Tuesday, August 31, 2010

Legal Mandates of the NAPOLCOM

The National Police Commission (NAPOLCOM) derives its mandate from the 1987 Philippine Constitution. It is thus believed that the Philippine Constitution is the fundamental, paramount, and supreme law of the land. It is a fundamental principle of constitutional construction to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves.

Under Section 6, Article XVI, of the present Constitution, it provides that, “the State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.”

This, however, implies that the Commission shall continue to exercise administration and control over the Philippine National Police (PNP) as long as there is no constitutional amendment in this regard.

In fact, a Peace and Order Council has been enacted in 1987 and 1988 to secure and safeguard the citizens through the Executive Order No 320 Amending E.O. No. 309, entitled “Reorganizing the Peace and Order Council”

As part of its milestone, in 1966 the Philippine Congress enacted R.A. No. 4864 or otherwise known as the Police Act of 1966, to provide the foundation for the much needed police reforms in the country. It created the Police Commission (POLCOM) with the aim, “to achieve and attain a higher degree of efficiency in the organization, administration and operation of local police agencies; and to replace the local police service on a professional level.”

Since that year, the Commission had undergone changes in its organizational structure. However, it was in 1972 that the POLCOM was reorganized into it was known now as the NAPOLCOM. Originally under the Office of the President, it was later on transferred to the Ministry of National Defense in 1975 by virtue of Presidential Decree (PD) No. 765, known as the Police Integration Law.

With the passage of the R.A. No. 6975 on December 13, 1990, the PNP was established under a reorganized Department of the Interior and Local Government (DILG). Hence, a new National Police Commission was created within the DILG, “for the purpose of effectively discharging the functions prescribed in the Constitution and provided in the Act.”

But under the Republic Act No. 8551 or otherwise known as, An Act Providing For The Reform and Reorganization of the Philippine National Police and For Other Purposes, Amending Certain Provisions of Republic Act Numbered Sixty-Nine Hundred and Seventy-Five Entitled, “An Act Establishing The Philippine National Police Under A Re-Organized Department of the Interior and Local Government, And For Other Purposes.” It expressly declares as policy and principles, that it is the role of the State to establish a highly efficient and competent police force which is national in scope and civilian in character administered and controlled by a national police commission. Furthermore, this Act has strengthened and expanded the Commission’s authority over the PNP to include administration of police entrance examination, conduct of pre-charge investigation against police anomalies and irregularities and summary dismissal of erring police members.

Today, in terms of broad-based clientele organization, the PNP composition is of 112,242 uniformed personnel and 4,983 non-uniformed personnel, stationed nationwide.

Furthermore, the NAPOLCOM is conceived to be as a collegial body, in which under R.A. 8551, the Commission is an autonomous agency, but attached to the DILG for “policy and program coordination.” The Secretary of the DILG is the ex-officio Chairperson of the Commission.

In R.A. No. 8551, it enumerates the different disciplinary mechanisms where any complaint against any member of the PNP may be filed, to wit: (1) Chiefs of Police, (2) Chief of the PNP, (3) Mayors of cities and municipalities, (4) People’s Law Enforcement Boards (PLEBs), (5) Internal Affairs Service (IAS), and the (6) National Police Commission. In addition, Sections 13 and 73, of R.A. No. 8551, gives the Commission operational supervision over the PNP aside from its mandate for administrative control.

Tuesday, August 24, 2010

The Basics of International Humanitarian Law

The Geneva Conventions continue to remind us most forcefully of our common obligation to care for each other - Nelson Mandela

What is IHL?

International Humanitarian Law (IHL) is a set of rules which place restrictions on the use of weapons and methods of warfare. It protects people who are not, or no longer, participating in hostilities. ILH aims to protect human dignity and to limit suffering during times of war. It is also known as the law of war or the law of armed conflict.

IHL is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States - treaties or conventions -,in customary rules, whicu consist of State practice considered by them as legally binding, and in general principles.

IHL applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.

Where did IHL originate?

Iternational Humanitarian Law is rooted in the rules of ancient civilizations and religions - warfare has always been subject to certain prnciples and customs.

Universal codification of intenational humanitarian law began in the 19th century. Since then, States have agreed to a series of practical rules, based on the bitter experience of modern warfare. These rules strike a careful balance between humanitarian concerns and the military requirements of States.

As the international community has grown, an increasing number of States have contributed to the development of those rules. IHL forms today a universal body of law.

Where is IHL to be found?

A major part of IHl is contained in the four Geneva Conventions of 1949. Nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts.

Other agreements prohibit the use of certain weapons and military tatctics and protect certain categories of people and goods. These agreements include:

- the 1954 Convention for the Protection of Cultural Property in the Event of Armed conflict, plus its two protocols;
- the 1972 Biological Weapons Convention;
- the 1980 Conventional Weapons Conventionand its five protocols;
- the 1993 Chemical Weapons Convention;
- the 1997 Ottawa Convention on anti-personnel mines;
- the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Many provisions of IHL are now accepted as customary law - that is, as general rules by which all States are bound.

Why is IHL Important?

IHL is one of the most powerful tools the international community has at its disposal to ensure the safety and dignity of people in times of war. It seeks to preserve a measure of humanity, with the guiding principle that even in war there are limits.

How does IHL Protect?

IHL prohibits the use of weapons which are particularly cruel or which do not distinguish between combatants and civilians. It also requires the parties to a conflict to:

- distinguish between combatants and civilians, and to refrain from attacking civilians;
- care for the wounded and sick and protect medical personnel;
- ensure that the dignity of prisoners of war and civilian internees is preserved by allowing visits by ICRC delegates.

When does IHL Apply?

IHL concerns two situations:

- international armed conflicts which involve at least two countries;
- armed conflicts that take place in one country (such as those between a government and rebel forces). IHL applies to all parties to a conflict regardless of who started it.

Who does IHL Protect?

IHL protects thao who are not, or no longer, participating in hostilities, such as:

- civilians;
- medical and religious military personnel;
- wounded, shipwrecked and sick combatants;
- prisoners of war.

Recognizing their specific needs, IHL grants wormen and children additional protection.

Based from International Committee of the Red Cross (ICRC) Primer

Friday, August 20, 2010

Sources of International Law and its Application to the Philippine Legal System

By Chester B. Cabalza

Blogger's Notes:
Commentary of an Academic 
(Copyright @ 2010 by Chester B Cabalza. All Rights Reserved).

Provisions of Article 38(1) of the Statute of International Court of Justice

The said article provides as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a)international conventions, whether general or particular, establishing rules expressly recognized by the contesting state;

(b)international custom, as evidence of a general practice accepted as law;

(c)the general principles of law recognized by civilized nations;

(d)subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Provisions of Section 102 of the ALI Restatement (Third) of US Foreign Relations Law

The Restatement (Third) of the Foreign Relations Law of the United States is a text complied and published by the American Law Institute, an NGO. The Restatement are designed to provide a comprehensive overview of the law in a particular area-in the ALI’s own words, to “tell judges and lawyers what the law is.” The ALI itself is not a law-making body, however, and although the Restatement are widely respected, hence they have now legal independent legal effect.

