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Monday, April 29, 2013

MAY THE DOLE SECRETARY DETERMINE THE EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP?


IN THE EXERCISE OF ITS VISITORIAL AND ENFORCEMENT POWERS, MAY THE DOLE DETERMINE THE EXISTENCE OF AN EMPLOYER-EMPLOYEE RELATIONSHIP TO THE EXLCUSION OF THE NLRC?

Yes.  Under Art. 128(b) of the Labor Code, as amended by RA 7730, the DOLE is fully empowered to make a determination as to the existence of an employer-employee relationship in the exercise of its expanded visitorial and enforcement power. And this determination by the DOLE of the existence of an employer-employee relationship is not merely provisional or subordinate to the NLRC’s determination. When the DOLE finds the existence of such relationship, the same is not even subject to NLRC’s review. Instead, DOLE’s determination is directly subject to judicial review. However, it bears emphasis that if the DOLE finds that no such relationship exists or the same has been terminated, jurisdiction is with the NLRC. 

In its Resolution PEOPLE’S BROADCASTING SERVICE (BOMBO RADYOPHILS., INC.) vs. SECRETARY OF DOLE, G.R. No. 179652, March 6, 2012, the Supreme Court, en banc, modified its earlier decision as follows:

The prior decision of this Court in the present case accepts such answer, but places a limitation upon the power of the DOLE, that is, the determination of the existence of an employer-employee relationship cannot be co-extensive with the visitorial and enforcement power of the DOLE.  But even in conceding the power of the DOLE to determine the existence of an employer-employee relationship, the Court held that the determination of the existence of an employer-employee relationship is still primarily within the power of the NLRC, that any finding by the DOLE is merely preliminary.

This conclusion must be revisited.

No limitation in the law was placed upon the power of the DOLE to determine the existence of an employer-employee relationship.  No procedure was laid down where the DOLE would only make a preliminary finding, that the power was primarily held by the NLRC.  The law did not say that the DOLE would first seek the NLRC’s determination of the existence of an employer-employee relationship, or that should the existence of the employer-employee relationship be disputed, the DOLE would refer the matter to the NLRC.  The DOLE must have the power to determine whether or not an employer-employee relationship exists, and from there to decide whether or not to issue compliance orders in accordance with Art. 128(b) of the Labor Code, as amended by RA 7730.xxx

xxx The determination of the existence of an employer-employee relationship by the DOLE must be respected.  The expanded visitorial and enforcement power of the DOLE granted by RA 7730 would be rendered nugatory if the alleged employer could, by the simple expedient of disputing the employer-employee relationship, force the referral of the matter to the NLRC.  The Court issued the declaration that at least a prima facie showing of the absence of an employer-employee relationship be made to oust the DOLE of jurisdiction.  But it is precisely the DOLE that will be faced with that evidence, and it is the DOLE that will weigh it, to see if the same does successfully refute the existence of an employer-employee relationship.
If the DOLE makes a finding that there is an existing employer-employee relationship, it takes cognizance of the matter, to the exclusion of the NLRC.  The DOLE would have no jurisdiction only if the employer-employee relationship has already been terminated, or it appears, upon review, that no employer-employee relationship existed in the first place. 
The Court, in limiting the power of the DOLE, gave the rationale that such limitation would eliminate the prospect of competing conclusions between the DOLE and the NLRC.  The prospect of competing conclusions could just as well have been eliminated by according respect to the DOLE findings, to the exclusion of the NLRC, and this We believe is the more prudent course of action to take.
This is not to say that the determination by the DOLE is beyond question or review.  Suffice it to say, there are judicial remedies such as a petition for certiorari under Rule 65 that may be availed of, should a party wish to dispute the findings of the DOLE.
It must also be remembered that the power of the DOLE to determine the existence of an employer-employee relationship need not necessarily result in an affirmative finding.  The DOLE may well make the determination that no employer-employee relationship exists, thus divesting itself of jurisdiction over the case.  It must not be precluded from being able to reach its own conclusions, not by the parties, and certainly not by this Court.

