Trillanes won in RTC 148 because he presented evidence correctly

Trillanes won in RTC 148 because he presented evidence correctly

The President issued Proclamation 572, series of 2018, revoking the amnesty of Senator Sonny Trillanes because he allegedly did not file any application for amnesty and also because he did not admit to having committed crimes (which was a condition for amnesty). The Department of Justice filed motions for issuing warrants of arrest in the two courts where his cases were pending – RTC Makati Branch 150 (for rebellion) and RTC Makati Branch 148 (for coup d’etat). RTC 150 issued a warrant of arrest against Trillanes. RTC 148 did not. The difference? Senator Trillanes lost his case in RTC 150 because he did not present his evidence correctly. In RTC 148, his lawyer learned his lesson. Trillanes won his case in RTC 148 because he presented his evidence correctly.

To the  non-lawyer, it seems strange that Trillanes was using the same set of facts. He lost in one case and won in another. The non-lawyer may say that  the problem may lie with the judge. But this is not always the case. Whether biased or not, a judge would have no choice to rule in one way if the evidence clearly  points to it. If the evidence is not clear, then it’s anyone’s guess how a judge would rule.

So, the key is to ensure that the evidence clearly points the judge to the conclusion you wants the judge to make.

Law students have an entire two-unit subject on evidence. The lessons are repeated in the students’ senior year during remedial law review classes. Bar review centers repeat them during bar review classes.

Presentation of evidence is the second most important part of the trial because it determines what evidence the judge can consider in his decision or resolution.

 

What went wrong for Trillanes in RTC 150?

To put it simply, Trillanes did not present his evidence correctly in RTC 150. Because it was not correctly presented, the judge ruled against him.

What went wrong?

There are two types of evidence the judge could weigh. The best evidence is the primary or original evidence. It consists of testimony of witnesses with personal knowledge, object evidence (i.e., the pen used to sign a document , the knife used to murder someone, photos, etc.), official records and certified true copies, and original documentary evidence. One has to present people to authenticate the evidence – to prove that the evidence presented is real, not just manufactured.

The second type of evidence is secondary evidence. These are photocopies, pictures, or other types of evidence to show the existence of the primary evidence, or of facts that would demonstrate the existence of primary evidence. But secondary evidence can only be presented if one shows that the primary evidence is missing and cannot be found. One cannot use secondary evidence without first proving that one cannot get the primary evidence. There are actually other nuances, but they are too detailed to summarize.

(I actually distilled a four-hour class session into two paragraphs here.)

But this was where Trillanes went wrong in RTC 150.

He did not have a lot of primary evidence. He had eyewitness accounts. He presented the person who presided over his sworn statement during the application process. The overwhelming amount of primary evidence was on the side of the prosecution. The problem was that Trillanes did not present his secondary evidence correctly. We see this is in the ruling of RTC 150 when it stated:

“Moreover, presentation of secondary evidence is unavailing for failure to satisfy the requirements in laying the predicate under Rule 130, sections 3, 5, 6, and 7 of the Rules of Court.”

Those rules mentioned by the court was what I just wrote about above. If Trillanes presented his secondary evidence correctly – in a way that the court could have no wiggle room, then the resolution could have been made in his favor.

The court could only make a ruling based on the evidence that is properly presented. It is supposed to ignore improperly presented evidence.

The Trillanes cases are a lesson to law students and law practitioners to make sure they take seriously their law on evidence. These cases demonstrate how presentation of evidence matters, and how the same evidence, if presented improperly can mean a lot of difference.

 

What did Trillanes do correctly in RTC 148?

Trillanes’ lawyer learned from the debacle in RTC 150.

In the presentation of evidence in RTC 148, Trillanes presented secondary evidence properly, which led to its being fully appreciated by Judge Soriano in RTC 148.

RTC 148 found the prosecution’s evidence convincing. But it noted that the prosecution’s evidence was presented only to prove that it did not have any record of Trillanes’ application. The court noted that during presentation of the prosecution’s witness, the witness said that she is not saying that Trillanes never filed an application – only that she has no record of it.

This gave a sufficient opening for Trillanes.

Trillanes submitted eyewitness accounts AND properly presented a lot of secondary evidence. Because of the preponderance of evidence, the judge considered his case more convincing. In this case, the evidence presented by the defense outweighed the evidence presented by the prosecution.

From the evidence, the judge decided that there was no basis to disturb judgment already rendered in Trillanes’ case for coup d’etat. Notwithstanding Proclamation 572, Trillanes was able to show that he filed an application for amnesty and admitted his guilt to the crime of coup d’etat.

 

What effect does Proclamation  572 have?

Trillanes questioned the constitutionality of Proclamation 572. But it looks like he never presented any evidence as to its constitutionality, so the court had to rule against him – that Proclamation 572 is constitutional.

But as to its effect in this case, there was none.

The President issued Proclamation 572 because it could not find any record of Trillanes’ amnesty application. It remains constitutional Trillanes has not been able to successfully prove that it was issued unconstitutionally. But Proclamation 572 is relevant only if he could NOT prove that he actually filed for amnesty and admitted his guilt.

He was able to prove in RTC 148 that he filed an application and admitted his guilt for the case pending there (coup d’ etat). Whether or not he was able to do the same for his other case for rebellion is a different matter, and one which the proper court would decide on its own.

 

Only the President can grant Amnesty

Under the 1987 Constitution and our previous constitutions, only the President can grant amnesty, and only with the concurrence of Congress.

In law school, we all thought that this was a very clear principle, but the Trillianes amnesty issue came up. Now there are debates all over.

Can the President delegate the declaration of who will be covered by amnesty to the Secretary of the Department of National Defense (DND). Many  legal minds now debate this issue, and we will not see it resolved until it is brought to the Supreme Court.

 

Can the President really delegate responsibility?

Yes. In fact, he has to.

The Constitution gives all the powers of the Executive Branch to one person alone – the President. But the President cannot attend to everything. We cannot expect him to be the one running a government school or hospital. We can’t expect him to know everything happening in even just one of his departments. This is why he is allowed to delegate his power to his Cabinet members. In legal terms we consider these people alter-egos of the President.

That means that when Cabinet members act, it is as if it is the President is the one acting. That is a legal principle which the Supreme Court has ruled on in the landmark case of Villena v. Secretary of the Interior in 1939. Since then, the SC has reiterated it consistently. Lawyers call it the Qualified Political Agency doctrine.

Essentially, the doctrine states that all executive and administrative organizations are adjuncts of the President and that the heads of the various executive departments are agents of the President. Hence, all acts of the Secretaries of departments are considered as acts of the President unless he disapproves or changes those acts.

 

Does this mean that the Secretary of National Defense can declare Martial Law when he wants to?

No. The Constitution gives certain powers to the President ALONE, which he cannot delegate to others.

This is also noted in the Villena case. The SC declared that there are two exceptions to the doctrine of Qualified  Political Agency. The exceptions are: (1) “in cases where the Chief Executive is required by the Constitution or the law to act in person or (2) when “the exigencies of the situation demand that he act personally.”

In fact, the Villena case was crystal clear in saying that there are certain constitutional powers that can only be exercised by the President alone, which he cannot delegate to anyone. Those powers should be exercised by him alone. If ever one of his alter-egos perform that action, no amount of approval or official ratification will make the action valid. It would always be illegal. The exact words:

“There are certain constitutional power and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person.” — Supreme Court in Villena vs. Secretary of the Interior (April 21, 1939)

 

What about the Oakwood-Manila Peninsula Siege Amnesty?

President Noynoy Aquino issued  Proclamation No. 75, series of 2010  granting amnesty to those involved in the Oakwood Mutiny, the Marine Standoff, and the Manila Peninsula Incident.