Considerably, Restatement’s list of sources of international law can be compared to in Article 38(1) of the Statute of the International Court of Justice.

Section 102 of the ALI Restatement (Third) of US Foreign Relations Law, provides that:

(1) A rule of international law is one that has been accepted as such by the international community of states

(a) In the form of customary law;

(b) By international agreement; or

(c) By derivation from general principles common to the major legal systems of the world.

(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.

(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when agreements are intended for adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.

Rules of International Law in the Philippine Legal System

International law is founded largely upon the principles of reciprocity, comity, independence and equality of States. These principles were adopted as part of the law of the land. In the Philippines, the Doctrine of Incorporation prevails where rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. Such is recognized in Sec. 2, Art. II, 1987 Constitution, in gist that it “adopts the generally accepted principles of international law as part as law of the land.” The Philippines is a dualist state that subscribes to the Dualist theory where domestic and international law are independent of each other, and as they regulate different subject matters. International law regulates relations of sovereign states while municipal law governs the internal affairs of the state. Thus, no conflict can ever arise between international and municipal law because they are mutually exclusive.

In case of conflict between the international law (IL) and municipal law, IL prevails before an international tribunal, is a state may not plead its own law as an excuse for failure to comply with international law. The state must modify its laws to ensure fulfillment of its obligations under the treaty, unless the constitutional violation is manifest and concerns a rule of internal law of fundamental importance.

On the other hand, municipal rule prevails when the conflict comes before a domestic court, domestic courts are bound to apply the local law. Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its character as international law. For instance, in the case of Pimentel v. Executive Secretary, it was held that the power to ratify is vested in the President as chief architect of foreign policies subject to the concurrence of the Senate. Under the law, treaty or international agreements, and in this case, the Rome of Statute, must be concurred in by at least two-thirds (2/3) of all the members of the Senate. In another case, Gonzales v. Hechanova, herein the executive secretary entered two separate contracts for the purchase of imported rice from the governments of Vietnam and Burma,. However, the court held that said executive agreements are unlawful, on the ground that the function of the executive secretary is to enforce laws by Congress, thus he has no power to authorize the importation of rice in question.

Inchong v. Hernandez

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely affected. by Republic Act No. 1180, petitioner,
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents.


This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and far-reaching in significance. The enactment poses questions of due process, police power and equal protection of the laws. It also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the enactment?

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for similar classes than for similar classes of American citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power. (2 Am., Jur. 468-469.)


Is the exclusion in the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the aliens have heretofore engaged therein?


Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident — as a matter of fact it seems not only appropriate but actually necessary — and that in any case such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law for the liquidation of existing businesses when the time comes for them to close. Our legal duty, however, is merely to determine if the law falls within the scope of legislative authority and does not transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Gonzales v. Hechanova

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.


It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents for the implementation of said proposed importation.

On September 25, 1963, petitioner Ramon A. Gonzales — a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn — filed the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 — explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any other government agency;" that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the preservation of the rights of the parties during the pendency this case and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith issued restraining respondent their agents or representatives from implementing the decision of the Executive Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction permanent.

The contracts with Vietnam and Burma

It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding effective upon the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved — under the American jurisprudence — in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit in this pretense.


W/N the sufficiency of petitioner's cause of action upon the theory that the proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1?


This theory is devoid of merit. The Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein, and each and every officer and employee of our Government, our government agencies and/or agents.

In the contracts with Vietnam and Burma, the Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws.

The writ of preliminary injunction

The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined from implementing the aforementioned proposed importation. However, the majority favors the negative view, for which reason the injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered.

Pimentel v. Executive Secretary

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

Sen. Aquilino Pimentel, Jr. et. al vs Office of the Executive Secretary, et. al.
G.R. No. 158088
July 6, 2005



This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.” Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.

Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law.

Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.


W/N the executive department has no duty to transmit the Rome Statute to the Senate for concurrence; or

Whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President.


In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive.

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate.



Wednesday, August 18, 2010

Davao Sawmill Co., Inc. v. Castillo

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

G.R. No. L-40411 August 7, 1935

DAVAO SAW MILL CO., INC., plaintiff-appellant,
APRONIANO G. CASTILLO and DAVAO LIGHT & POWER CO., INC., defendants-appellees.



The Davao Saw Mill Co., Inc., is the holder of a lumber concession from the Government of the Philippine Islands. It has operated a sawmill in the sitio of Maa, barrio of Tigatu, municipality of Davao, Province of Davao. However, the land upon which the business was conducted belonged to another person. On the land the sawmill company erected a building which housed the machinery used by it. Some of the implements thus used were clearly personal property, the conflict concerning machines which were placed and mounted on foundations of cement.

In the contract of lease between the sawmill company and the owner of the land there appeared the following provision:

That on the expiration of the period agreed upon, all the improvements and buildings introduced and erected by the party of the second part shall pass to the exclusive ownership of the party of the first part without any obligation on its part to pay any amount for said improvements and buildings; also, in the event the party of the second part should leave or abandon the land leased before the time herein stipulated, the improvements and buildings shall likewise pass to the ownership of the party of the first part as though the time agreed upon had expired: Provided, however, That the machineries and accessories are not included in the improvements which will pass to the party of the first part on the expiration or abandonment of the land leased.

In another action, wherein the Davao Light & Power Co., Inc., was the plaintiff and the Davao, Saw, Mill Co., Inc., was the defendant, a judgment was rendered in favor of the plaintiff in that action against the defendant in that action; a writ of execution issued thereon, and the properties now in question were levied upon as personalty by the sheriff. No third party claim was filed for such properties at the time of the sales thereof as is borne out by the record made by the plaintiff herein. Indeed the bidder, which was the plaintiff in that action, and the defendant herein having consummated the sale, proceeded to take possession of the machinery and other properties described in the corresponding certificates of sale executed in its favor by the sheriff of Davao.

As connecting up with the facts, it should further be explained that the Davao Saw Mill Co., Inc., has on a number of occasions treated the machinery as personal property by executing chattel mortgages in favor of third persons. One of such persons is the appellee by assignment from the original mortgages.


The sawmill company which erected a building that housed a machinery involves the determination of the nature of the properties described in the complaint whether it is a movable or immovable property.


Article 334, paragraphs 1 and 5, of the Civil Code, is in point. According to the Code, real property consists of —

1. Land, buildings, roads and constructions of all kinds adhering to the soil;

5. Machinery, liquid containers, instruments or implements intended by the owner of any building or land for use in connection with any industry or trade being carried on therein and which are expressly adapted to meet the requirements of such trade of industry.

Appellant emphasizes the first paragraph, and appellees the last mentioned paragraph. We entertain no doubt that the trial judge and appellees are right in their appreciation of the legal doctrines flowing from the facts.
In the first place, it must again be pointed out that the appellant should have registered its protest before or at the time of the sale of this property. It must further be pointed out that while not conclusive, the characterization of the property as chattels by the appellant is indicative of intention and impresses upon the property the character determined by the parties. In this connection the decision of this court in the case of Standard Oil Co. of New York vs. Jaramillo [1923], 44 Phil., 630), whether obiter dicta or not, furnishes the key to such a situation.