As summarized by the Supreme Court, the following are the rules regarding the jurisdiction of the DOLE, NLRC and Labor Arbiter:

To recapitulate, if a complaint is brought before the DOLE to give effect to the labor standards provisions of the Labor Code or other labor legislation, and there is a finding by the DOLE that there is an existing employer-employee relationship, the DOLE exercises jurisdiction to the exclusion of the NLRC.  If the DOLE finds that there is no employer-employee relationship, the jurisdiction is properly with the NLRC.  If a complaint is filed with the DOLE, and it is accompanied by a claim for reinstatement, the jurisdiction is properly with the Labor Arbiter, under Art. 217(3) of the Labor Code, which provides that the Labor Arbiter has original and exclusive jurisdiction over those cases involving wages, rates of pay, hours of work, and other terms and conditions of employment, if accompanied by a claim for reinstatement. If a complaint is filed with the NLRC, and there is still an existing employer-employee relationship, the jurisdiction is properly with the DOLE.  The findings of the DOLE, however, may still be questioned through a petition for certiorari under Rule 65 of the Rules of Court.








Thursday, April 25, 2013

CAN DUAL CITIZENS RESIDING ABROAD VOTE?


Can former natural-born Filipino citizens who have retained and/or reacquired their status as such citizens pursuant to Republic Act  No. 9225 or the Citizenship Retention and Re‑Acquisition Act of 2003 vote despite the fact that they are not actual residents of the Philippines?

Yes, they can vote through the absentee voting scheme and as overseas absentee voters pursuant to R.A. 9189 or the Overseas Absentee Voting Law. 

The Supreme Court had the occasion to rule on this matter in the case of Nicolas-Lewisv. COMELEC, G.R. No. 162759, August 4, 2006. The relevant portions of the decision are as follows:

OCTOBER 2013 BAR EXAMS ANNOUNCEMENTS


The Supreme Court has already issued several bulletins regarding the conduct of Bar Exams on October 2013. 


BAR BULLETIN NO. 1
Office of the Bar Confidant
Supreme Court of the Philippines


1. Bar Exam Venue: University of Sto. Tomas, Espana, Manila

2. Examination Dates: Four Sundays of October 2013:
October 6:
October 13:
October 20:
October 27:
8 a.m. - 12 noon - Political Law
2 p.m. - 6 p.m. - Labor Law
8 a.m. - 12 noon - Civil Law
2 p.m. - 6 p.m. - Taxation
8 a.m. - 12 noon - Commercial Law
2 p.m. - 6 p.m. - Criminal Law
8 a.m. - 12 noon - Remedial Law
2 p.m. - 6 p.m - Legal Ethics

3. Coverage: Questions shall strictly fall within the defined Syllabus for every subject. The Syllabi shall be released through a Bar Bulletin or before December 31, 2012. The cut-off for Supreme Court decisions covered by the 2013 Bar Examinations shall be January 31, 2013.

4. Exam Structure and Format of Questions

a. The Examination shall consist of 20% Multiple Choice Questions (MCQ) and 80% Essay-type questions.

b. Whether MCQ or essay, the questions shall be based on a given set of facts, presented as briefly but as clearly and completely as possible, taking into account that every examinee needs reading, understanding, consideration of the applicable law, and answering time for every question.

The whole examination should be answerable by the average bar examinee within 3 .5 hours (21 0 minutes) to allow him or her 30 minutes of review time.

c. The basic elements of problem solving that the Examiners shall particularly look for are: the examinee's (1) proper understanding and appreciation ofthefacts, particularly of the components or details that can be material in resolving the given problem; (2) his or her appreciation of the applicable /awls that may come into play; (3) recognition of the issues posed; and the ( 4) resolution of the issues through the analysis and application of the law to the given facts. The examinee's presentation and articulation of his or her answer shall also be given weight.

d. The 20% MCQ portion of the examination shall be divided into 4 or 5 main fact situations from which the MCQ questions shall be asked.

