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.

 

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.

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.

The P1,000.00 budget of the CHR will never be passed.

The CHR statement on the P1,000.00 budget appropriated by the House of Representatives

On September 12, 2017, Congress voted to give the Commission on Human Rights (CHR) a budget of P1,000.00. There is no need to panic. This part of the law will never be passed. And if it is passed, the matter will be brought to the Supreme Court and we can expect that act to be junked.

We can expect a lower budget for the CHR. But for the budget to go down to P1,000.00? It won’t happen. Let’s all breathe, be calm, and find out why:

The CHR has a mandate in the Constitution.

The CHR is an independent office created by the 1987 Constitution. Its functions are mandated by the Constitution. Its personnel and projects are recognized by the Constitution. It was created to expose and do something about any abuses of our government against its people. It was made independent because the drafters of the Constitution recognized a need to ensure that it would always be present to speak out. It isn’t run by donations by private persons. It is run with government funds.

The CHR is NOT a mere creation of the Legislature. Congress cannot just do away with it as it pleases. The reason that its existence is set in stone in the constitution is to ensure that it cannot be legislated away. Congress cannot just completely take away its funding. It is required by the constitution to fund the CHR. Those words are not explicit in the Constitution. You have to read between the lines to see it.

Even the House of Representatives knew that if they did not appropriate any money for the CHR, the law would consider their act illegal. That’s why they decided to put in P1,000.00, not zero. But that’s not even enough for the operations of a skeleton crew.

President Duterte requested a budget of P678 million pesos for the CHR for 2018 (this year’s budget is P749 million). It was the House of Representatives that lowered the budget drastically to P1,000.00. This is not final. The bill would still be transmitted to the Senate. The budget will be rehashed there. After that, it can be taken up again in the bicameral committee. The P1,000.00 budget is far from final.

The CHR is not a mere creation of Creation of the Legislature. Congress cannot just do away with it as it pleases.

So let’s be clear about one thing before we move on. The funding of the CHR can definitely be cut. The only question is with regard to how much funding the Legislature can cut back.

No reduction of salary and benefits, and security of tenure

The CHR has a Chairman and four (4) members. They have security of tenure. They will be paid no matter what. Their salaries and benefits cannot be decreased during their tenure. Congress can legislate their salary, but any change in salary would take effect after their tenure.

The CHR also has other personnel. Some are contractual, while others are plantilla. The budget would also have to consider the salaries of persons with plantilla positions. They have security of tenure as well. The salary standardization law governs their salary and benefits. Those personnel that are contractual may have a problem with their tenure, but if the contracts have already been approved for 2018, then they have a right be paid until the end of their contract.

A P1,000.00 budget will not be enough to pay them. That would make the appropriation unconstitutional. This is basic. It’s not explicit in the law, but it is a basic principle in government.

The CHR has other functions mandated by law and needs funding to execute them

Paying CHR officers and personnel is not enough. They can’t do much unless they are given the funds for executing their functions. Otherwise, they’ll  just stay in their seats and talk among themselves while waiting for their salaries. It would be a big waste of government resources to allow them to do nothing, and you can’t get rid of them because of their security of tenure.

The CHR has functions mandated by the Constitution and special laws. A P1,000.00 budget cannot sustain those functions

The CHR has several functions mandated by the Constitution. A budget of P1,000.00 is not enough to to sustain those functions. And on top of those, the Legislature had also given the CHR other responsibilities as found in special laws, like the Magna Carta for Women, the Anti-Enforced Disappearance Law, and the Anti-Torture Law.

We should also remember that the CHR would have to pay for its electricity, utility, and maintenance bills, office supplies, gasoline, etc.

The CHR cannot execute its constitutionally mandated tasks and the added responsibilities given to it by special laws without a reasonable budget to work with. The President had already recommended a budget of P678 million. I do not understand the logic of the Congressmen in reducing that recommendation to P1,000.00. I do suspect that they did it in attempt to impress the president.

In the end, I am confident that the Senate and Bicameral Committee would do a better job when the bill reaches them.

But note that the Legislature may decide what to fund and what not to fund.  They can determine what activities are useless and useful. The CHR can’t change or juggle these appropriations. It can use savings in those areas to augment their other projects. But remember what happened with PNoy and the DAP? The CHR can’t cut their appropriation to “save” for their other projects. That’s illegal.