It is, however not necessary to spend overly must time in the resolution of this appeal on side issues. It is machinery which is involved; moreover, machinery not intended by the owner of any building or land for use in connection therewith, but intended by a lessee for use in a building erected on the land by the latter to be returned to the lessee on the expiration or abandonment of the lease.
Finding no reversible error in the record, the judgment appealed from will be affirmed, the costs of this instance to be paid by the appellant.

Chavez v. PEA-Amari

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

G.R. No. 133250 July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,



This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary restraining order. The petition seeks to compel the Public Estates Authority ("PEA" for brevity) to disclose all facts on PEA's then on-going renegotiations with Amari Coastal Bay and Development Corporation ("AMARI" for brevity) to reclaim portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new agreement with AMARI involving such reclamation.


On November 20, 1973, the government, through the Commissioner of Public Highways, signed a contract with the Construction and Development Corporation of the Philippines ("CDCP" for brevity) to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the works in consideration of fifty percent of the total reclaimed land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas," and "to develop, improve, acquire, lease and sell any and all kinds of lands."1 On the same date, then President Marcos issued Presidential Decree No. 1085 transferring to PEA the "lands reclaimed in the foreshore and offshore of the Manila Bay" under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its contract with CDCP, so that "[A]ll future works in MCCRRP shall be funded and owned by PEA.” Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29, 1981.

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 351, granting and transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom Islands" located at the southern portion of the Manila-Cavite Coastal Road, Parañaque City. The Freedom Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred and Forty One (1,578,441) square meters or 157.841 hectares.

On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a private corporation, to develop the Freedom Islands. The JVA also required the reclamation of an additional 250 hectares of submerged areas surrounding these islands to complete the configuration in the Master Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through negotiation without public bidding. On April 28, 1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed the JVA. On June 8, 1995, then President Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA.

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the Senate and denounced the JVA as the "grandmother of all scams." As a result, the Senate Committee on Government Corporations and Public Enterprises, and the Committee on Accountability of Public Officers and Investigations, conducted a joint investigation. The Senate Committees reported the results of their investigation in Senate Committee Report No. 560 dated September 16, 1997. Among the conclusions of their report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands of the public domain which the government has not classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No. 365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee Report No. 560. The members of the Legal Task Force were the Secretary of Justice, the Chief Presidential Legal Counsel, and the Government Corporate Counsel. The Legal Task Force upheld the legality of the JVA, contrary to the conclusions reached by the Senate Committees.

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-going renegotiations between PEA and AMARI under an order issued by then President Fidel V. Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz composed the negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application for the Issuance of a Temporary Restraining Order and Preliminary Injunction docketed as G.R. No. 132994 seeking to nullify the JVA. The Court dismissed the petition "for unwarranted disregard of judicial hierarchy, without prejudice to the refiling of the case before the proper court."

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos in the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the 1987 Constitution on the right of the people to information on matters of public concern. Petitioner assails the sale to AMARI of lands of the public domain as a blatant violation of Section 3, Article XII of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to private corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in properties of the State that are of public dominion.

On December 28, 1998, petitioner filed an Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance of a temporary restraining order; and (c) to set the case for hearing on oral argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999, which the Court denied in a Resolution dated June 22, 1999.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended JVA," for brevity). On May 28, 1999, the Office of the President under the administration of then President Joseph E. Estrada approved the Amended JVA.


The issues raised by petitioner, PEA and AMARI are as follows:

(a) Whether principal relief prayed for in the petition are moot and academic because of subsequent events;

(b) Whether the petition merits dismissal for failing to observe the principle governing the hierarchy of court;

(c) Whether the petition merits dismissal for non-exhaustion of administrative remedies;

(d) Whether petitioner has locus standi to bring this suit;

(e) Whether the constitutional right to information includes official information on on-going negotiations before a final agreement;

(f) Whether the stipulations in the amended joint venture agreement for the transfer to Amari of certain lands, reclaimed and still to be reclaimed, violate the 1987 Constitution; and

(g) Whether the court is the proper forum for raising the issue of whether the amended joint venture agreement is grossly disadvantageous to the government.


On the first issue, the Court has ruled that the signing of the Amended JVA by PEA and AMARI and its approval by the President cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on constitutional grounds necessarily includes preventing its implementation if in the meantime PEA and AMARI have signed one in violation of the Constitution. Petitioner's principal basis in assailing the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution, which prohibits the government from alienating lands of the public domain to private corporations. If the Amended JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and if already implemented, to annul the effects of such unconstitutional contract.

On the second issue, the Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional issues of transcendental importance to the public.22 The Court can resolve this case without determining any factual issue related to the case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.

On the third issue, PEA claims petitioner's direct resort to the Court violates the principle of exhaustion of administrative remedies. It also violates the rule that mandamus may issue only if there is no other plain, speedy and adequate remedy in the ordinary course of law. Hence, The principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of the constitutional ban prohibiting the alienation of lands of the public domain to private corporations. We rule that the principle of exhaustion of administrative remedies does not apply in the instant case.

On the fourth issue, the rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional rights - to information and to the equitable diffusion of natural resources - matters of transcendental public importance, the petitioner has the requisite locus standi.

On the fifth issue, Section 7, Article III of the Constitution explains the people's right to information on matters of public concern. The court has held that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order.40 Congress has also prescribed other limitations on the right to information in several legislations.

On the sixth issue, the Regalian doctrine is deeply implanted in our legal system. The court has summarized in their conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain until classified as alienable or disposable lands open to disposition and declared no longer needed for public service. The government can make such classification and declaration only after PEA has reclaimed these submerged areas. Only then can these lands qualify as agricultural lands of the public domain, which are the only natural resources the government can alienate. In their present state, the 592.15 hectares of submerged areas are inalienable and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34 hectares110 of the Freedom Islands, such transfer is void for being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares111 of still submerged areas of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural resources other than agricultural lands of the public domain.

PEA may reclaim these submerged areas. Thereafter, the government can classify the reclaimed lands as alienable or disposable, and further declare them no longer needed for public service. Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be void in view of Section 3, Article XII of the 1987Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain.

On the last issue, Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this last issue. Besides, the Court is not a trier of facts, and this last issue involves a determination of factual matters.
WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay Development Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint Venture Agreement which is hereby declared NULL and VOID ab initio.


Friday, August 13, 2010

Convergence of Terrorism in a Digital Age from a Local to Global Stanpoint

Blogger's Notes:
Commentary of an Academic 
(Copyright @ 2015 by Chester B Cabalza. All Rights Reserved).

Communication is a vital tool of terrorist groups which cling to radicalism. Terrorist organizations are making use of the cyberspace for their own nefarious purposes. They are using the internet to launch cyber attacks, spread propaganda, influence people, employ recruitment, and gather intelligence on potential targets.

The Moro Islamic Liberation Front (MILF), assumed to be the largest Muslim separatist rebel group based on armed strength, is also a militant Islamic movement in southern Mindanao, Philippines with cyber capability that represents itself through the cyberspace. Through communication linkages in a seemingly deterritorialized globe the convergence on cyberterrorism can be easily attained.

