is demandable not only for one’s own acts or omissions but also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damage caused by their employees and household helpers acting within the scope of their assigned tasks even though the former are not engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.
Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection or supervision of his employee.23 Thus, in the selection of prospective employees, employers are required to examine them as to their qualification, experience and service record. With respect to the supervision of employees, employers must formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. These facts must be shown by concrete proof, including documentary evidence.24 Thus, the RTC committed no error in finding that the evidence presented by respondent Guballa was wanting. It ruled:
x x x. As expected, defendant Jose Guballa, attempted to overthrow this presumption of negligence by showing that he had exercised the due diligence required of him by seeing to it that the driver must check the vital parts of the vehicle he is assigned to before he leaves the compound like the oil, water, brakes, gasoline, horn (9 tsn, July 17, 1986); and that Geronimo had been driving for him sometime in 1976 until the collision in litigation came about (5-6 tsn, ibid); that whenever his trucks gets out of the compound to make deliveries, it is always accompanied with two (2) helpers (16-17 tsn, ibid). This was all which he considered as selection and supervision in compliance with the law to free himself from any responsibility. This Court then cannot consider the foregoing as equivalent to an exercise of all the care of a good father of a family in the selection and supervision of his driver Mariano Geronimo."25
WHEREFORE, the petition is GRANTED. The May 20, 1994 Decision and June 30, 1994 Resolution of the Court of Appeals are REVERSED and SET ASIDE and the March 22, 1988 Decision of the Regional Trial Court, Branch 8, Manila, is REINSTATED.
SO ORDERED." (emphasis added)
 

Thursday, August 28, 2014

Iplead: ditch legalese!

When I first enrolled in law school, I struggled putting up with professors, classmates, and books that spoke a strange Jurassic-sounding language—legalese. I had been with the private sector all my life, ten years of which in the banking industry, and a short stint in the insurance industry as a self-employed, and I have not been a fan of this language, which I occasionally bumped into in my readings. I thought why the heck would you speak and write differently from how you would otherwise casually talk?
The point in both is clarity. Unless you purposely want to muddle your statement, you would use plain English. Since Freshman I have been resisting this pervasive persistence in using a language that not only had lost its currency, but has been a source of confusion and more controversy than resolution.
Sadly, while the Court has acknowledged the advantage in using plain English, its decisions promulgated contemporaneous to extolling plain English, prove it’s not that ready to abandon legalese, and is merely paying the audience some lip service.
But I was unfazed, I continued to refuse to talk and write like I had dinosaurs around me. I knew it was a gambit. Many still blindly believe that legalese identifies its users with the law, and those who believe otherwise fall out of favor with legal authorities, say the Bar Examiners in bar examinations. To them if you do legalese, you evince show admirable esprit de corps.
I always thought not. I think legalese are from a long bygone era, and has no place in modern legal society. Those who think they can impress their clients with legalese, translating to fatter billing, underestimate their own clients. Average-educated clients don’t care about and don’t look for legalese, but are comfortable with lawyers who speak and write plain English because they understand what the lawyers are saying to the court, in their behalf.
Think about it, would you be comfortable and happy or would you instead be concerned if your lawyer talked in court in your behalf, and finished without you understanding what he said? What more you if you caught a glimpse of the judge looking just as confused? Can you imagine the torment of tirelessly wondering how you fared in court simply because your lawyer didn’t speak . . . plain English?
I dare to think more. I think sophisticated clients know a lousy lawyer when they see one. And clients see them often in legalese-tongued acts. If I were a client, I would take legalese as a lawyer’s ploy to hide his unpreparedness and incompetence. Why not come clean and plain? You certainly don’t want to get into costly litigation over a confused word or term simply because your lawyer could not resist his worn-out belief that legalese impresses.
One client said to an ipleader (what I call a lawyer who plain-english-advocate) “I appreciate it that you talk in a way that I understand, and I am sure the judge understood, as well.”
Another recounted “I felt insulted that my lawyer talked in court in hifalutin garbage, not because I didn’t understand, but because I knew he was talking nonsense. I fired him before he could explain.”
Despite the fact that law books, the internet legal vastness, and the practice overflow with legalese I strived to find like-minded individuals, and I did find them. Below, I share some of what they had to say about plain English.
To many of them, Bryan A. Garner is a common hero, but I have yet to get my hands on his book.
One of my favorites is a comment to a post:
Re: silly antiquated English pleading —I gained incredible respect for a (female) probate commissioner I met last summer, who said flatly, “no one is going to come or pray on any of my paperwork.”
Here is more, and with links to their websites:
"Legal Writing:Ditch“Here-and-There Words”" by Andy Mergendahl as carried in an article “Doclients expect legalese, and how should you handle it?” by Matthew Salzwedel.
“Legalese” by Translegal.com.
More useful sites, and your own:
"Rule on Writing Numbers" by Jane Stauss+.
Enjoy Reading!