The 80% essay portion of the exam shall be divided into eight (8) divisions of ten (10) points each, with a maximum of two facts per division from which question shall be drawn. The corresponding weight of each question shall properly be indicated in the questionnaire, together with estimated answering time, to allow the examinee proper allotment of his or her exam time.



          

Wednesday, April 24, 2013

ORAL ARGUMENTS BEFORE THE COURTS OF LAW


A QUICK GUIDE TO ORAL ARGUMENTS; HISTORY AND LEGAL BASIS
By: Jay B. Rempillo and Anna Katrina M. Martinez


Deriving its lineage from a borrowed tradition, the practice of hearing cases on “Oral Argument” before the Supreme Court is an important though largely unappreciated and misunderstood process.

The practice of hearing oral argument is taken from the Supreme Court of the United States (SCOTUS), which hears arguments starting the first Monday in October—typically two one-hour arguments a day—on Mondays, Tuesdays and Wednesdays in two-week intervals until late April (with breaks in between).1 Rule 4 of the Rules of the Supreme Court of the United States provides that “(u)nless it orders otherwise, the Court sits to hear arguments from 10 a.m. until noon and from 1 p.m. until 3 p.m.”  Oral argument is governed by Rule 28.2

Unlike the  SCOTUS, there is no clear-cut definition yet of “Oral Argument” in Philippine law books. The Philippine Legal Encyclopedia defines “Oral” and “Argument” separately: “Oral” as “by speech or word of mouth, as contrasted with writing,” and “Argument” as “a reason advanced to prove a point or to persuade a person.” The closest definition, however, is that found in Black’s Law Dictionary which defines “Oral Argument” as “statements that are given orally by an attorney, either in defense of a client or to rebut the opposing party’s statements.”

Retired Chief Justice Artemio V. Panganiban, in one of his books aptly titled Battles in the Supreme Court, wrote: “Oral arguments, which are rare, are usually held only in cases involving difficult and complicated questions.” The former Chief Justice said that the Court delineates the issues; and the lawyers for each side, who are expected to come extensively prepared, dwell on these issues within the allotted time.  However, members of the Court may, and usually do, ask questions on any topic, issue or matter.  Hence, the allotted time is usually extended. The lawyers are usually required to follow up and close their cases with the filing of written memoranda after the oral arguments.



Sunday, April 21, 2013

IS THE PRESIDENTIAL ELECTORAL TRIBUNAL SEPARATE FROM THE SUPREME COURT?


In an irritated and annoyed tone, the Supreme Court dismissed an unlabelled petition filed by election lawyer Atty. Romulo Macalintal assailing the legality of the organization and operation of the Presidential Electoral Tribunal (PET) as a tribunal separate from the Supreme Court. According to Atty. Macalintal, the operation of the PET as a distinct body with separate budget allocation, own seal, a set of staff and confidential employees violates Section 4, Article VII of the Constitution which provides that “the Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.” Atty. Macalintal argues that the PET, under the circumstances it is being operated, is an illegal and unauthorized progeny of the role of the Supreme Court, en banc, as the sole election judge relative the presidential and vice-presidential contests. 