Given the premise, the essay therefore, aims to examine and understand the cyber capability of the MILF as leverage in communicating for a terroristic cause.

The MILF was founded by former Moro National Liberation Front (MNLF) vice chairman Hashim Salamat, who advocated a radical review of the Muslim separatist movement. The late Salamat did not share with MNLF Chairman Nur Misuari’s moderate and politically oriented campaign. He believed more in radical action to attain the goal of creating a purely Islamic state. While the MNLF signed a peace treaty with the government in 1996, on the contrary, the MILF continued fighting.

Filipino scholars on the Bangsamoro traced back the existence of the MILF in the early 1960s when some of the students from Mindanao studied in Middle East universities, then covertly organized themselves, in preparation for the launching of an Islamic movement that would aim at liberating the “Moroland” from the clutches of Philippine colonialism and foster the revival of Islamic rule in Mindanao.

Initially, the MILF was armed and supported by the Libyan and Malaysian governments, but by the early 1990s, it has lost much of its state support. To that end, the MILF forged a tentative relationship with Al Qaeda, receiving money through Saudi charities, as well as limited military training, though while trying to build up its self-reliance.

In fact, one of the existing and active websites of the MILF is the lurawan.com, which banners the axiom of “Continuing struggle for the right of self-determination and freedom of the Bangsamoro People.” In this website, it covers news, opinions, columns, weekly editorial, documents, and guest articles, which play as platforms for internet forum among Filipino Moro and Muslims around the world who have access of the World Wide Web.

The GRP-MILF peace talks formally opened on 25 October 1999 in Sultan Kudarat, Maguindanao, with an aim of lasting peace in Mindanao through a meaningful autonomy program and a consolidation of peace efforts. However, many view that the battle fought by the Armed Forces of the Philippines (AFP) and the Bangsamoro Islamic Armed Forces (BIAF), considerably marred and stalled the progress of the GRP-MILF peace process.

Fast forward in 2008, the two groups signed a joint communiqué on the Muslim ancestral domain. The Memorandum of Agreement (MOA) provides that about 700 villages in Mindanao will hold a referendum within 12 months after signing if they want to join the Muslim homeland. The signing of the agreement was temporarily set in August 2009. However, formal peace deal was scheduled to be in November 2009. However, local officials from North Cotabato ask the Supreme Court to block the signing of the agreement between GRP and MILF.

Terrorism is an activity and it is not an ideal. The MILF still posting a challenge on the Philippine Constitution and still owning the arms capable of overtaking the government and fights through a guerilla warfare and employs terrorist activities to achieve its ends.

One of the ways that the MILF has augmented its military capacity is by forging tactical alliances with as the Southeast Asian affiliate Jemaah Islamiyah (JI). The MILF began to invite members of the JI to train in its camps beginning in 1996. At the time, a number of Al Qaeda trainers were dispatched to Mindanao to train MILF and JI operatives.

Several reasons availed why the MILF continues its link with terrorist groups. First, the MILF has not been punished for these actions. Since 2001, the Philippine government has pleaded with the U.S. government not to put the MILF on the Foreign Terrorist Organization list for fear of undermining the peace process. Second, most fighters in the MILF see the JI members as their brothers and fellow mujahideen, whom they have known since Afghanistan war. Third, the MILF has low expectations for the outcome of the peace process and questions the government’s seriousness and intentions to actually implement it.

The insurgency in the Philippines is a domestic phenomenon with deep historical roots and an unsuccessful integration of the Muslim population into the Christian-dominated state. The MILF, Abu Sayyaf Group (ASG), and the Rajah Suleiman Movement (RSM), are three major insurgent/terrorist actors in the country. Thus, current organizational distinctions have blurred within these groups and new alliances have come into being. With key leaders of ASG and RSM related by kinship apart from ideology. Even in factionalism within the group, the MILF leadership remains strong and in control.

Back to cyberterrorism, because of ignorance, the danger that it poses to the internet is frequently debated, and surprisingly little is known about the threat posed by terrorists’ use of the internet. To further prevent escalation on the problem of terrorism in the Philippines and Southeast Asia, the RP-US Exercise Balikatan 2009 was enforced to jointly exercise it by the AFP and the United States Armed Forces, which aims to meet RP-US obligations under the 50-year-old Mutual Defense Treaty (MDT), showcasing a long bilateral partnership in Philippine history, and to establish an effective mechanism for defense cooperation between the two countries that is being actualized.

In the Philippines, where insurgency and terrorism overlap and global terrorists often exploit the local grievances and resentments to spread ideology of enmity and violence. The resilience of the terrorist groups in the region comes from robust networking through convergence of internet networks. Thus, local-global discourse may impact and influence groups in a deterritorialized community. But consequently, the website of the MILF may not be as nefarious as expected to be from a militant Muslim organization, but proper handling of its contents may be regulated if there are certain guidelines and laws.

My Beat on Environmental Security (Part II)

Blogger's Notes:
Commentary of an Academic 
(Copyright @ 2010 by Chester B Cabalza. All Rights Reserved).

by Chester B. Cabalza

The introduction to environmental security re-introduced me on the impacts and repercussions that the environment as an object in the study of security is needed not only to individual’s survival, a country’s interests, but also to the world’s continued existence, since we share only one planet Earth.

From its context during the Cold War down to the clear and present danger brought by various environmental contagions due to massive effects it has caused to people of different walks of life, this non-traditional security has transnational effects that must be addressed by all nationalities and citizens of the world.

Constructivists would often believe that ecological issues can be construed through people that makes society and society that makes people. This is a continuous and two-way process. The third element contains rules which always link the two elements together. With a theorist’s reconstruction of the world, structures of human association are determined primarily by shared ideas than material forces. Constructivism accepts the unity of nature and society, as positivists do, and sees nature as irrevocably as social. Thus, interactions are governed not only by institutions but also by ideas, beliefs, and culture.

Hence, environmental security as perceived by military readiness can somewhat co-exist, or least become divisive mechanism, against Mother Nature. Just like in the blockbuster film Avatar, where in its plot, scientists and the military alike, would like to engage with Na’vi tribe community of blue-skinned species of sapient humanoids, who live in harmony with nature. However, it ended with a bloody destruction of nature because of people’s greed and disrespect to Mother Nature.

Ecological sustainable development must top the list of our priorities in saving mother Earth. We have many laws that need to be enforced and implemented. In my framework, air quality and renewable energy in the Philippines must be tackled conscientiously. Given the case, now that the Philippines have existing laws on the Clear Air Act and Renewable Energy Act, these newly-enacted laws must give teeth in protecting the environment.

The Clean Air Act of 1999 has the following features: identification and characterization of all airsheds in the country and establishment of multi-sectoral AQM Boards for each airshed; development of a national air quality management framework, and a fund to be earmarked for air quality management activities; imposition of air quality management charges; and improvement in quality of gasoline and diesel and promotion of alternative, cleaner fuels

On the other hand, the Renewable Energy Act of 2008 (Republic Act 9531) seeks to promote the development of renewable energy resources and its commercialization. It aims to achieve this by providing incentives to institutions that invest in the sector. Sources of renewable energy include the sun, wind, bodies of water, organic matter and the earth’s heat.