Proclamation 75 delegated to the ad hoc committee of the DND the power to the final determination on who will qualify for amnesty and who will not. It even declared that any decision can be appealed to the Office of the President. The president sent this proclamation to both Houses of Congress for their concurrence.

The Senate and House of Representatives concurred with the terms of Proclamation  No. 75. They issued Concurrent Resolution No. 4, Series of 2010.

No automatic alt text available.The ad hoc committee of the DND made a final determination of who qualified for amnesty. This was signed off by then Secretary of National Defense Voltaire Gazmin. So far, none of the documents presented to the public show that PNoy approved or even signed off on the list.

In fact, the documents show that it was Sec. Gazmin who was made a final determination of who is approved for amnesty and the fact that he was the one who approved the recommendation of the ad hoc amnesty committee  and that he was the one who actually granted the amnesty.

 

What is the issue?

The issue is whether or not the amnesty is valid.

Here, the amnesty issued by the President was issued and concurred with the the Houses of Congress. It detailed a procedure on how amnesty will be determined and approved. It even gave a process for appeals.

It is legal to give the power to process applications and make recommendations to the DND ad hoc committee. This is a very acceptable delegation of power.

But can the power to approve and officially declare who are covered by the amnesty be given to a mere alter-ego of the President? The Constitution itself requires that the President be the one to grant amnesty.

“Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant AMNESTY with the concurrence of a majority of all the Members of the Congress.” -Section 19, Article 7, 1987 Constitution

In light of the Villena case, that means that only the President can grant amnesty. It is an act which he cannot delegate or later on ratify.

The only question we have to answer is what exactly does amnesty include? Is the amnesty just issuance of an amnesty declaration, or does it also include the final declaration of who are granted amnesty?

That is the issue here.

Oscar Franklin Tan wrote an article where he said, “The point is, the Constitution requires the president to personally grant only the amnesty itself, not implement it.”

“Does the president need to personally sign the final certificate? The “Qualified Political Agency” doctrine (a Cabinet secretary’s act is the president’s) is irrelevant. The point is, the Constitution requires the president to personally grant only the amnesty itself, not implement it.” – Oscar Franklin Tan.

READ MORE: Can Blockchain Help Trillanes

That’s a good point. But it isn’t the only opinion going around.

Personal comment

This should not have even been an issue.

I do not understand why the list of approved amnesty applicants could not just have been sent to the Office of the President for final approval. The President does not have to sign the actual certifications of amnesty. But he should at least sign off on the list of approved persons. That only needed a few seconds. He had FIVE YEARS remaining as President.

Something so important that it is explicitly written in the Constitution with such stringent requirements should be treated more seriously.

Let’s compare this: Treaties with foreign countries need JUST the concurrence of the Senate. Getting an amnesty is much harder because it requires getting the concurrence of BOTH the Senate and the House Representatives. If you don’t treat that seriously, there’s something wrong in your priorities.

If the President took this seriously, then it should not even be an issue today. It is just one of those stupid things that could have been avoided easily, but which now take the place of more important national concerns.

 

My previous article on this topic can be read here:

Issues in Proclamation 572 against Trillanes

 

Issues in Proclamation 572 against Trillanes

There are several issues for and against Senator Antonio Trillanes in Proclamation 572 issued by the President declaring his amnesty void ab initio. To understand it better, we have to go back to 2010 when President Noynoy Aquino issued the amnesty and when the Legislature concurred with it.

 

Were the constitutional requirements of the amnesty met?

The amnesty met all the constitutional requirements. Nobody questions or doubts this.

The 1987 Constitution gave the President the power to grant amnesty to a class or group of people who are being prosecuted or punished for a political offense. But this power will only be valid if BOTH the Senate and the House of Representatives concurred with it.

“Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant AMNESTY with the concurrence of a majority of all the Members of the Congress.” -Section 19, Article 7, 1987 Constitution

PNoy issued Proclamation No. 75, series of 2010 granting amnesty to those involved in the Oakwood Mutiny, the Marine Standoff, and the Manila Peninsula Incident.

The amnesty stated the subject of the amnesty – crimes punishable under the Revised Penal Code, the Articles of War or other laws in connection the July 27, 2003 Oakwood Mutiny, the February 2006 Marines Stand-Off and the November 29, 2007 Manila Peninsula Incident. However, instances of rape, acts of torture, crimes against chastity and other crimes committed for personal ends (like theft or robbery) were not part of the amnesty.

It detailed where to apply for the amnesty and where to oppose amnesty applications, specifically, the ad hoc committee of the Department of National Defense (DND). It stated that this committee would be the one to process all applications.

Proclamation 75 also stated that the ad hoc committee of the DND will make the final determination on who will qualify for amnesty and who will not. It even declared that any decision can be appealed to the Office of the President. The president sent this proclamation to both Houses of Congress for their concurrence.

Both the Senate and the House of Representatives started working on a concurrent resolution in July 2010. They came out with Concurrent Resolution No. 4, series of 2010. Here, both Houses of Congress concurred with the proclamation. The Senate adopted the concurrent resolution on December 13, 2010 while the House of Representatives adopted it on December 14, 2010.

Concurrent Resolution No. 4 reproduced the entire text of Proclamation 75 and concurred in its entirety. This included the method for determining who will approve the application for amnesty – the ad hoc DND committee headed by the Secretary of the DND. In addition, the concurring resolution added that the applicant should admit his guilt. Thus, in the form for amnesty application, there was a general admission of guilt included as part of its terms.

Note that there were no individual persons named in Proclamation 75 or Concurrent Resolution No. 4. Instead,  these persons were to be identified and approved later by the ad hoc committee of the DND tasked to process amnesty applications.

From the facts, it looks like the proclamation was validly issued by the President and concurred in by both Houses of Congress. Hence, the constitutional requirements for issuing an amnesty were met.

 

Did Trillanes apply for amnesty?

The Ad Hoc Committee Resolution recognizing that Trillanes, along with several others, filed their application for amnesty

Video footage show Trillanes going to the DND ad hoc committee holding his application sometime in January 2011. He was seen filing his application for amnesty and taking an oath to admit his guilt and swear to the truth of his application.

Later that year, the DND issued an ad hoc committee resolution recognizing that Trillanes, along with several other soldiers, indeed filed their application for amnesty.

Later on, the DND issued a Certificate of Amnesty to him, signed by then DND Secretary Voltaire Gazmin.

On basis of the Certificate of Amnesty, the regular and military courts dismissed the pending cases of Trillanes.

Trillanes admitted that he did file an application for amnesty and that there was a statement in the amnesty form making a general admission of guilt. It was part of the form given by the DND for the amnesty application. He said that he to swear by it, and there was footage of him raising his right hand and taking an oath.

 

What was Proclamation 572, series of 2018 about?

Proclamation 572, series of 2018 revoked the amnesty of Trillanes because he allegedly did not file any application for amnesty and did not admit his guilt.

Office of the President based the Proclamation on a certification issued by the Deputy Chief of Staff that there was no record of Trillanes’ application for amnesty. As a result, the proclamation declared the amnesty of Trillanes void from the start – as if he never received amnesty.

But strangely enough, Proclamation 572 did note that Trillanes’ name was actually included in a resolution that officially stated that he filed his application was was granted amnesty. It is obvious that whoever were involved in the Proclamation did not do enough research. It looks like it was done hurriedly. The date of the certification and the date of the signing of the proclamation makes it quite obvious – the President signed the proclamation just the day after the Deputy Chief of Staff issued the certification about the missing application form.

 

What happened after Proclamation 572 was issued?