The pertinent parts of the decision are quoted as follows:



xxx Petitioner, a prominent election lawyer who has filed several cases before this Court involving constitutional and election law issues, including, among others, the constitutionality of certain provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003), cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework affirmed in Tecson v. Commission on Elections is that the Supreme Court has original jurisdiction to decide presidential and vice-presidential election protests while concurrently acting as an independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does not authorize the constitution of the PET. And although he concedes that the Supreme Court may promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for the purpose, notwithstanding the silence of the constitutional provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive. Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of constitutional construction.xxx

xxx Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and then emphasized that the sole power ought to be without intervention by the legislative department. Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-presidential election contests and our rule-making power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET in our country cannot be denied.xxx

xxx It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. In the landmark case of Angara v. Electoral Commission, Justice Jose P. Laurel enucleated that "it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction with latter’s exercise of judicial power inherent in all courts, the task of deciding presidential and vice-presidential election contests, with full authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but, nevertheless, distinct line between the PET and the Supreme Court.xxx

xxx We have previously declared that the PET is not simply an agency to which Members of the Court were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an institution independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v. State of Maryland proclaimed that "[a] power without the means to use it, is a nullity." The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned by the Constitutional Commissioners during the discussions on the grant of power to this Court, is the PET. Thus, a microscopic view, like the petitioner’s, should not constrict an absolute and constitutional grant of judicial power.  (ATTY. MACALINTAL vs. PRESIDENTIAL ELECTORAL TRIBUNAL, G.R. No. 191618, November 23, 2010)

WHO IS RUNNING THE ELECTIONS? (THE COMELEC or SUPREME COURT?)


Question: Who is running the elections?

Answer: The Commission on Elections.

Wrong. It is the Supreme Court.

At least that’s how it appears to us.The Constitution says election matters are the domain of the Comelec. It is supposed to be the expert in elections. But lately, the Supreme Court has been arrogating unto itself important policy matters on elections, and Comelec Chair Sixto Brillantes is understandably so frustrated and flabbergasted that he is on the verge of resigning.

“Who’s running the elections?” he asked. “Is it the Comelec or the Supreme Court?”Why shouldn’t he be discouraged and disappointed when in the last couple of months the high court reversed four Comelec decisions on crucial poll issues?

Last March 5, the high court issued a temporary restraining order (TRO) on a Comelec letter ordering the Diocese of Bacolod to remove its oversized tarpaulin identifying “Team Patay” and “Team Buhay” senatorial candidates to guide its flock on who to vote for or to reject. 

Then just last week, the high court issued a status quo ante (SQA) order on a Comelec decision disqualifying some party-list groups. (An SQA orders litigants to go back to the situation before the assailed order was given.) It ordered the Comelec to look once more at the qualifications of the party-list groups seeking accreditation. Meaning, until the Comelec finishes looking at the qualifications of the party-list groups under the new parameters given by the high court, the party-lists already disqualified are back in contention. Can the Comelec finish the job in the few remaining days before the polls?

Tuesday, April 16, 2013

CAN A RESOLUTION BY A LOCAL SANGGUNIAN BE ATTACKED VIA A SPECIAL CIVIL ACTION FOR CERTIORARI?


May a petition for certiorari be sustained to nullify or set aside a resolution passed by a local legislative council merely expressing its sentiment for the expropriation of a private property?


The relevant portions of the decision are quoted as follows:

xxx The petitioners owned a parcel of land with an area of 1,044 square meters situated between Nueve de Febrero Street and Fernandez Street in Barangay Mauway, Mandaluyong City.  Half of their land they used as their residence, and the rest they rented out to nine other families.  Allegedly, the land was their only property and only source of income.

On October 2, 1997, the Sangguniang Panglungsod of Mandaluyong City adopted Resolution No. 552, Series of 1997, to authorize then City Mayor Benjamin S. Abalos, Sr. to take the necessary legal steps for the expropriation of the land of the petitioners for the purpose of developing it for low cost housing for the less privileged but deserving city inhabitants.

xxx Notwithstanding that the enactment of Resolution No. 552 was but the initial step in the City’s exercise of its power of eminent domain granted under Section 19 of the Local Government Code of 1991, the petitioners became alarmed, and filed a petition for certiorari and prohibition in the RTC, praying for the annulment of Resolution No. 552 due to its being unconstitutional, confiscatory, improper, and without force and effect.