In this cyclic framework on the environment, the environmental principles must guide practitioners and nature lovers to save Mother Earth. Same as my intuition in previous paper on the Seven Environmental Principles, that these are very basic yet multifaceted, simple but striking, as well as meaningful and evocative. It’s like reading the book of Robert Fulghum on “All I really need to know I learned in Kindergarten”. The theme seems so elementary, however, the essence and practice is universal, unfortunately, misguidedly followed by many of us.

For example, in order to combat on the issue of climate change, following the framework above, disciplinal approaches on environmental security must be taken seriously. Like theories that must be applied to prescribe such problem. Hence, case studies and statutes on renewable energy can become guiding forces on how to solve the ecological problems. Its implementing rules and regulations are important for incident command system and command responsibility to synchronize in adhering and implementing these environmental laws. Lastly, the environmental principles are used as universal teachings in caring our environment. These are like the golden rules that every person must learn to understand and obey.

In the end, based on the speech of Neil Ahrendt, I share with his thoughts that we must demand environmental protection from our leaders, our politicians, our friends, our families and ourselves. We must make a commitment to renew the spirit of innovation; we must lead by example in saying that we will protect this world so that our children and generations after them can exist in a sustainable society which does not inherently damage the ground it resides on. We must rebuild our society so that the air we breathe is clean, the sky we look upon is clear, and the waters which run throughout are free from pollution.

Government-wide Audit Report on the Performance Reporting System


Governments around the world consider effective performance management and reporting systems as a vehicle for enhancing public accountability and driving the achievement of government outcome. In line with this principle, the Philippine Government, through the Department of Budget and Management (DBM) and the National Economic Development Authority (NEDA), embarked on projects to further strengthen accountability mechanisms and improve public expenditure management. One of the projects that was initiated by the DBM for this purpose was the Public Expenditure Management Improvement Project (PEMIP). The objectives of the PEMIP are as follows:

• To enhance aggregate fiscal discipline;

• To improve resource allocation; and

• To promote operating efficiency at the agency level

The major components of the PEMIP are as follows:

• Medium-Term Expenditure Framework (MTEF);

• Agency Performance Measurement System;

• Agency Managerial Flexibility; and

• Performance Incentives.

The Philippine Government started to introduce the MTEF and the Organizational Performance Indicator Framework (OPIF) through the FY 2000 National Budget Call. This was refined in the FYs 2001- 2002 budget calls, with the introduction of periodic assessment of on-going Programs, Activities and Projects (PAPs). These projects are subjected to the Sector Effectiveness and Efficiency Review (SEER). The MTEF, OPIF, and SEER constitute the three pillars of the Government’s public expenditure management reform program.

Under the MTEF, the budget will be restructured to cover a number of years to better support the Government’s development strategy and improve technical efficiency in the sectors by "providing a more predictable resource environment for program planning and implementation."

Hand in hand, the concept of performance indicators was introduced through OPIF. The indicators were intended to be linked to the organization’s performance in order to encourage government agencies to allocate and/or reallocate resources towards high priority PAPs. Under OPIF, the appropriate final output directly linked with the actual organization performance of the agencies will be identified and developed. A final output is a good or service produced or provided by an organization which is consumed or used by an external client.

Another project of the government which is related to performance reporting is the Formulation of Performance Indicators and Standards for Development Administration (FPISDA) Project. This project was undertaken by NEDA in relation to the paradigm shift in governance which is called "development administration" covering six areas of concern including, among others, re-engineering or streamlining the bureaucracy, privatization and decentralization. Under the project, NEDA commissioned the Development Academy of the Philippines (DAP) to formulate performance indicators and standards on the areas of concern of development administration. These indicators are intended to monitor and evaluate government’s performance under the new concept of "development administration". The ultimate objective of FPISDA is a shift to performance-based planning, programming and budgeting system.

In line with the government’s efforts to improve public expenditure management and strengthen accountability, a study on the existing performance reporting system of selected government agencies was undertaken. Performance reporting is considered as an integral part of the government’s accountability framework.

Reporting is the final phase of any activity and the resultant reports are considered to be the windows of accomplishments. For this reason, performance reports to be useful must be credible. Performance reports of government agencies are used by different sectors. Internal users or the management use the report to assess and monitor the progress of a particular activity in relation to its intended outcome. External users are using the reports for different purposes. The DBM and legislative bodies need performance reports for budget allocation purposes. The Office of the President uses the reports for monitoring the performance of the agency officials and as an input in the President’s State of the Nation Address(SONA).

The NEDA uses the agency’s reports as basis for assessing the extent of implementation of socio-economic and development programs of the government. Other external users of reports are the general public and the media.

This audit covered the evaluation of existing reporting systems of six (6) government agencies including the Department of Labor and Employment (D0LE).

The DOLE, with its vision to promote full and productive employment, is the primary government agency tasked with the formulation and administration of policies and programs relative to the protection, welfare and advancement of Filipino workers. Its missions include promoting gainful and dignified employment, ensuring workers’ protection and welfare, maintaining industrial peace and enhancing sectoral partnership to bring about social justice and sustained equitable economic growth.
The DOLE is composed of, among others, staff services which provide advisory, technical and administrative support to staff and line operations. These include Administrative Services (AS), Financial and Management Service (FMS), Human Resource Development Service (HRDS), International Labor Affairs Service (ILAS), Information and Publication Service (IPS), Legal Service (LS) and Planning Service (PS).

In pursuance of its mandate, the DOLE received appropriations amounting to P1.467 billion in 2000, P1.467 billion in 2001, and P1.25 billion in 2002. Of the total appropriations for 2002, 35% was earmarked for General Administration and Support, and Support to Operations and Projects, while 65% was earmarked for Operations apportioned.


The audit was conducted to assess the efficiency and effectiveness of the performance reporting system of overseas labor operations giving consideration to the sufficiency of performance indicators and the reliability, relevance, and completeness of performance information.


The audit covered the evaluation of performance reports rendered by six (6) selected medium-sized government agencies for CYs 2001 and 2002 which include the DOLE.
The audit focused on the performance reporting system of the Philippine Overseas Labor Offices (POLOs) strategically located overseas and posted by the Labor Attaches (Labatts). The POLOs are under the supervision of the ILAS. The POLOs act as an operating arm of DOLE for providing protection, facilities, programs and appropriate services to Overseas Filipino Workers (OFWs), which include, but not limited to, the following:

a. assistance in all problems arising out of employment;

b. ensuring against discrimination and exploitation;

c. authentication and verification of employment contracts when appropriate;

d. conduct of appropriate studies on labor and employment;

The activities of the POLOs are part of its Promotion of Employment and Worker’s Welfare Program with an appropriation of P344 Million equivalent to 27% (P0.344B /P1.25B) of the total DOLE appropriation.

To achieve the audit objective, the team considered the following key criteria for assessing the effectiveness of the performance reporting system:

• Complete and informative reporting;

• Accurate and reliable reports;

• Timely submission of reports;

• Sufficient and appropriate performance indicators.