The day after Proclamation 572 was issued, the DOJ filed a motion with the Regional Trial Court handling Trillanes’ coup d’etat case for immediate issuance of a warrant of arrest. The DOJ thought that the RTC had only suspended the case while waiting for Trillanes and his cohorts to be granted amnesty. Unfortunately, it turned out that its records were incomplete. Considering that the records were still from 2011, the faulty record keeping could have also been the fault of the previous administration.

The DOJ found out later that day that the case had already been dismissed. The court could have denied the motion right there. But it instead decided to study the case. The court also gave Trillanes time to comment before it would issue its order.

The DOJ later filed a motion for issuance of another warrant of arrest in a different case in a different court. It was more careful here because this time, it knew that the case was already dismissed.

Faced with the fact that the cases against Trillanes had already been dismissed, the DOJ went on to say that Trillanes falsified his amnesty application or certification. However, as the days passed, the authentic documents started showing up.

As of now, the matter has gone beyond the lack of an amnesty application.

The DOJ now argues that whether there was a valid application or not should not matter. What is more important and more glaring is that it was NOT PNoy who granted the amnesty – it was DND Secretary Gazmin who did so. This is shown by  the fact that the resolution approving the persons to be granted amnesty were signed by Gazmin. It was also his signature that appeared in the letters granting amnesty.

The President and the DOJ are saying that a mere Secretary cannot grant amnesty – it should be declared and signed by the President himself.

 

Analysis

No automatic alt text available.The amnesty proclamation was issued by the President and was concurred in by both Houses of Congress. Both the Proclamation No. 75 and Concurrent Resolution No. 4 contained the method by which amnesty application would be received, processed, and approved. It even contained a method of appeals. Both documents gave power to the ad hoc committee of the DND to process and approve the persons who would be granted amnesty.

DND Secretary Gazmin, as head of the committee and head of the DND, therefore had full authority to determine who gets amnesty. This power was delegated to him by both the President and the Houses of Congress.

So, if Trillanes did file his application, took an oath with regard to its contents, and based on that, was granted amnesty, then his grant of amnesty was valid.

Or at least, it should be valid unless there is something about the Proclamation and Concurrent Resolution itself that makes it unconstitutional. If there is, then the Proclamation and Concurrent  Resolution can be declared unconstitutional. The effect of this would be that all who took advantage of the amnesty would now lose all the benefits of the amnesty.

 

What constitutional issue can be raised?

An issue that can be raised is the validity of the delegation of the power to the DND Secretary to make a final decision of who would be approved for amnesty.

The Constitution explicitly gives the power to the President alone. The question is whether or not the President can delegate this power to one of his alter-egos – specifically the DND Secretary.

The constitutional issue:  Is the delegation of authority to Gazmin is a valid delegation of power or not?

Even though the DND Secretary is an alter-ego of the President in the realm of National Defense, the fact remains that he is just an alter-ego, not the President himself. Since the Constitution vests authority solely on the President himself, then it is only the President who should sign the amnesty approval. In other words, the grant of amnesty should have been signed by PNoy, not Gazmin.

A counter argument here is that the Supreme Court had previously ruled on grants of amnesty by commission. The President then did not sign the specific grants of amnesty. Nobody has ever complained against the validity of the authority to sign the amnesty. We have jurisprudence with regard to the Guerilla Amnesty of 1946 issued by then President Manuel A. Roxas.

IN 1946, Roxas created several amnesty commission to process amnesty for guerillas who acted patriotically during World War II. The Legislature then also concurred in the amnesty proclamation. He was not a signatory to these grants of amnesty, but their grants were never questioned on the fact that it was not Roxas himself that signed them. This can be used as precedence to say that the Gazmin amnesty grants are legal.

However, it is a basic legal principle that the Supreme Court should not issue a ruling on issues that are not raised. Since the validity of the signatory was never raised, then there was no way it could have ruled on its validity. This means that if someone were to raise this issue now, then the SC can rule on it.

If this issue goes to the Supreme Court, it would be an interesting case to read.

 

Sereno reprimanded for legal ethics violations

This ends the national controversy some call Serenovella. The Supreme Court reprimanded Justice Maria Lourdes P.A. Sereno for legal ethics violations because of her statements in numerous speaking engagements. The statements implied that a judgment against her in her quo warranto case could only be motivated by a biased court.

At the end of Justice Sereno’s quo warranto case, the Supreme Court ordered her to show them why she should not be punished for violating various codes of legal ethics (Code of Professional Responsibility and the New Code of Judicial Conduct for he Philippine Judiciary), specifically for transgressing the sub judice rule and for casting ill-motives to members of the SC.

Since the controversial quo warranto case was filed and even after she lost that case, Sereno would defend herself in public engagements and speeches. Instead of participating in judicial processes quietly, the SC found that Sereno conducted speeches, accepted interviews, and issued statements discussing the merits of the case. She also cast doubt on the impartiality of some members of the Supreme Court. The SC said that she chose to litigate her case before the public and the media instead of the court.

Defenses of Justice Sereno

Justice Sereno said that in those times, she was NOT acting as a judge or  lawyer. She made those statements as an accused would have defended herself. She said that she was acting “not as counsel or a judge, but as a party litigant.” She felt that her statements did not create any serious threat to the justice system. It was just that the public gave undue attention to them since the quo warranto case was very controversial.

Sereno also said that it was her duty as a Justice of the SC and a lawyer to uphold the constitution and promote respect for law and legal processes. And so, she had a duty to inform the public about the wrongness of the quo warranto case and what it would mean for the country if pursued to an illegal conclusion.

Lastly, Sereno argued that even if her acts were to be considered as legal ethics violations, she should not be disciplined considering the circumstances:

(1) that no less than the Solicitor General made personal attacks against her AND discussed the merits of that case, hence, she had to defend herself in public against those statements; and

(2) that she was never given the right to due process despite her repeated demand.

 

How did the Supreme Court rule?

 

Lawyers and Justices are held to higher standards even if they are party-litigants

One of Justice Sereno’s defenses is that she made those statements not as a judge or a lawyer, but as a party-litigant. She cannot be expected to be detached from her emotions as she is directly affected by the outcome of that case. Just because she is a lawyer and a Chief Justice does not mean that she is less affected by the case.

But the Supreme Court declared that lawyers may be disciplined even for acts that are part of their private lives, not just for actions in pursuit of their profession. The SC makes no distinction. And if that is a high standard, then the standard for a judge is much higher, and even more so for a sitting Chief Justice.

Sereno is required to be respectful to the court. She has to be to be very circumspect with her statements. She cannot just say things that would cause the public to doubt the decision of the Court.

“The fact that respondent was not the judge nor the counsel but a litigant in the subject case does not strip her of her membership in the Bar, as well as her being a Member and head of the highest court of the land at the time. He being a litigant does not mean that she was free to conduct herself in less honorable manner than that expected of a lawyer of judge.” – Supreme Court

 

Violation of the Sub Judice rule

The Sub Judice Rule restricts comments and disclosures on judicial proceedings. This is to prevent prejudging the issue, influencing the court, or obstructing the administration of justice. It is a rule found in our jurisprudence. It  prevents the lawyers, parties, and witnesses involved in the case from making PUBLIC comments about how the court SHOULD decide a case.

But this does not mean that people should be silent about their defenses. They talk about the case and their defenses especially when the case involves public interest. But the most they can do is talk about their defenses or cause of action and the evidence they have. They cannot go further than that by comparing their evidence or publicly assessing the strengths or merits of their case and comparing them to the other side.