Your congressmen are there because a majority voted for them

A lot of people worry about the CHR funding removal. They believe that the Congressmen were flexing their muscles in a power-tripping exercise. People say that the Administration wants to send a clear message – that they can do ANYTHING. People say that this is a well-planned effort which includes the filing of impeachment complaints against Andy Bautista (COMELEC) and Justice Sereno (SC). People believe that this is the way to make Duterte just like Marcos and allow him to rule the country for years to come.

I don’t know how true this is. I won’t even go there. But whatever happens, it was not possible without our own participation (or non-participation).

I do know this. Our congressmen are there because a majority voted them into office. Congressmen only have three (3) years to serve, and election year is coming. They need to suck up to get major support for their campaigns so that you would vote them again.

election year is coming…

One last thing. It’s not just the CHR with a P1,000.00 budget

There are three government offices whose budgets were decreased to P1,000.00. Congress decreased their budget because these three agencies allegedly performed very poorly. The two other agencies I refer to are the Energy Regulatory Board (ERC) and the National Commission on Indigenous Peoples (NCIP).

Unlike the CHR, the ERC and the NCIP are creations of the Legislature. Hence Congress can juggle their budget and personnel at will. These personnel are still entitled to their salaries, benefits, and tenure, but they can be placed into other agencies. So it is possible for those agencies to have a P1,000.00 budget since the people can be shifted around, and their functions legislated elsewhere .

That’s not true with regard to the CHR. The government cannot just juggle their employment because they are independent.

And that’s why I’m not so concerned about the CHR. I’m more concerned about the people who voted the congressmen. And I’m a lot more concerned about the NCIP. But that’s for another article.

It's not Uber yet: LTFRB lacks basis for fines against Uber and Grab

It’s not Uber yet: LTFRB lacks basis for fines against Uber and Grab

In the past few weeks, we saw Uber and Grab get fined P5,000,000.00 each. The LTFRB hit them with this fine because they disobeyed an order to suspend acceptance of applications for private cars to join their transportation app network and become a TNVS (transportation network vehicle service).

About two weeks ago, Uber was again hit with a penalty – this time a 30-day suspension. But in the late afternoon of Friday, the LTRFB issued a new order. This time, it was informing Uber that it could cut short its suspension upon payment of the amount of P190,000,000.00 penalty. Uber had 19 more days’ suspension – so that’s a penalty of P10,000,000.00 per day including weekends, holidays, and stormy days.

Here is a question several lawyers are asking while scratching their heads:

How in the world did they come up with these fines? From what existing law or issuance? Uber’s all-new, revised, converted penalty of P190,000,000.00 has  no legal basis or precedent either in administrative law or criminal law. Nothing in our law books ever allowed a converted penal sanction.

After weeks of reading going through literally (yes, literally) every department issuance since 2012 to the present, I can tell everyone that I cannot find any legal ground for the penalty imposed on Grab and Uber. I also went through several circulars issued between 2003-2005. In fact, I wanted to go as far back as 1997, but no such regulations were available, and I found out after much searching and cross-referencing that the particular 1997 department order I was looking for did not contain anything that could serve as the basis for those ridiculously large amounts.

Let’s talk about the basis for the punishment. Right now, Uber and Grab are considered by the LTFRB as common carriers.

Is there a legal basis for punishing common carriers? YES, there is. Is there a structure or schedule of penalty fees or description of other penalties other than fines? YES, there is. Has this schedule of penalties been properly published in the newspapers and in the Office of the National Administrative Register (ONAR)? YES, it has. And in fact, there are multiple schedules of penalties, all of which have been published in the ONAR. Are the penalties against Uber and Grab in accordance with these penalties? NO, they are not. Are the penalties against Uber and Grab published in the ONAR? NO, they are not.

What does this mean?

It means that there is absolutely no legal basis for those penalties.