The City countered that Resolution No. 552 was a mere authorization given to the City Mayor to initiate the legal steps towards expropriation, which included making a definite offer to purchase the property of the petitioners; hence, the suit of the petitioners was premature.xxx

For certiorari to prosper, therefore, the petitioner must allege and establish the concurrence of the following requisites, namely: 
(a) The writ is directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions;
(b) Such tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and
(c) There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.

The first requisite is that the respondent tribunal, board, or officer must be exercising judicial or quasi-judicial functions. Judicial function, according to Bouvier, is the exercise of the judicial faculty or office; it also means the capacity to act in a specific way which appertains to the judicial power, as one of the powers of government. “The term,” Bouvier continues,  “is used to describe generally those modes of action which appertain to the judiciary as a department of organized government, and through and by means of which it accomplishes its purpose and exercises its peculiar powers.”
Based on the foregoing, certiorari did not lie against the Sangguniang Panglungsod, which was not a part of the Judiciary settling an actual controversy involving legally demandable and enforceable rights when it adopted Resolution No. 552, but a legislative and policy-making body declaring its sentiment or opinion.

IN TESTAMENTARY SUCCESSION, IS THE TESTATOR PRESUMED TO BE OF SOUND MIND?


It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his will so long as it is legally tenable.

Pursuant to Article 800 of the New Civil Code, every person is presumed to be of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. 

Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of the Will.  Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners.  However and as earlier mentioned, no substantial evidence was presented by them to prove the same, thereby warranting the CA’s finding that petitioners failed to discharge such burden.

Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate proceedings.

xxx Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid down by law.  The signatures of the testatrix, Paciencia, her instrumental witnesses and the notary public, are all present and evident on the Will.  Further, the attestation clause explicitly states the critical requirement that the testatrix and her instrumental witnesses signed the Will in the presence of one another and that the witnesses attested and subscribed to the Will in the presence of the testator and of one another.  In fact, even the petitioners acceded that the signature of Paciencia in the Will may be authentic although they question her state of mind when she signed the same as well as the voluntary nature of said act. xxx (BALTAZAR vs. LAXA, G.R. No.174489, April 11, 2012)

Monday, April 15, 2013

IS THE EMPLOYEE REQUIRED TO DISPROVE PAYMENT OF BENEFITS DUE HIM?


It is not for an employee to prove non-payment of benefits to which he is entitled by law. Rather, it is on the employer that the burden of proving payment of these claims rests.

SCII (employer) presented payroll listings and transmittal letters to the bank to show that Canoy and Pigcaulan (employees) received their salaries as well as benefits which it claimed are already integrated in the employees’ monthly salaries. However, the documents presented do not prove SCII’s allegation.  SCII failed to show any other concrete proof by means of records, pertinent files or similar documents reflecting that the specific claims have been paid.  With respect to 13th month pay, SCII presented proof that this benefit was paid but only for the years 1998 and 1999.  To repeat, the burden of proving payment of these monetary claims rests on SCII, being the employer.  It is a rule that one who pleads payment has the burden of proving it.  “Even when the plaintiff alleges non-payment, still the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove non-payment.” Since SCII failed to provide convincing proof that it has already settled the claims, Pigcaulan should be paid his holiday pay, service incentive leave benefits and proportionate 13th month pay for the year 2000. (ABDULJUAHID R. PIGCAULAN  vs. SECURITY  and CREDIT INVESTIGATION,INC., G.R. No. 173648, January 16, 2012)



Sunday, April 07, 2013

SUPREME COURT: PARTY-LIST SYSTEM IS NOT LIMITED TO THE MARGINALIZED


In its decision dated April 2, 2013, the Supreme Court has abandoned its previous rulings that the party-list system is limited to the marginalized and underrepresented sectors, and that major political parties are not eligible to field their candidates under said system.