Public statements like those have the effect of saying how a court should decide their case and conditioning the public to expect that outcome. Legal ethics considers this a great evil because it makes a court that issues a contrary  decision look biased or malicious, thus endangering the credibility of the judiciary.

In this case, the SC found that Sereno made several violations of the sub judice rule. They cast ill-motive to the Court. The SC cited the May 2, 2018 issue of the Philippine Daily Inquirer wherein several individuals accused several members of the SC of being unable to act with justice, and threatening that the people will not accept any decision from the SC which is against Sereno. The SC determined that such statements are actual attempts to influence its decision-making processes..

The SC then cited several other instances wherein Justice Sereno violated the sub judice rule. These were compiled in a table several pages long. The table of events, the links or sources, and her quoted statements are found in pages 11 to 18 in the SC decision.

The SC noted that Justice Sereno’s statements tended to tarnish the Court’s integrity and attributed ill motives to her fellow Justices. It is true that the quo warranto case was controversial. But it was one thing to show her defenses and vent out her frustrations to the public. It was another thing to use public engagements to cast doubt on the integrity of the SC and its member Justices. She could do one without doing the other.

 

Sereno’s statements were direct and loaded attacks against the SC

Justice Sereno said that she issued her statements as part of her duty as a Justice and a lawyer to uphold the Constitution and promote respect for the law and legal process. She had to defend the judiciary from unconstitutional acts of interference by the Executive Department (only the Office of the Solicitor General is allowed to file the quo warranto case against her, and the OSG is part of the Executive Department).

But when the SC examined her statements, it came to a different conclusion. It found that her statements amounted to direct and loaded attacks against the SC and its members.

The SC declared that no matter how passionate a lawyer is, she must always show proper respect to the Court. When the Judiciary’s highest ranking official starts telling the public that a decision against her is the result of political motivations or bias, then the said official is not instilling any confidence in the court or legal process. This is an open and blatant disrespect to the court and judicial process.

The SC quoted Justice Leonen’s very eloquent words in his dissenting opinion in the quo warranto case where he voted in favor of Justice Sereno. He stated that even though the SC has many faults, there is a right and wrong way to advocate one’s cause in public. A Chief Justice is expected to be the first to defend the SC even when the case is against her very own person. If she instead attacks the Court, she discredits the entire institution and encourages the public to do the same without remorse. Sereno should be humble enough to be open to the possibility that other Justices may not see things her way, and that they may have sufficient legal basis just the same. Narratives meant to simplify and demonize the entire institution by attributing ill motive to its members is not a mark of responsible citizenship.

“This Court has its faults, and I have, on many occasion, written impassioned dissents against my esteemed colleagues. But there have always been just, legal, and right ways to do the right thing. As a Member of this Court, it should be reason that prevails. We should maintain the highest levels of ethics and professional courtesy even as we remain authentic to our convictions as to the right way of reading the law. Despite our most solid belief that we are right, we should still have the humility to be open to the possibility that others may not see it our way.”

“It is reasonable to expect that the Chief Justice should have the broadest equanimity, to have an open mind, and to show leadership by being the first to defend her Court against undeserved, speculative, callous, ad hominem, and irrelevant attacks on their personal reputation. She should be at the forefront to defend the Court against unfounded speculation and attacks. Unfortunately, in her campaign for victory in this case, her speeches may have goaded the public to do so and without remorse.”

“To succeed in discrediting the entire institution for some of its controversial decisions may contribute to weakening the legitimacy of its other opinions to grant succor to those oppressed and to those who suffer injustice.”

-Justice Marvic Leonen

 

Sereno was accorded due process

Justice Sereno said that her statements countering the Solicitor General and a member of the media did not hamper the ability of the SC to render justice. She added that she went public because she was denied due process despite her repeated demands to be heard.

The SC reviewed the statements of the Solicitor General and declared them as harmless. They did not impute any bias to the Court. At most, they merely reiterated the allegations in the quo warranto case. In other words, the SolGen never said that the SC should rule in a certain way. In contrast, Sereno claimed that the only possible way that the SC could credibly rule on the case was to resolve it in her favor. To her, it was the only legal way to resolve it, and that any other result demonstrated bias or ill motive.

With regard to the mediaman, the SC declared that he was just writing about the status of the case, which was part of the freedom of the press. Also, an ordinary citizen’s words cannot be judged with the same standards as that of a member of the Bar, and a sitting Justice at that.

The SC said that Sereno was accorded due process. She had a fair and reasonable opportunity to explain her side. She had been given several opportunities to explain her side in legal proceedings. Public records will show that Congress invited her to shed light on the accusations against her. The SC also gave her opportunities to comment on her quo warranto case. She took advantage of those opportunities and they were covered in the media.

In fact, the SC even held a special hearing for her in the SC Baguio summer session. She answered several questions from her colleagues with regard to the case. The SC even allowed her to raise questions with some of the Justices there. So, there was due process. She not only had the opportunity to file written pleadings and motions, but also had a special hearing for her case.

 

The SC established Sereno’s liability without question

The SC found it quite clear that Sereno imputed ill motives and malice to the Court’s process. Different media organizations covered her multiple series of  public statements. The video recordings can easily be found online. Her statements were quite explicit and could only be  interpreted in one way. They put the SC in a position of disrepute and disrespect.

There is a right way and a wrong way to advocate one’s position in public. Justice Sereno did it the wrong way. All Justices of the SC who participated in this case were of the same opinion. Even those Justices who defended her and voted in her favor in the quo warranto case concurred.

 

Sereno’s punishment

The SC reviewed cases on the penalties against lawyers who resorted to the press instead of using judicial remedies. It also looked at those who made slanderous remarks against a court. Most of the time, the lawyers were punished with one or two years of suspension from practicing law.

The SC recognized that the offenses committed by Justice Sereno are severe enough to be punishable with suspension. The SC had to look at other factors before issuing a suitable penalty.

The SC noted that Sereno was already removed and disqualified as Chief Justice as a result of the quo warranto proceedings. Suspending her from law practice would be too severe a punishment to her, and could ruin her career and future. It cannot condone Sereno’s statements. But the SC considered her long, untarnished government service, specifically when she was teaching in the University of the Philippines and when she was Justice of the SC. During that time, there were no administrative cases filed against her. Her record was clean, and her government service deserved some consideration. The SC therefore decided not to hit her with full force of the law, but instead meted out a lighter penalty.

The SC found Justice Sereno guilty of violating provisions of the Code of Professional Responsibility (specifically, Canon 13 and Canon 11) and the New Code of Judicial Conduct (specifically, Canon 1, Canon 2, Canon 3, and Canon 4).

Instead of suspension, the SC decided to issue a REPRIMAND to her with a STERN WARNING that another violation of the Lawyer’s Oath or the Code of Professional Responsibility shall be meted a much heavier penalty.

 

No Justice of the Supreme Court dissented from this decision

Almost all Justices of the Supreme Court concurred in this decision. None dissented, not even in the punishment meted out. Only Justice Presbitero Velasco took no part in the case because of prior action in a related case.

This should put to rest any question of unfairness or special treatment to Justice Sereno. If there were some issues or misgivings, the Justice who had something to say could have spoken with the same passion and eloquence as in the very controversial quo warranto case.

 

End Notes

This is the link to the case:
RE: SHOW CAUSE ORDER IN THE DECISION DATED MAY 11, 2018 IN G.R. No. 237428 (REPUBLIC OF THE PHILIPPINES, REPRESENTED BY SOLICITOR GENERAL JOSE C. CALIDA v. MARIA LOURDES P.A. SERENO) VELASCO, JR., A.M. No. 18-06-01-SC

Lawyering is not Obstruction of Justice?