The only legal bases for LTRFB penalties will show you a range between P5,000.00 for the first offense, P10,000.00 for a second offense, and P15,000.00 for a third offense. There are also other penalties in the amounts of P50,000.00, P75,000.00, P100,000.00, and P200,000.00 for various offenses. And that’s about it. Any who doubt me can research this for themselves. I’ll even make it easier by providing three links:

 

(1) The LTO website where you will find Joint Administrative Order No. 2014-01 entitled, “Revised schedule of fines and penalties for violations of laws, rules and regulations Governing Land Transportations”

(2) The LTFRB website also where you will find the same JAO, Joint Administrative Order No. 2014-01 entitled, “Revised schedule of fines and penalties for violations of laws, rules and regulations Governing Land Transportations”

(3) The official list of LTFRB fines and penalties published in previous issuances.

 

People might note that these penalties were published before Uber and Grab placed themselves under LTFRB regulation. That is true, but these provisions apply to common carriers. If they are considered common carriers, then these provisions apply.

People may also note that there seems to be no punishment for what Uber and Grab did. If you are one of those people, then CONGRATULATIONS!!! You now know exactly why the penalty has no legal basis. It is because there is no monetary penalty provided at all in any law or issuance governing Uber and Grab.

Uber and Grab cannot be penalized with those ridiculous amounts. It was something the LTFRB all of a sudden made up and imposed on them. You’ll note in the interviews of two particular LTFRB officials after imposing those fines that they cited no legal basis in coming up with it. Not even their Order gives the legal provisions they used as the basis for the fines.

With regard to the P190,000,000.00 fine against Uber, an official who was interviewed also did not give any legal basis for the penalty, but admitted instead that the amount was based on how much money Uber was allegedly making. Hello??? There is no law in the Philippines on common carriers that give penalties that are dependent on how much money a company is making. Neither is there any rule or regulation to that effect.

If a rule or regulation imposing a penalty is not published in the ONAR, it cannot be imposed on anyone.

Under the Philippine law a penalty may only be imposed if it is written in a law. If the law requires an administrative agency to prescribe implementing rules, regulations, and penalties, then the Administrative Code provides that a person may only be penalized under those rules and regulations if it has been published in the ONAR at the UP Law Center. In the case of the LTRFB, ALL of those it regulates are governed by implementing rules and regulations. This means that there is NO PENALTY that can be imposed on any regulated persons UNTIL the implementing rule is published in the ONAR.

In the case of Uber and Grab, there is no such law or implementing rule published in the ONAR. Hence, this punishment is outside the law. It is illegal and arbitrary.

Laws and implementing rules and regulations give notice to all parties as to what each others’ obligations and rights are, as well as any penalties when one violates those rights. If there is no law or regulation, then there can be no penalty imposed on a person because none of the parties would be properly informed. In legalspeak, this is called a denial of due process.

We must realize that regulation is not just for the benefit of the commuter. It is also for the benefit of the app owner, the small business owner who owns the cars, the drivers, and even the government.

In case of the government, it keeps the officials from becoming corrupt or abusive. By providing standards or set amounts for penalties, a lot of discretion is taken away from a government official which would remove much temptation to profit by giving lower or higher penalties to those he favors or disfavors, depending on the circumstances. It is for the benefit of the commuter because the government can regulate the service provider to ensure their safety and convenience. It protects the app and business owners by ensuring that they know what are allowed and not allowed, so their actions may be guided accordingly.

Without those rules, the government can act however it wishes and destroy an industry to favor another.

Does the LTRFB really know what it is doing? Or worse… does it know exactly what it is doing and maliciously punishing Uber and Grab with the intent of running their business to the ground? We hear reputable media outlets citing LTFRB Chief Martin Delgra say that he wants more taxis on Metro Manila roads despite knowing the abuses of taxi drivers, and in face of the admission of the taxi lobby that these abuses are prevalent. It is hard not to put these incidences together without scratching your head after.

Uber Driver

The Unconstitutional Punishment of Uber Philippines

The punishment issued against Uber Philippines is unconstitutional. It is highly oppressive because it punishes not just Uber itself, but its partners, none of whom are at fault in any way. It tramples on the rights of innocent parties. The punishment is not reasonable in that it harms those who are not even part of this controversy. It robs people of the constitutionally protected right to make a living.

What happened?

More than a year back, the LTFRB sent Uber and Grab a suspension order to stop accrediting drivers for their respective apps. This was because the LTFRB couldn’t figure out how to regulate them properly because the technology and their business model is far beyond their understanding. But a year later, the government agency still had not figured out what to do about the transportation network companies (TNC). In the meantime, both companies ignored the very unreasonable order and continued to accredit vehicles under their app.