During the audit, the team performed the following procedures:

a. Reviewed existing policies and guidelines on DOLE’s performance reporting particularly, on the functions of the Labatt Corps;

b. Interviewed concerned key officials and personnel;

c. Evaluated physical, narrative and significant accomplishment reports submitted by the Labatts;

d. Assessed the sufficiency of performance indicators;

e. Gathered information from DOLE attached agencies in relation to the collection function of Labatts; and

f. Confirmed the relevance of DOLE reports to other government agencies.
The audit was conducted from November 18, 2002 to March 31, 2003 in compliance with COA Office Orders Nos. 2002-518 and 2002-518A dated November 15 and 25, 2002, respectively, and pursuant to COA Memorandum dated February 13, 2003.


The existing performance reporting system of the POLOs needs improvement to ensure the generation of reliable, complete and informative reports. This situation is partly due to insufficient performance indicators to measure the achievement of the POLO’s objective. In view of this deficiency, the reports could not be used as bases for assessing the effective implementation of the POLO’s programs and the achievement of its intended results.

The team noted that the reports merely enumerate the activities and outputs accomplished during the period without relating such outputs to the program’s intended results or outcome which is protecting the welfare and improving the working conditions of OFWs. This hinders the conduct of an effective evaluation of the POLO’s performance which is geared towards ensuring the attainment of the objective and identifying existing weaknesses affecting the implementation of the programs.

The audit also disclosed that about 43% of the narrative and statistical reports in CY 2002 were submitted beyond the deadline which the other 27% were not submitted at all. This affected the accuracy and completeness of the reports.

Likewise, reports submitted by POLOs could not be relied upon due to the absence of validation of reports and varied accomplishments appearing in different reports for the same period.

Considering the importance of reports as a vital source of information for assessing the impact of government projects and for improving public confidence, the team recommended measures to address these concerns for consideration by the DOLE.


The results of the audit were discussed with the concerned officials and employees of the DOLE in an exit conference conducted on September 12, 2003. The DOLE accepted the team’s observations and had taken initial steps to address these concerns.

Monday, August 9, 2010

MCQ in Philippine Bar Examinations: 2011 and Beyond

Copyright © 2010 by Chester B. Cabalza

Law professors are suddenly moved by the decision of the Supreme Court (SC) to adapt the multiple choice questions (MCQ) for their midterm and final exams in their respective law subjects. As law students who were used to pyramid answers in essay-type questions are bewildered by this abrupt change. That's why many of the law professors and law disciples alike are preparing themselves for the new type of questions during examinations administered by their respective law schools/colleges in the country.

According to the SC, and I quote from the Philippine Daily Inquirer (PDI), "60 percent of the 2011 Bar examination will be multiple choice questions, while only 40 percent will be essay." But there's a twist in this type of exam when justices opined that examinees' answers in the essay part will only be checked unless they pass the MCQ part. (How sad and hard it is!)

The MCQ exams will have the following advantages (Ibid:PDI) "objective correction of the papers since every question has one definite answer; encouragement of the mastery of subject because of the difficulty of distinguishing between a correct and a nearly correct answer; and the employment of a wider scope of topics since the examiner can ask as many as 100 questions in an hour and a half exam, among others."

They say that the MCQ will test the examinees’ knowledge on codal provisions or provisions of the law “but also their comprehension and analysis.”

Because of this, I tried to make some simple reviewer of MCQ in my labor standard subject just to test my wit if I could answer basic MCQ in my preparation for my midterm and final exams, and hopefully during the BAR Exams in the future:

Sample MCQ in Labor Standards:

1. The government-owned and –controlled corporations “with original charter” refer to corporations chartered by special law distinguished from corporations organized under our general incorporation statute, the Corporation Code. Thus, under the present state of the law, GOCCs with original charter are subject to what law?

A. Labor Code
B. Corporation Code
C. Civil Service Law
D. Civil Service Rules

2. In the case of Euro-Linea Phils. Inc. vs. National Labor Relations Commission, it was held that in interpreting the Constitution’s protection to labor and social justice provisions and the labor laws and rules and regulations implementing the constitutional mandate, the Supreme Court adopts what approach which favors the exercise of labor rights?

A. Labor’s Welfare
B. Liberal’s Approach
C. Liberal Worker’s Approach
D. Laborer’s Approach

3. There are important principles for the entitlement to Maternity Leave under the SSS law. One of this is:

A. Full payment shall be advanced by the employer within 30 days from the filing of the maternity leave application
B. Full payment shall be advanced by the employer within 15 days from the filing of the maternity leave application
C. Maternity benefits shall be paid only for the first 2 deliveries of miscarriages
D. Maternity benefits shall be paid only for the first 5 deliveries of miscarriages

4. Under RA 9262 on Battered Woman Leave, it provides that an employee is entitled to a paid leave of up to 10 days in addition to other paid leaves under the Labor Code, other laws and company policies, provided the following requisites must be present, except for one invalid requisite:

A. Employee is a woman
B. She is a victim of physical, sexual or psychological violence
C. She applies for the issuance of the protection order
D. She can claim administrative and court order to claim such leave

5. Under RA 8187 on Paternity Leave Act of 1996, paternity leave refers to the benefits granted to the following employees:

A. Both male and female employees in public sectors only
B. Both male and female employees in private sectors only
C. All married male employees in the public and privates sectors
D. All married male employees in the private sectors

6. Anti-Sexual Harassment Act is committed by any person having:

A. Authority or Influence
B. Authority, influence, moral ascendancy over another in a work or education or training environment, and who demands, requests or otherwise requires any lascivious favor which would result in a hostile or offensive environment
C. Authority, influence, moral ascendancy over another in a work or education or training environment, and who demands money which would result in a hostile or offensive environment
D. Authority, influence, moral ascendancy over another in a work or education or training environment, and who demands, requests or otherwise requires any sexual favor which would result in a hostile or offensive environment

7. Anti-Child Abuse Act, or otherwise known as, “An Act Providing for Stronger Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, providing Penalties for its Violation and for Other Purposes,” was strengthened by what Republic Act?

A. RA 7658
B. RA 7758
C. RA 7856
D. RA 7652

8. In Article 151 of the Labor Code, it implied that since the relationship between the employer and the househelper is a fiduciary one, the Court cannot order the employer to re-hire the househelper, even if the latter was unjustly dismissed. Is this valid?

A. No, the employer cannot re-hire the househelper
B. No, the employer can indemnify the househelper
C. Yes, the Court can order the employer to re-hire the househelper
D. Yes, the Court cannot order the employer to re-hire the househelper, by operation of the law

9. All rights and benefits granted to workers under the Labor Code shall, except as may otherwise be provided in the Code, apply alike to all workers, whether:
A. Agricultural or commercial
B. Agricultural or industrial
C. Agricultural or non-agricultural
D. Non-industrial or non-commercial

10. Complaints for violation of labor standards and the terms and conditions of employment involving money claims of homeworkers exceeding PhP5,000 per homeworker shall be heard and decided by the:

A. Regional Director
B. Labor Arbiter in the NLRC
C. Secretary of Labor
D. Homeworkers Union

11. In the case of People v. Panis, which defined “Recruitment and Placement” in Article 13 (b), the Court ruled that:

(a) That the number of persons is an essential ingredient of the act of recruitment and placement of workers.
(b) That the number of persons is not an essential ingredient of the act of recruitment and placement of workers.
(c) That the number of workers is essential to the employment.
(d) That the number of workers are not essential to the employment.