Just recently, the Makati police arrested three lawyers – Jan Vincent Soliven, Lenie Rocel Rocha, and Romulo Bernard Alarkon –  while they were documenting the implementation of a search warrant in a popular bar that had been tagged as a drug den. The police charged the lawyers with obstruction of justice, among other crimes.

The owner of the bar engaged their law firm to protect its rights. Among their lawyers’ responsibilities were to make sure that the search was implemented properly, to guard against planting or tampering of evidence, and to document the chain of custody.

One of the most basic things a law student learns is that an establishment owner has a right to be present during the search. That right transfers to lawyers. Lawyers may appear on behalf of their clients or represent them. They can act for them in ways that other agents cannot. This is part of the law profession. There is no need for letter of consent or a special power of attorney to do this.

Let’s look at the facts surrounding the case:

The facts according to the Makati police

The police reported that the lawyers just entered the police line without any permission and without introducing themselves. The policemen supposedly asked them to identify themselves, but they refused to do so.

“Pumasok na lang nang di nagpapaalam. They were cautioned by the police there. They were asked identification pero they refused… They interfered with the procedure.”

-Metro Manila Police director Chief Supt. Guillermo Eleazar

After that, the lawyers started to take pictures and write down notes. In one report, the police said that the lawyers were preventing them from searching other areas in the club.

The police arrested the lawyers allegedly because they did not identify themselves, did not coordinate with them, started taking photos and writing notes, and threatened and intimidated them. The police charged the lawyers with:

  1. Obstruction of justice
  2. Resistance and disobedience
  3. Constructive possession of dangerous drugs (Sec. 11 RA 9165)
  4. Violation of Makati City Ordinance No. 96-298 – unlawful for unauthorized persons to cross a police line.

The police released the three lawyers on August 17, Friday, after 8:00PM, after they received a release order from the Makati Office of the City Prosecutor.  The release order even required the police to “clear out some matters” because their charges did not include the specific acts complained of, “chief among which are: the specific actions that respondents allegedly did that constitute the crimes complained of, and importantly, what actions they did to constitute constructive possession of drugs seized in the premises.”

In other words, the Makati prosecutor’s office ordered the release of the lawyers because the police did not even say what actions of theirs constituted crimes.

The facts according to the lawyers

The accused lawyers claimed to have clearly identified themselves as lawyers. They informed the police that their client was an owner of the establishment. They told the police that they were acting on behalf of their client. They were just writing down notes on what was transpiring at the time and taking photographs and were in no way impeding the search or the taking of evidence.

The facts established by the videos covering the arrest

The videos clearly showed that the lawyers identified themselves as lawyers. One of them even identified themselves as associates of a law firm. The policeman questioning them was asking who their client was. The lawyers refused to give the name, but they did indicate that he was one of the owners of the establishment.

The videos show that at the time they were being arrested, the lawyers did not resist arrest or disobey the policemen. So obviously, the charge that they resisted arrest and were being disobedient is not very convincing.

What’s the law here?

 

Lawyers are NOT your ordinary representatives.

The Supreme Court declared that when lawyers execute their legal duties, they are more than just your ordinary representatives. Because of their profession, they have powers superior to those of an ordinary agent or representative. Moreover, the Supreme Court declared that lawyers are actual officers of the court. They may be considered a “quasi-judicial office.” Theoretically, if you attack a lawyer executing his legal duty, he can sue you for assault under the Revised Penal Code.

“In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client. A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent. Moreover, an attorney also occupies what may be considered as a “quasi-judicial office” since he is in fact an officer of the Court and exercises his judgment in the choice of courses of action to be taken favorable to his client.”

-Supreme Court in Regala v. Sandiganbayan (1996)

This means that lawyers may cross a police line if they do it as part of their legal duty to their client.

The owner of the establishment has the right to be present in searches and seizures.  If he hires a lawyer to represent him, then that lawyer has the right to be present there as well.

The three lawyers are not “unauthorized persons” who are prohibited from entering a police line. In fact, they even have a legal obligation to be there! If they did not enter the premises, their client may sue them in disciplinary proceedings for negligence in execution of their legal duties.

Lawyers do not need written authorization of the client

Among the reasons the Makati police arrested the lawyers is that they had no written authorization from their client.

First of all, there is no law or rule that requires lawyers to submit authorization from their client before they could represent legally them.

Secondly, if you look at related jurisprudence and legal provisions with regard to legal representation, you will find provisions that presume that a lawyer who says that he represents a client is presumed to actually represent him. Section 21 of Rule 138 (authority of the attorney to appear in cases)  states that a lawyer is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client.

Lastly, the work of a lawyer includes appearing for their client during emergencies. In emergent circumstances, it is unreasonable to expect a client to provide lawyers with any paperwork. That is the nature of an emergency – it crops up all of a sudden. That is why lawyers have are legally authorized by their very profession to appear and are presumed to have the full authority of their client to act in their client’s interest.

In certain cases, lawyers do not need to disclose who their client is

The general rule is that a lawyer is required to disclose who his client is. A client’s identity should never be shrouded in mystery. But there is an exception to this rule:

“The court emphasized the exception that a clients name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the clients identity exposes him to possible investigation and sanction by government agencies.”

-Supreme Court in Regala v. Sandiganbayan (1996)

The lawyer may withhold the client’s identity if disclosing it may open him up to liability. When a client thinks that he may incur criminal liability,  consults his attorney about it, and retains his services to help with with that problem, then the name of the client is privileged information that can be legally withheld.

In this instance, disclosing the client’s name to policemen searching the bar for illegal drugs could expose their client to criminal liability. This seems to be what happened in this incident. Disclosing the client’s name might expose him to investigation, legal action, and sanction. If indeed the lawyers refused to name their client, then there is nothing wrong with that. It is their job. In fact, their refusal to disclose the client’s name is a legal duty which the Supreme Court recognizes as valid.

The Supreme Court discussed this issue thoroughly in Regalado v. Sandiganbayan (September 20, 1996). It recognized that it was the duty of the lawyers not to reveal the identity of their clients. And if the lawyers violated that duty, they would expose themselves to litigation by their clients.

“We have no choice but to uphold petitioners’ right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the clients name is not privileged information.” – Supreme Court

Threat and intimidation

Whether there were actual threats and intimidation is not clear. But we have working legal definitions for threats and intimidation.

In legal terms, threats are made when somebody threatens another with wrong-doing against his person, honor, or property. There is intimidation when there is a reasonable and well-grounded fear of an imminent and grave evil a person’s person or property. To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind. The same is true with threats.

Something that nobody disputes is that the three lawyers were unarmed. The policemen present during the search outnumber them, and have guns. The policemen were within their territorial jurisdiction and can easily call for backup.

It is hard to imagine three unarmed lawyers making threats against, or intimidating a large number of armed policemen in public, while cameras and videos capture the moment.

However, since we do not know all the facts, it is prudent to keep an open mind. Stranger things have happened in real life.

Lawyering is not obstruction of justice

Writing down notes and taking pictures is not obstruction of justice.

Neither is objecting to searches that are outside what is written in a search warrant. Search warrants details exactly where to search for contraband. If the place that the authorities want to search is outside that described, then they cannot continue their search there. This is true whether it is just an upstairs floor.

Presidential Decree 1829 describes the acts that are considered as obstruction of justice. The acts described there are the ONLY acts that constitute the crime of Obstruction of Justice. Writing down notes and taking pictures cannot be placed under any of those acts. In fact, none of the acts enumerated so far by the police or the lawyers fall under any of those provisions.

Even the Makati prosecutor’s office thought so, which was why it ordered the Makati police to release of the detained lawyers without bail. In the same order, it even asked the police to describe what acts of the lawyers constituted the crimes they were complaining of.