The LTFRB decided that Uber and Grab should stop all operations because they violated the suspension order. But because of public outcry, they decided instead to allow Uber and Grab to just pay a fine of five million pesos each, and gave a condition that they would not any more applications until the LTFRB figured things out for itself in an unspecified period which could be any time between three days and three decades.

But Uber decided to violate this condition. It admitted to accrediting new applications.

Because of this, the LTFRB ordered Uber to stop all operations of its app. Uber filed a Motion for Reconsideration. But on the same day, the LTFRB came out with one of the fastest decisions ever made in the Philippine legal world when it denied the motion within a few hours after its filing.

What’s the status?


Uber has stopped operations. The suspension lasts for a month. And along with the stoppage of operations of Uber, we also have the stoppage of operations of its partner transportation network vehicles (TNVS).

The TNVS cannot operate without the Uber  app. That’s one of the restrictions of a TNVS franchise. So without the app, the TNVS cannot do business. They cannot earn.

What’s wrong with the punishment? Isn’t this the fault of Uber?

I think that this is not the fault of Uber. But other people can debate me, and they have valid points. So let’s not talk about whether or not Uber is at fault. Let’s assume that there is fault.

Let’s talk about the punishment that the LTFRB imposed not just on Uber, but on all other business owners who need the Uber  app to work.

The punishment goes against constitutional limits on the exercise of the LTFRB’s police power.

What are the constitutional limits of the LTFRB’s exercise of police power?

LTFRB has the power to punish those who violate its rules and regulations. The power to punish is part of what lawyers know as “police power.” It is the power of the government to regulate behavior and enforce order for the good of its people.

The Supreme Court declared that the exercise of the state’s police power is valid only if the following requirements are met: (1) the interests of the public require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.

Let’s take the first requirement. Do the interests of the public require the stoppage of the Uber  app? No. It is the opposite – the app should be allowed to function because the riding public has need for it. It also reduces traffic because commuters who have cars would use Uber instead. Most people use the car pooling service, which means that people could share a car instead of taking separate taxis or cars. The app allows people to be picked up with certainty, instead of having to beg and negotiate with taxis to bring them to their destinations during rush hour.

The app also assures the government that it would get its share of income tax and percentage tax payments by providing a paper trail. A taxi company would not give that assurance. Even the taxi lobby admit that drivers negotiate terms of payment different from that in its meter all the time. How much of that will the government receive? Probably none. And how many time’s have you ridden on a taxi which did not issue you a receipt when you ask for one? I’ve ridden several. The BIR will not get any of that money. They won’t  have a paper trail to track it.

More importantly, the small business owners who quit their jobs, used their savings, or just took control of their destiny by making a car purchase so they could change their lives, etc., — these people need the Uber  app to earn enough to pay off their loans and mortgages.

The LTFRB is wrong in punishing Uber  with complete stoppage of the app because it does not benefit the public in any way. The only benefit is to the taxi companies who are probably rejoicing at this turn of events.

This suspension can cause drivers and car owners to lose their earning capacity for a month. They would need to find work that they would not be able to leave. They may miss payments on their cars. They may just decide to quit because they saw that the powers that be will make this life for them uncertain

As we can see, the government and the public (except taxi companies) lose if Uber is punished this way. The punishment is against public interest. On that point alone, the punishment can already be considered unconstitutional.

But let’s go deeper.

THE PUNISHMENT OVERSTEPS CONSTITUTIONAL LIMITS ON THE EXERCISE OF THE LTFRB’S POLICE POWER.

The second requirement of police power is that it should be exercised in a way that is “reasonably necessary” to accomplish the objective of the regulation and that it should not be “oppressive to individuals.”

Will the suspension accomplish the objective of regulation?

The objective of the regulation is to ensure the riding safety of the public. Now tell me… will suspension of a service that is more convenient and much safer than taxis accomplish the objective of ensuring riding safety? Hello?!

 “…not unduly oppressive upon individuals.”

The suspension should not be oppressive to individuals. But when the LTFRB suspends Uber, it completely removes the earning capacity of thousands of small business owners.