12. To pursue its responsibility to promote employment opportunities, the DOLE carries out programs for local and overseas employment. However, effective allocation of manpower resources in local employment is assigned to the:

(a) National Labor Relations Commission (NLRC)
(b) Philippine Overseas Employment Administration (POEA)
(c) Bureau of Local Employment (BLE)
(d) Department of Labor and Employment (DOLE)

13. It shall be the duty of every employer to furnish his employees in any locality with free medical and dental attendance and facilities. If the company/industry has one hundred (100) employees and exceeds to three hundred (300), what does the provision stipulates?

(a) The services of full-time physician, dentist and a full-time registered nurse as well as a dental clinic, and an infirmary or emergency hospital with one bed capacity.
(b) The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic.
(c) The services of a full-time registered nurse.
(d) None of the above

14. Which of the following is NOT a policy of the State?

(a) To promote and maintain a state of full employment through improved manpower training, allocation and utilization.
(b) To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and condition of employment.
(c) To facilitate a free choice of available employment by persons seeking work in conformity with the national interest.
(d) To ignore the movement of workers in conformity with the national interest.

15. Article 40 requires only non-resident aliens to secure employment permit. Resident aliens are not required. For immigrants and resident aliens what is required is an:

(a) Employer-Employee Contract
(b) Alien Permit
(c) Alien Employment Registration Certificate
(d) Business Permit

16. Apprenticeship is the arrangement and the period when an upcoming worker undergoes hands-on training, more or less formal, to learn the ropes of a skilled job. This program aims to:

(a) To help meet the demand of the economy for trained manpower.
(b) To establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies.
(c) To establish apprenticeship standards for the protection of apprentices.
(d) All of the Above

17. When the death of a seaman resulted from a deliberate or willful Act on his own life, and it is directly attributable to the seaman, such death is compensable?

(a) NO
(b) YES

18. Who are NOT covered by the 24-Hour Duty Doctrine?

(a) Soldiers
(b) Doctors
(c) Policemen
(d) Peace Officers

19. Rafael was dismissed from overseas employment without just, valid or authorized cause, can he claim full reimbursement of his placement fee and what other benefits can he obtain?

(a) None, because of premature termination of contract.
(b) Yes, he can claim full reimbursement of his placement fee without other benefits.
(c) Yes, he can claim full reimbursement of his placement fee with interest at 12% per annum, plus his salary for the unexpired portion of his employment
(d) None of the above

20. Maria is a domestic helper of a Filipino business tycoon based in California, USA where she complains about money claims. The Labor Code, under the Migrant Workers’ Law, does the statute and regulations limit the coverage to non-Filipino or alien employers only?

(a) No, because nationality is immaterial
(b) Yes, because aliens are the ones covered under the law
(c) All of the above
(d) None of the Above


Friday, August 6, 2010

The State of Civil Aviation in the Philippines

In January 2010, the Ambassador for European Union, stated that the EU blocklisted the country’s flag carrier the Philippine Airlines and the No. 2 airline Cebu Pacific Airlines going to Europe.

When that pronouncement was made, Director General Alfonso Cusi, at that time headed the Civil Aviation Authority (CAA). It was deemed that under his management, things would be better, based from his track record as the former General Manager of the Manila International Airport Authority (MIAA).

The Civil Aviation Authority of the Philippines

In one of the forums I attended, in which, GM Cusi was the keynote speaker, he said that the civil aviation is the industry that caters to get others from commercial air passport operation that includes scheduled and non-scheduled air passport services, for paid or for hire. The navigational aircraft in furtherance of a business, the navigational aircraft from one place to another, or an aircraft operation involving the passport of passengers, cargo or mail, for remuneration.

In plain language, anything solid act there that is not a bird or belonging to the military.

He also tried to categorize civil aviation. First, the people that includes the pilots, airmen, mechanics, communicators, air controllers and agents running the business. Second, the process is the system, business processes, and how we conduct the offices. Third, the facilities including airports, hangars and other tangible assets. Fourth, to earn money to finance.

The people are the largest composition in the category. Now the question is why the Philippine civil aviation is included in the ITO list with special safety concern?

In fact, the Civil Aviation Authority of the Philippines (CAAP) is tasked to govern and oversee the civil aviation and the final approving body for visa licenses and clearances within the aviation industry. The CAA formerly Air Transportation Office, abbreviated as CAAP, is an agency of the Philippine government under the Department of Transportation and Communications, responsible for implementing policies on civil aviation to assure safe, economic and efficient air travel. The agency also investigates aviation accidents.

The CAAP was created in 2008 by virtue of the passage of the Bali Act 9497, required by international bodies to give the agency more teeth and power of governance in the aviation industry.

The CAAP is a government-owned and controlled corporation (GOCC). It has quasi-judicial authority and quasi-legislative power and is tasked to develop the aviation industry.

Thus, CAAP has a big task.

The State of Civil Aviation in the Philippines

If history permits, back in the 18th century when the driver of development was Maritime. Then in the 19th century there were trains; while the 20th century had the roads; and the 21st century has aviation.

Unfortunately, the Philippines has been a laggard and very much behind in the development of aviation. Just like in maritime, we lost the opportunity to beat the transit point is Asia, or at least in Southeast Asia, because of the lack in the infrastructure, despite of our being strategic in location.

Hence, the CAAP has the power and structure. It is an independent body and has a fiscal autonomy, unlike its previous organization.

In November 2007, our civil aviation industry was downgraded. This event became detrimental to the said industry. But those reports must be accurate.

In fact, the Big Apple’s or New York’s civil aviation industry is even worse. The Federal Aviation Administration (FAA) asked us certain reforms. We were given time and period. But what are the effects of downgrading? The only Philippine airlines flights were frozen and could not enter the US airspace; flights flying to the US were frozen and subjected for inspection while inside the United States.

Inspite of the Philippine Airlines (PAL) buying Boeing, this brand-new aircrafts are prohibited to enter the US. The problem were not the aircrafts but simply because its licenses are RP-registered and those manning it are Philippine-holders of licenses.

In October 2009, our aviation industry was again subjected for downgrading by the International Civil Aviation Organization (ICVO), which found eight areas of concern. The ICVO, after the oversight audit, issued a significant safety concerns (SSC), and saw deficiencies set by international standards related to aircraft operations, maintenance, personnel, certifications and supervision.

The SSC affects the operating status not only our air flag carriers but also our people and personnel where they subjected to discriminate their job applications. Filipino pilots applying to work in India and other countries, they are questioned. It’s embarrassing but that reality has to be solved. Those concerns remained unresolved.

The EU Downgrade

In March 2010, the European community blacklisted the Philippines. The EU issued orders that placed the country’s airlines on its watchlist as a precautionary measure to impose operating ban for our air flag carriers in and out of Europe. This was an action that gave them more teeth to enforce ICVO rules and regulations among its signatory members.