So as long as the lawyers do not impede the search, their presence is not a crime. The can come close as they want to take pictures, as long as they do not disturb the officers.There is no obstruction of justice there. The police officers are performing a public function, and all public functions may be witnessed. If there is anything objectionable in the way that the search warrant is implemented, the lawyer has the same right as his client to object to its implementation.

In fact, if a lawyer was present while the police document the evidence, this could be brought up during trial just to show that lawyers of the in the chain of evidence, and that the lawyers even properly documented search. The charges would surely stick.

Lawyers cannot be charged for any crime of their client

Due to the special relationship between the law and lawyers, they cannot be charged for any crime that their client committed, unless they themselves committed the crime. The police therefore cannot charge the lawyers of constructive possession of illegal drugs. This is something so basic, that it is a wonder why it was even charged.

Under the law, “constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary.”

Did the lawyers exercise any dominion or control of the bar? Did they even have the right to exercise any control over the bar? Let’s put it this way… Can they take their friends there and give them drinks on the house? No.

The lawyers were present at the search area for two reasons: (1) to ensure that the search warrant is correctly implemented, and (2) to document search and note the chain of custody. The lawyers were not managing the bar. I’m sure that nobody could order cocktails from them, and that they would have to buy their own beer from the place. They did not have any right to exercise control or dominion over the place. They were there only to witness and document the implementation of the search warrant.

Perhaps a reason the police charged them that was to justify their detention for more than 18 hours. Otherwise, the lawyers can charge the officers involved for arbitrary detention. The officers can be sacked or even jailed for this.

 

Conclusion

The lawyers should have been subject to inquest just like any arrested detainee.  Instead, the Office of the City Prosecutor sent a release order to the police station. The order required the police to release the three lawyers because they did not state what acts of the lawyers constituted crimes. But instead of dismissing the case outright, the prosecutor gave the police another chance to charge them. We’ll see how this develops.

An additional complication here is that any evidence found AFTER the policemen arrested the lawyers could be put into question. The police removed the lawyers while they were observing implementation of the warrant. So, any evidence that turned up after can questioned. A judge can even dismiss the case for reasonable doubt because of how the evidence was gathered. Those accused can even question the motives of the police in removing legal counsel during the search itself.

Precautionary hold departure orders (PHDO)

The Supreme Court issued new rules on precautionary hold departure orders (PHDO). The Rule on Precautionary Hold Departure Orders was approved by the Supreme Court on April 7, 2018. It will take effect 15 days after it is published in a newspaper of general circulation. In the meantime, the applications for hold departure orders pending before the trial courts under the old rules should still be acted upon as soon as possible.

The Supreme Court issued the Rules on Precautionary Hold Departure Orders on August 7, 2018

Precautionary Hold Departure Orders or PHDO

A PHDO is “an order in writing issued by a court commanding the Bureau of Immigration to prevent  any attempt by a person suspected of a crime from leaving to depart the Philippines.”

The rules on PHDO authorizes the Regional Trial Court (RTC) to issue a PHDO in cases where an accused is facing a charge where the minimum penalty is at least six (6) years and one (1) day.

Under the current rule (OCA Circular 39-97), the RTC can only issue issue a HDO when the case is already before it, and has already undergone preliminary investigation.

Major difference between a PHDO and a HDO

But a PHDO is different from a HDO.

There is no need for preliminary investigation for the RTC to issue a PHDO (unlike an HDO). It only requires a determination that “that there is a high probability that the subject will depart from the Philippines to evade arrest and prosecution of a crime against him or her.” 

The precautionary hold departure order is issued ex parte. This means that it can be issued only with the the participation of the prosecutor. A prosecutor applies for a PHDO before a regional trial court in the same way that he applies for a search warrant. Based on what the complaint states, the judge makes a finding of probable cause solely  for the purpose of issuing a PHDO. Afterwards, a copy of the PHDO along with the identity details of the accused are transmitted to the Bureau of Immigration where it would be put on the HDO list.

This finding is “without prejudice to the resolution by the prosecutor of any criminal complaint during the preliminary investigation.” That means that once the prosecutor conducts preliminary investigation it can be lifted. In preliminary investigation, the accused presents his defenses and the prosecutor then determines if there is probable cause. If there is no probable cause, the PHDO is withdrawn.

The PHDO remains valid until the court recalls it. But the accused can file a motion questioning the existence of a probable cause being a flight risk. This is something that those with business overseas would normally ask. They may need to go abroad for meetings or other company-related purposes which can suddenly crop up and it would be extremely impractical to conduct court hearings each time to allow the person to leave. For those who simply want to take a family vacation, posting of a bond will probably be sufficient since the vacation is planned ahead of time, and the bond can be recovered when the accused comes back.

Just because some people need to fly out of the country frequently does no make them a flight risk. What makes a person a flight risk is that there is a high probability that the person will not come back after he leaves.

The exception to the rule on territorial jurisdiction is the authority given to regional trial courts in the City of Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro City to act on applications filed by the prosecutor based on complaints instituted by the National Bureau of Investigation, regardless of where the alleged crime was committed.

Only Associate Justice Marvic Leonen dissented from the majority.

The SC allows issuance of precautionary hold departure orders only for those crimes punishable by 6 years and 1 day and higher because these are the crimes where imprisonment is required. Those who commit crimes punishable by less than are covered under the Probation Law, which allows them freedom under probation. Most people will not uproot themselves from their lives here if they can still live freely under probation, but certain imprisonment might cause them to leave.

 

 

Breaking up legally: How not to be sued for breaking up

Statistics will show that it is highly improbable that your first romance would be your last. That means that most people would have broken up at least once in their lives. Breakups can leave lasting impressions. This post is about breaking up legally. It’s about how to break up without breaking any laws. And of course, how not to be sued for breaking up.

affection, board, broken

Breaking up is not punished by law, but…

Legally, breaking up is not punishable by law. In fact, the Supreme Court has actually decided cases on breaking up. Any first year law student will tell that there is no punishment for a breaking a promise to marry. The Supreme Court’s legal principle in Wassmer vs. Velez is something committed to memory that early in our law school lives: “A breach of a promise to marry per se is not an actionable wrong.”

“Generally a breach of a promise to marry per se is not an actionable wrong.”

If you are already engaged, and you decide to call off the marriage, there is no crime and there is no civil liability for damages. The Supreme Court made an exception to the rule. Breaking up is okay. But it is HOW you break up that determines if you have any legal liability.

The Supreme Court ruling tells us that breaking up in a way that willfully causes loss or injury to another in a manner that is contrary to morals, good customs, or public policy shall make the person liable for damages, even if the act is not contrary to law.

What happened in that case is that the engaged couple already had set a date and sent out formal invitations. The bride already bought her gown, party clothes, and dresses for the maid of honor and flower girl. An expensive matrimonial bed was bought. Bridal showers and gifts were given. But two days before the wedding, the groom disappeared, leaving behind a note that they should postpone the wedding because his mother was against it. The day before the wedding, he wired the bride that he would be returning soon. He never did. The Supreme Court said that going through all the preparations and publicity, only to walk out so close to it is “palpably and unjustifiably contrary to good customs.” The runaway groom was made to pay damages.

Is this case still good up to now?

This case was decided in 1964. It is still good law, and can be applied to both the man or the woman.

But these days, doing this could now put you in jail if you break up with a woman. This is because we now have R.A. No. 9262 – the Anti-Violence Against Women and Children Act, or “Anti-VAWC Law.” 

The Anti-VAWC Law doesn’t just cover engaged couples. It covers those in dating relationships, sexual relationships, and married couples. It punishes a person for engaging in purposeful or reckless conduct that causes substantial emotional or psychological distress to the woman.