In the course of my encounters with Uber drivers, I’ve met OFWs who decided to use their earnings to take out a loan for a car and drive it as a TNVS instead of going back to the middle east. Their families were quite happy to have fathers again. How about the former security guard that drives now? He works more hours, but is happier because he’s learning how to be a businessman, not just an employee, and he’ll soon make enough to take out another loan for a new car. What happens to them? How many dreams will this LTFRB punishment trample on?

Don’t you think that’s oppressive? The small people are ultimately the ones being punished. Within a month, Uber will be back on its feet. How about them? The small people?

I realized that when people talk about Uber, they only think about the company, not the drivers and business owners who depend on the network. They are quick to condemn it and say that Uber deserved the suspension. Well, how about those that depend on the Uber  app for livelihood? The government allowed them to earn a livelihood, but without any fault on their part, the government takes it away. And about the riders who rely on the convenience, service, and safety of Uber?

Only the guilty should be punished.

People say, so what? It’s part of business? Collateral damage? They could afford a car, so they’re better off than beggars? They’ll survive?

In the first place, if the punishment is correct and suitable for the offense, these people should not even have to worry.

That is the biggest reason why the LTFRB’s suspension order is unconstitutional. It punishes the innocent. It punishes those who are only part of the case because they are dependent of Uber’s app. They cannot work without Uber’s app because that’s one of the requirements of the LTFRB itself for them to work as a TNVS.

It is a principle of law and an orderly society that only the guilty should be punished. The punishment should be narrowly tailored to ensure that no others would be hurt. The LTFRB has other options to punish Uber. It could impose another large fine, for example.

The LTFRB might say that under the regulations on TNCs and TNVS, the punishment stated is removal of accreditation. And that’s exactly what they are doing.

The LTFRB is correct in this. But that’s why I’ve always been saying that the regulation cannot be done under the current law. The punishment there is suitable for a DIFFERENT economic and business model, not what Uber and Grab have. The regulations are not up to date with technology. I’ll write about this another day because that issue is even more complex than this.

Anyway, as shown before, the LTFRB can fine Uber.

But the LTFRB also needs to sit down, think, and make a jurisdiction check. It should determine if it has the proper background and capability to regulate an app, or if it should defer to the real government agency that handles information technology – the Department of Information and Communication Technology (DICT).

The LTFRB forgets that an app is not a common carrier. It just has the same function as a bulletin board service. Otherwise, it should start regulating my condo bulletin board for the “Van for Hire” posters I see there.

By suspending operations, the government is taking the livelihood of small business owners without any proceeding.

Wait? Isn’t that in the constitution? Yes it is, but it’s worded in legalese. What we usually hear is, “No person shall be deprived of property without due process of law.”

The Supreme Court declared a number of times that the right to engage in a profession, to work, or to earn a living is a property right, and is protected by that provision in the constitution.

Under the law, the government can only take away the right to earn a living if there is a case made specifically against the person. The person should have notice, be called to a hearing, and be given the opportunity to explain or justify why he should be allowed to keep his right to earn.

The LTFRB allowed existing Uber TNVS to earn their livelihood. That much is clear. Have any proceedings been filed against EACH of the TNVS before their means of livelihood was taken away? No.

Then that means that their livelihood cannot be taken away by the government. YES, it’s that simple.

When the LTFRB takes away the Uber app, that is the effect.

But wait! The TNC and TNVS regulation allows the LTFRB to remove Uber’s accreditation. That means that the TNVS under Uber are already put on notice that anything that happens to their app company would have an effect on them, right?  No. The relationship between the LTFRB, the app owner, and the car owner are different and separate from each other.

The agreement between Uber is separate from the agreement between the small business owners who own the TNVS. That means that the TNVS deserve the usual requirements of due process before they can be stripped of their right to earn. The LTFRB cannot just remove Uber because they themselves had already created a class of persons dependent on it. Suspending Uber would mean suspending these class of persons. In the legal world, that’s illegal. It’s unconstitutional.

And this is exactly why the Uber app should not be regulated by the LTFRB. It won’t fit into any box the LTFRB can competently regulate. It is a completely different animal from another world. A different box should be designed to house it. That requires either a new law, or a different regulatory body.