With the new decision, the Supreme Court has emphasized that based on the express provision of the Constitution and as can be culled from the records of the Constitutional convention, the party-list system is not meant to be exclusively for sectoral parties or organizations representing marginalized and underrepresented sectors but also for non-sectoral or political parties or organizations.

Moreover, the High Court also clarified that the sectoral parties or organizations are not limited to “marginalized and underrepresented sectors”  like labor, peasant, fisherfolk, urban poor, indigenous cultural communities, but also to sectors which are lacking of “well-defined political constituencies” like the elderly, handicapped, women, youth, veterans, overseas workers, and professionals. These sectors are all expressly mentioned in Republic Act 7941 or the Party-List System Act.

The Supreme Court also underscored that even major political parties (i.e. those that have been fielding candidates and winning in regular legislative district elections) are qualified to field their candidates under the party-list system as long as they do it through their “sectoral wings”.

The salient pronouncements in the High Court’s decision as summarized therein are quoted as follows:

1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector.

3. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in partylist elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “well-defined political constituencies.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas 62 Rule 64 in relation to Rule 65, 1997 Rules of Civil Procedure.workers. The sectors that lack “well-defined political constituencies” include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. The nominees of sectoral parties or rganizations that represent the “marginalized and underrepresented,” or that represent  those who lack “well-defined political constituencies,” either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.

Read the full decision here: ATONG PAGLAUM, INC. vs. COMELEC G.R. No. 203766, April 2, 2013

Friday, April 05, 2013

CAN PUBLIC ACCESS TO SALN BE DENIED?


The Supreme Court has addressed the matter of SALN disclosure when it was itself confronted with numerous requests for the copies of the Statement of Assets, Liabilities and Networth (SALN) of its own Justices. Significantly, the requests for the SALN were made as early as 2009 but the decision only came out in June 2012 about a month after the Senate impeachment court ruled against Chief Justice Renato Corona which involved, among others, issues on his SALN.

In its Decision, the Supreme Court allowed the disclosure or public access to the SALN of its Justices in keeping with the constitutional right of the people on matters of public concern. According to the Court, while the inspection, examination or copying of the SALNs is subject to regulation, access per se to such documents cannot be altogether deprived. The disclosure of the SALN is not discretionary but mandatory on the part of the public officers concerned.

The pertinent part of the Decision is quoted as follows:

Corollary to the above pronouncements, Section 7, Article III of the Constitution is relevant in the issue of public disclosure of SALN and other documents of public officials, viz

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 

Emphasizing the import and meaning of the foregoing constitutional provision, the Court, in the landmark case of Valmonte v. Belmonte, Jr., elucidated on the import of the right to information in this wise:

          The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office is a public trust, institutionalized in the Constitution to protect the people from abuse of governmental power, would certainly be mere empty words if access to such information of public concern is denied x x x. 

            x x x The right to information goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government. (Emphases supplied)
 In Baldoza v. Dimaano, the importance of the said right was pragmatically explicated:

The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy.  There can be no realistic perception by the public of the nation’s problems, nor a meaningful democratic decision-making if they are denied access to information of general interest.  Information is needed to enable the members of society to cope with the exigencies of the times.  As has been aptly observed: “Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases.” However, restrictions on access to certain records may be imposed by law. 

Thus, while “public concern” like “public interest” eludes exact definition and has been said to embrace a broad spectrum of subjects which the public may want to know, either because such matters directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen, the Constitution itself, under Section 17, Article XI, has classified the information disclosed in the SALN as a matter of public concern and interest.  In other words, a “duty to disclose” sprang from the “right to know.”  Both of constitutional origin, the former is a command while the latter is a permission.  Hence, the duty on the part of members of the government to disclose their SALNs to the public in the manner provided by law:

 Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. [Emphasis supplied]
This Constitutional duty is echoed and particularized in a statutory creation of Congress: Republic Act No. 6713, also known as "Code of Conduct and Ethical Standards for Public Officials and Employees": 
            Section 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.
            (A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.
            The two documents shall contain information on the following:
            (a) real property, its improvements, acquisition costs, assessed value and current fair     market value;
            (b) personal property and acquisition cost;
   (c) all other assets such as investments, cash on hand or in banks,                                     stocks, bonds, and    the like;
            (d) liabilities, and;
            (e) all business interests and financial connections.
            The documents must be filed:
            (a) within thirty (30) days after assumption of office;
            (b) on or before April 30, of every year thereafter; and
            (c) within thirty (30) days after separation from the service. 
            All public officials and employees required under this section to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government.
            Husband and wife who are both public officials or employees may file the required statements jointly or separately.
            The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests and Financial Connections shall be filed by:
            (1) Constitutional and national elective officials, with the national office of the Ombudsman;
            (2) Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator; and all national executive officials with the Office of the President.
            (3) Regional and local officials and employees, with the Deputy Ombudsman in their respective regions;
            (4) Officers of the armed forces from the rank of colonel or naval captain, with the Office of the President, and those below said ranks, with the Deputy Ombudsman in their respective regions; and
            (5) All other public officials and employees, defined in Republic Act No. 3019, as amended, with the Civil Service Commission.
            (B) Identification and disclosure of relatives. - It shall be the duty of every public official or employee to identify and disclose, to the best of his knowledge and information, his relatives in the Government in the form, manner and frequency prescribed by the Civil Service Commission. (Emphasis supplied)
 Like all constitutional guarantees, however, the right to information, with its companion right of access to official records, is not absolute.  While providing guaranty for that right, the Constitution also provides that the people’s right to know is limited to “matters of public concern” and is further subject to such limitations as may be provided by law. 

 Jurisprudence has provided the following limitations to that right:  (1) national security matters and intelligence information; (2) trade secrets and banking transactions; (3) criminal matters; and (4) other confidential information such as confidential or classified information officially known to public officers and employees by reason of their office and not made available to the public as well as diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, and the internal deliberations of the Supreme Court.xxx
xxxx Considering the foregoing legal precepts vis-à-vis the various requests made, the Court finds no cogent reason to deny the public access to the SALN, PDS and CV of the Justices of the Court and other magistrates of the Judiciary subject, of course, to the limitations and prohibitions provided in R.A. No. 6713, its implementing rules and regulations, and in the guidelines set forth in the decretal portion.

The Court notes the valid concerns of the other magistrates regarding the possible illicit motives of some individuals in their requests for access to such personal information and their publication.  However, custodians of public documents must not concern themselves with the motives, reasons and objects of the persons seeking access to the records. The moral or material injury which their misuse might inflict on others is the requestor’s responsibility and lookout. Any publication is made subject to the consequences of the law. While public officers in the custody or control of public records have the discretion to regulate the manner in which records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit access, inspection, examination, or copying of the records. After all, public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.(A.M. No. 09-8-6-SC, June 13, 2012)






Wednesday, April 03, 2013

TERMINATION OF PROBATIONARY EMPLOYEE: REFUSAL TO ATTEND VALUES FORMATION SEMINAR


Interestingly, the Supreme Court, in one recent case, found that refusal to attend the company’s (employer) “Values Formation Seminar” was a sufficient basis to terminate a probationary employee.

The pertinent discussions as embodied in the Decision are quoted as follows:

Dalangin overlooks the fact, wittingly or unwittingly, that he offered glimpses of his own behavior and actuations during his four-week stay with the company; he betrayed his negative attitude and regard for the company, his co-employees and his work.
Dalangin admitted in compulsory arbitration that the proximate cause for his dismissal was his refusal to attend the company’s “Values Formation Seminar” scheduled for October 27, 2001, a Saturday. He refused to attend the seminar after he learned that it had no relation to his duties, as he claimed, and that he had to leave at 2:00 p.m. because he wanted to be with his family in the province.  When Abad insisted that he attend the seminar to encourage his co-employees to attend, he stood pat on not attending, arguing that marked differences exist between their positions and duties, and insinuating that he did not want to join the other employees. He also questioned the scheduled 2:00 p.m. seminars on Saturdays as they were not supposed to be doing a company activity beyond 2:00 p.m. He considers 2:00 p.m. as the close of working hours on Saturdays; thus, holding them beyond 2:00 p.m. would be in violation of the law.
The “Values Formation Seminar” incident is an eye-opener on the kind of person and employee Dalangin was. His refusal to attend the seminar brings into focus and validates what was wrong with him, as Abad narrated in her affidavit[36] and as reflected in the termination of employment memorandum.[37] It highlights his lack of interest in familiarizing himself  with the company’s objectives and policies. Significantly, the seminar involved acquainting and updating the employees with the company’s policies and objectives.  Had he attended the seminar, Dalangin could have broadened his awareness of the company’s policies, in addition to Abad’s briefing him about the company’s policies on punctuality and attendance, and the procedures to be followed in handling the clients’ applications. No wonder the company charged him with obstinacy.
The incident also reveals Dalangin’s lack of interest in establishing good working relationship with his co-employees, especially the rank and file; he did not want to join them because of his view that the seminar was not relevant to his position and duties. It also betrays an arrogant and condescending attitude on his part towards his co-employees, and a lack of support for the company objective that company managers be examples to the rank and file employees. xxx
xxx We, therefore, disagree with the CA that the company could not have fully determined Dalangin’s performance barely one month into his employment. As we said in International Catholic Migration Commission, the probationary term or period denotes its purpose but not its length.  To our mind, four weeks was enough for the company to assess Dalangin’s fitness for the job and he was found wanting. In separating Dalangin from the service before the situation got worse, we find the company not liable for illegal dismissal.xxx




REAL PARTY IN INTEREST: THE CORPORATION AND ITS STOCKHOLDERS


The personality of a corporation is distinct and separate from the personalities of its stockholders. Hence, its stockholders are not themselves the real parties in interest to claim and recover compensation for the damages arising from the wrongful attachment of its assets. Only the corporation is the real party in interest for that purpose.xxx

xxx There is no dispute that the properties subject to the levy on attachment belonged to Arc Cuisine, Inc. alone, not to the Cuencas and Tayactac in their own right. They were only stockholders of Arc Cuisine, Inc., which had a personality distinct and separate from that of any or all of them. The damages occasioned to the properties by the levy on attachment, wrongful or not, prejudiced Arc Cuisine, Inc., not them. As such, only Arc Cuisine, Inc. had the right under the substantive law to claim and recover such damages. This right could not also be asserted by the Cuencas and Tayactac unless they did so in the name of the corporation itself. But that did not happen herein, because Arc Cuisine, Inc. was not even joined in the action either as an original party or as an intervenor. The Cuencas and Tayactac were clearly not vested with any direct interest in the personal properties coming under the levy on attachment by virtue alone of their being stockholders in Arc Cuisine, Inc. Their stockholdings represented only their proportionate or aliquot interest in the properties of the corporation, but did not vest in them any legal right or title to any specific properties of the corporation. Without doubt, Arc Cuisine, Inc. remained the owner as a distinct legal person.

Given the separate and distinct legal personality of Arc Cuisine, Inc., the Cuencas and Tayactac lacked the legal personality to claim the damages sustained from the levy of the former’s properties. According to Asset Privatization Trust v. Court of Appeals, even when the foreclosure on the assets of the corporation was wrongful and done in bad faith the stockholders had no standing to recover for themselves moral damages; otherwise, they would be appropriating and distributing part of the corporation’s assets prior to the dissolution of the corporation and the liquidation of its debts and liabilities.xxx (StrongholdInsurance Company, Inc. Vs.Tomas Cuenca, et al., G.R. No. 173297. March 6, 2013)

DISQUS