When is breaking up a crime?

Breaking up is part of life. Yes, it can cause emotional and psychological distress to a woman. But the act of breaking up is not actionable by law. It is not done to a woman. Rather, the man cuts off his ties to the woman. He is doing the act for himself. Breaking up in itself is not a crime. It is HOW you break up with a woman which determines if your action is a crime or not.

Breaking up becomes legally punishable if a person breaks up with the woman in a purposefully abuse way or through reckless misconduct, which causes her substantial emotional or psychological distress.

What does this mean in actual practice?

If you decide to break up with somebody, be at your best behavior. Do not say something really bad or insult her. Be sensitive about her feelings. Try to give her closure and do not lead her on or make her expect something unrealistic from you. Be courteous and tactful, and learn to say “No” firmly but gently if she wants you to stay. You not only owe it to her because of what you shared together, but you should do all this to ensure she will not have any grounds to sue you for causing her psychological abuse.

Do not propose if you feel pressured because it is the next logical step in your relationship. If wedding preparations start getting serious and a lot of resources are expended, if you change your mind, you may end up in jail. Or worse – married.

Note again that is is not the break up being punished. It is HOW you break up that is punished. If your break up is done right, then there is nothing to worry about. Not only are you safe, but you did the responsible thing.

What about ghosting?

Ghosting is simply fading away without ending the relationship, but leaving it up to the person to cope with the disappearance. There are many who find this style of breaking off relationships appealing because it leaves everything in limbo and is almost perfect for confrontation avoidance. Many confrontation-averse men use this in their relationships.

Although psychological studies have found that the number of people who find ghosting an acceptable practice is increasing, it has largely remained frowned upon and is considered against good custom. This means that ghosting may make a person liable for psychological abuse particularly if the women left behind could point to clinical findings of depression and drug use in relation to the act of the person ghosting her. This is considered as reckless conduct that caused emotional or psychological distress.

Breakups through text messages?

This is somewhat acceptable these days, although most people would prefer that breakups be done face-to-face. Again, this style is used by the confrontation-averse.

As long as no insults are traded, there should be no criminal or civil liability. If the object is simply to break up, then informing the woman of a breakup by text or messaging apps is not a crime. There is no formal requirement for a breakup after all. It is only important that the breakup be made known without abusing one’s right of self-expression.

Of course, breaking up by text can be abusive too. It would depend on the timing.

Sending a breakup text in the middle of your partner’s career-making presentation before an international audience can be considered reckless or abusive when you know she would read it. It could wreck her disposition and lead to career-ending mistakes or even breakdowns.

How to protect yourself from being sued

Breaking up is normally done in private, without witnesses. In such casess, it would be easy for a woman to manufacture a violation of the Anti-VAWC Law even if there was none.

Yes, there are women who do this in an effort to get even.

How do you protect yourself?

Anecdotal evidence indicates that it is not safe to break up inside a car. Yes, whatever you do, don’t break up inside a car. Don’t do it even when parked. It is better to break up through text than to break up in a car. This is not just because of the risk of accident. It is also because it is easier to manufacture allegations of physical or psychological violence which occurred inside a car.

Break up in a public place, preferably one with a CCTV. This way, there will be evidence of a non-violent breakup. The presence of people also prevents both parties from getting too emotional, and preventing displays of emotion which could escalate in abusive behavior if done in private.

Whatever you do, be kind, sensitive, and tactful. Be a decent human being. Not only is it something you owe to the person you’re breaking up with, but helping your partner digest and understand why you cannot continue your relationship is something you are responsible for. You got into the relationship with her, so it is just fair that you give her the reasons why you want to end something she gave so much of her time and heart for. And you should do it with respect for her as somebody you love.

Social media & Privacy: When can you be sued for what you post on Facebook?

The Department of Justice noted a sharp increase in litigation involving social media since 2014. Facebook, Twitter, and Instagram are part of our lives. They have become primary sources of information for many of us and are part of the ways we interact with the world. One of the biggest concerns now is preventing or prosecuting social media litigation. Privacy settings play a key role.

YES, people can sue you for what you post on Facebook UNLESS you’re careful.

I’m not just referring to libel here. The case could be dismissal or expulsion from school, termination from work, criminal prosecution, or administrative sanction for whatever reason, simply because a person published something online.

Online posts and pictures may be used as evidence

Since the E-Commerce Act and the Rules on Electronic Evidence were implemented, anything a person sends online may be used as evidence. It is simply a matter of identifying the person and finding the person’s address. Once it is shown that the post or picture was sent by a certain person, then it may be used in evidence against that person to determine his guilt.

The right of privacy in the Facebook Era

Privacy advocates say that a person has a right of privacy online, even on Facebook. But the Supreme Court said that this is only partially true. This has led to a rise in social media litigation.

The Supreme Court recognized that a person has a right to privacy online. His posts or pictures are protected and cannot be used as evidence against him in any proceeding without his permission. But this right is limited by the expectations of privacy in the application or website he is using.

To what extent is the right to privacy protected in online social networks? The very purpose of these networks is to socialize and to share information about a person, some of which would have otherwise remained personal or private. Social media networks give its users a platform to share with and interact with one another. How is there an expectation of privacy when the application itself is geared for social contact?

Privacy Settings and their effect

In Facebook, the terms of use and the Privacy Settings of the user determine one’s expectation of privacy. Facebook gives its users the privacy settings that regulate the accessibility of a user’s profile, his status postings, photos, etc.:

(a) Public – default setting; every Facebook user can see
(b) Friends of Friends – only the user’s Friends and their Friends can see
(c) Friends – only the Friends of the user can see
(d) Custom – visible only to particular friends of networks of the user
(e) Only Me – viewed solely by the user

Obviously, as the privacy settings become more limiting, fewer Facebook users could view the person’s profile or entries. Without these settings, there would be no reasonable expectation of privacy. But since these settings are present, the Supreme Court declared that Facebook users have an expectation of privacy if their post is limited only to a few persons, a a limited group of persons.

Is privacy protected automatically?

No. The Supreme Court said that there is no automatic protection of privacy.

The Supreme Court noted that a person who places a photo on the Internet intends to forsake and renounce all privacy rights to it particularly when no measures were used to control access to it.

The Supreme Court took into account that the “Public” setting is the default setting of Facebook, hence, the presumption is that any post made there is for public consumption. The user should prove that the setting is limited only to certain persons.

If the user cannot prove that the post or picture is not limited only to certain persons, then the post cannot be considered private and can be used as evidence in any proceeding. On the other hand, if the post or picture is proven as private, then it cannot be used as evidence in any proceeding. In fact, the user can even file a cybercrime case against his accuser for using or gaining access without permission!

Will limiting the post to “Friends Only” make it private?

Merely limiting the post or picture to “Friends Only” will NOT make it private.

The Supreme Court stated that some profile accounts have hundreds of friends, so it would be unrealistic to think that exposing your posts to that number of persons would still keep it private. Rather, the user has to show that he was purposely limiting the viewership of the post to certain persons or groups in his network. In fact, those friends could even share the post. Some may even take a screenshot and pass it on. The key is to make it clear that the post is meant only for a few persons.

Is there a definition for “select few”?

Justice Presbiterio Velasco declared in a landmark case that if a Facebook post were limited to the original uploader, through the “Me Only” privacy setting, or screened to limit access to “a select few,” through the “Custom” setting, then it demonstrated an intention to limit access to the particular post, instead of being broadcasted to the public at large or all the user’s friends en masse. In such cases the post would have been considered private and could not be used in any proceeding.

“A select few” could mean the entire membership of a secret group in Facebook, or one organized for exclusivity, because in such case, even if there would be several persons who are part of the group, the expectation is that the posts made there would not be shared privately. This is a personal opinion though, and we can only be certain of this when the Supreme Court decides on such an issue.

 

Leave a legacy, not a burden

Leave a legacy, not a burden

A life insurance policy is one of the most useful tools of estate planning.

This always happens

It is a common story: a wife whose husband died of an illness needs to access conjugal funds kept in a joint bank account under their names. The bank is aware of the husband’s death, and will not let the grieving widow withdraw funds from the account to pay for her husband’s hospitalization and funeral expenses. It requires her to first submit proof of payment of estate tax.

We all know people with the same story, but few prepare for it.

Accessing the bank account

Until recently, banks would freeze your accounts if you died. This was so whether you owned the account by yourself or if you had shared a joint account with another person—even if the other person was your spouse. You could have asked for authorization from the BIR to withdraw up to Php20,000.00; but you still had to submit a certification of payment of estate taxes before being allowed to access the rest of the funds.

The TRAIN Law, or R.A. 10963, made it easier for the heirs to access funds in the account. The heirs just have to pay a final withholding tax of 6% of any withdrawal.

But what if your heirs have no money to pay the tax? What if they spent it all on your medical expenses?

Life Insurance for liquidity

A life insurance policy is one of the most important gifts you can leave your loved ones. At a time when they need funds the most, it could provide them the liquidity to pay for the expenses related to your death. More importantly, it could supplement their income, especially if you were their main family provider.

To exempt the life insurance proceeds from the estate tax, make sure that the designation of your beneficiaries is irrevocable. Otherwise, the life insurance proceeds would be considered part of your gross estate at the time of your death, and would still be subject to estate tax.

Why is it important to make your beneficiary irrevocable?

If you designate someone as your irrevocable beneficiary, you are turning over certain rights to the policy to him/her. In doing so, you are ensuring that the policy will no longer be considered as part of your taxable gross estate at the time of your death. You would then save your heirs from payment of additional estate tax.

But this also means that you will lose some control over your life insurance policy. Should you decide to change your beneficiary, you would have to get the irrevocable beneficiary’s consent first. Hence, it is important to be sure of the person you’re naming as irrevocable beneficiary; otherwise, you may have trouble changing your beneficiary down the line.

Apart from being exempt from estate tax, the proceeds from your life insurance policy could also be used to pay for expenses related to the settlement of your estate.

Life Insurance can help with settlement of the estate

The law requires your heirs to pay estate taxes within 1 year from the time of your death. Before this, they have to make an inventory of all the properties that you left, gather all titles, certificates, deeds, and other papers, engage the services of an accountant, a lawyer, and/or an appraiser, determine the names and other details of all your heirs. In case the available cash of the estate is insufficient to pay the estate tax due, they can ask to pay it in installments within 2 years from your death.

If real properties are involved, they would also have to pay for local transfer taxes, publication fees, and other charges. If they miss the deadlines for payment of these taxes, they would have to pay surcharges and other penalties.

Settling an estate could be costly and time-consuming. Worse, differences among your heirs could delay the process further. (Which is why it is also practical to leave a will that is compliant with the law in both form and substance.)

All these things they have to do while grappling with the loss of a loved one.

Obtaining a life insurance policy with proceeds sufficient to pay for costs related to your death and for settling your estate helps ensure that you will leave your heirs not with a burden but with a legacy.

(Finance doesn’t have to be intimidating. Personal finance is simply managing your money, minimizing your expenses, and finding out ways to increase your net worth. In this blog, I explore some concepts of personal finance and hope to give you a better idea about how to budget your money and, eventually, make your money work for you.)

Joanna Orbe-Dizon is a partner at PM Dizon Law and financial advisor at AXA Philippines. You may reach her at jpo@pmdizon.com

Why did the SEC revoke Rappler's registration?

Why did the SEC revoke Rappler’s registration?

The SEC revoked the registration of Rappler as a Philippine corporation because it disobeyed the rules on foreign participation in media companies.

This is a summary of the SEC case. I’ll write another article with my opinion later.

Summary

Under the 1987 Constitution and several Philippine laws, a media company must be owned and controlled 100% by Filipinos. If a media company gave foreigners control of more than 0% of the company, then the media company violates the law on control restrictions. This was what happened to Rappler.

Rappler’s Board of Directors and shareholders are 100% Filipino.

In 2013 and 2014, Rappler got commitments from foreign investors. In December 2014, Rappler needed to legalize the receipt of foreign money. But it could not issue shares of stock or seats at its board. It spun off a new corporation called Rappler Holdings for the purpose of issuing Philippine Depositary Receipts (PDRs). The PDRs are derivative instruments that derive their value from equity.

Rappler Holdings bought the shares of Rappler in 2015 and then issued PDRs to North Base Madia and Omidyar Network.

There is nothing wrong with issuance of PDRs. And the SEC found nothing wrong with the PDRs issued to North Base Media. The problem lies with the PDRs issued to the Omidyar Network, or what Rappler called the “ON PDRs.”

The ON PDRs had provisions that granted a measure of control over BOTH Rappler Holdings and Rappler Inc.  The provisions included a condition that Rappler and Rappler Holdings cannot alter, modify, or change their Articles of Incorporation and Corporate By-Laws without discussion with ON PDR holders, AND obtaining the approval of at least two-thirds of all issued PDRs.

Philippine foreign equity restrictions require that Filipino control should be 100%. If foreigner get greater than 0% control over the company, then there is a violation of Philippine law on ownership and control of a media corporation.

With the provisions on the ON PDR’s, there was definitely more than 0% control of foreigners. This is a violation of Philippine law on media companies.

As stated by the SEC,

“It is neither 100% control by the Filipino stockholders, nor is it 0% control  by the foreigner PDR holders.”

The SEC said that control isn’t just about ownership of stock. The Securities Regulation Code (SRC) has a very broad definition of control which goes beyond ownership of shares. In the case of PDRs, they are derivative instruments covered by the SRC, so the law’s provisions govern any transaction in connection to PDRs. And the SEC found that Rappler has control issues.

The SEC said that it does not matter when the foreigner exercises  control, or in what instances the foreigner would step in. What matters is that there be none.

“It does not matter if control is available only in certain occasions; there must be no occasion.”

Rappler’s defense

Rappler defended itself, saying that that the PDR provisions are not enough to be considered as “control” of the corporation. Also, it said that “control” is actually defined as ownership of shares, not simply management control. On this, the SEC declared that ANY control is “control.”

One of Rappler’s defenses is that it is not a media company. It stated that what it does is not part of mass media. The SEC threw this defense out the door. In the first place, what it does has been considered by legislators as part of mass media since the tobacco law was passed in 2003. In the second and third place, Rappler had been outing itself publicly as a mass media firm in legal terms and in its press releases.

Rappler also submitted in December 22, 2017 a piece of paper saying that the holders of the PDR are waiving their rights to the control provision of the PDR. The piece of paper was ignored because it was not even authenticated.

What the SEC did

In the end, there was enough basis for the SEC to conclude that Rappler issued the PDRs to illegally skirt the strict ownership and control requirements of Philippine law.  Because of this, the ON PDRs were declared void and Rappler’s Certificate of Registration with the SEC was revoked.

Note that PDRs are not evidence of foreign ownership. It is the contractual provisions in the PDR that will determine foreign control and/or ownership. In Rappler’s case, the PDRs granted its investors some control.

Our law prohibits ANY control.

And that was why Rappler’s registration was revoked.

For the text of the SEC Rappler decision, click HERE.