After the Philippines was blacklisted, there were foreboding similar actions done in similar countries by the ICVO like the one in Australia. We have to do more diplomatic work to avert that and fortunately we are holding and we must do it for the interest of the aviation industry. But because of blacklisting, the aviation industry suffered much. There were cancellations of travel booking from Europe. Few tourists are coming in. The Philippine economy is certainly affected.

Director General Cusi assessed that they must do something, not just for tourism and the CAAP, but for our country, as well.

In 2007, they were given advice that they were at certain altitude, and the advice is to go for higher altitude because there is obstruction ahead of it, but instead of elevating and going up, they remained static, and ICVO called their attention.

In 2009, they failed again to increase their altitude to correct the situation.

But in March 2010, they hit the plan before they reached the airport. So what did they do with this situation? Where did they fail?, he asked.

The common dominator of the FTA and EU reports is that CAAP failed because of their inability to perform our oversight function. They were tasked to guarantee compliance and safety related to international standards.

These organizations questioned our competence. Our civil aviation failed in the areas of business process and people. We were told that we were not complying. However, CAAP was transformed from an agency to a corporation; the reason the law was created to address these issues.

The two-year old CAAP remained to be in the crib, learning much from its previous mistakes. We need to seek assistance from SGV in auditing. Since we failed in business process, we are now adapting process required of us based on international standards and employed people to oversee that these processes are properly done.

In a meeting-conference with the EU, they acted on outdated information, and findings of ICVO were already corrected. CAAP invited them to come and see it for themselves but they have not yet replied. We have re-certificated our major airlines. But Europeans asked why the CAAP did it and the CAAP replied that because they keep of accusing our civil aviation. We did our very best. But the Caucasians, in defense as always, said they were not accusing us.

Co-Sharing of Resources with the Philippine Air Force

In terms of sharing resources with the military, meeting both the civil aviation and military air force requirements is possible. In fact, the Villamor air base is shared with civil aviation, including those in other places in the region. Co-existence with military requirements is indeed possible. Communication and coordination must always be maintained. Although, most of the operational requirements are different. Still, we share and co-exist with them.

In fact, Cebu Pacific, a commercial airline, gets some pilots from the air force. Airforce is for the defense. For civil aviation, management has to sit down with air force officials to jive with the requirements of military airforce and complement each other’s needs.

What is in store to Philippine civil aviation industry? Despite of global financial crisis, the Philippine civil aviation is growing and recorded a high growth in air travel traffic.

Our country has the best record in Southeast Asia’s region in terms of civil aviation.

Our domestic travel registered 30 percent growth due to the performances of Cebu Pacific, PAL, Air Philippines and other airlines. He believed that there are more opportunities to come.

But will the growth continue? He affirmed that given the 90 million population of the country, the projections on air travel will grow. How recently, the travel percentage is approximately around 15 percent only that is very low.

Problem on Infrastructure

But the country’s key problem is infrastructure. The civil aviation were not downgraded and downlisted by EU because of the facilities. But the problem actually is traffic jam especially in Metro Manila where the waiting time can go beyond 30 minutes.

The CAAP is trying to rationalize this issue.

Also, around 20 to 30 percent of air traffic is handled by MIAA in general aviation, and part of which, is training flights. Training flights will be relocated soon to give way to commercial flights. We want to push commercial traffic to Clark, but there are many things to be done.

But what’s next for Philippine civil aviation?

The good news is that the CAAP recently signed an IPO letter requesting that we be removed from the SSC list in its website. Hence, there is a need to coordinate with CAAP the process and proper rules to make the lifting official. Furthermore, once the SSC is lifted, the ban by EU will also be lifted, including the one by the FAA.

Protection of the Filipino Air Travelers

Brigadier General Reynato Jose, on the other hand, commended the speech of Director General Cusi. He said that the former’s presentation was enlightening and for giving a comprehensive insights on the country’s civil aviation.

In his reaction to the Director-General’s presentation, he stated that the Europeans caught immediately his attention. He said that it is the role of the CAAP to protect Filipino air travelers, whether in local or international flights, caused by the aftershock brought about by FAA reports. As an introduction to all, CAA became the Bureau of Air Transportation (BAT), and later became Air Transportation Office (ATO).

There was a constant change. The organization remained the same, from an authority to a bureau to just an office, not in order to cope in aviation causes. Then we later had the CAAP through a Republic Act 9497.

Regarding the downgrading, the Congress was compelled for the passage of RA 9497. Hence, the CAAP was the equivalent of NTSP in the United States.

In his last note, he was hoping that the passage of RA 9497 was a positive sign for the betterment of the civil aviation in the country.

Joint Use of Facilities

Lieutenant General Oscar Rabena, Commanding General of Philippine Air Force, was the second to comment on the presentation of speaker. In his comment, he said that, the state of the civil aviation is important to the industry. In the case of the Philippine Air force, in relation to national security, the state of the air force facilities must be considered.

In 1985 ATO granted an agreement for joint use of facilities and there were cooperative activities between the Philippine Air Force and the civil aviation industry. Many permanent airforce joined the civil aviation. As part of the MOA for the joint use and access and operations of the facilities for airport security; to assist each other for mandated missions and functions including training, search and rescue, flight safety and logistics.

In particular, there are articles in our laws that look onto joint trainings, just like Article 6 of the Defense Resolution. The airforce has set its technical people on job training. To date there are nine paramedics, 17 undergoing on the job training, and more. In terms of facilities, we built the clinic airforce ATO joint use committee where some air force personnel has access of it in Tagaytay.

CAAP hosts some of our operations group. They help in assisting our agency through search and rescue operations. In partnership with CAAP, we have engaged with civilian staff to further enhance our engagements and professional dealings. By and large, what the PAF is doing, to support civil aviation in the country. We hope the CAAP is doing the same with the PAF.

Implications to the Tourism Industry

Director General Alfonso Cusi, deemed that the civil aviation has partnered with the Department of Tourism (DOT) on local and international tourism. He believed that the airline industry must be given certain incentives in their operations in Mindanao, and he is promoting that.

DOT as well has been coordinating with CAAP. In fact, DOT seeks reports from CAAP to service Mindanao air routes. In terms of transport security, this is under the umbrella of OTS under the DOTC that looks at and ensures security. In the Philippines, we have MIAA and have police security that handles security of each airport. As part of security, we have comparable competence with our neighboring states and developed countries. This is an issue that is a continuing process.

Furthermore, Peter Wallace, stated that traveling in the Philippines has now become a common thing. The archipelago is vast but is connected by commercial airlines.

Plan in Modernizing CAAP

Dr. Amelia Ancog, however, commented that there is a plan for CAAP to modernize it as an authority into a corporation. Does this mean that your office once it becomes a corporation will render more income that would be used for buying facilities and employing people. Will it be like a GOCC. During the time of President Marcos, GOCCs have regulatory powers. Does this mean that your office as a corporation has become more efficient, viable, and stronger, asked.

General Alfonso Cusi, admitted that CAAP is a Government Corporation. It has a legal personality that under law the office has been given more teeth and power to renovate and regulate the aviation through transformation. The best way is create a body that is beyond politics. This is to professionalize the people and achieve international standards as prescribed internationally. We have to govern democratic regulations. The revenues must be used wisely. We must have money coming in to fund projects. We need to learn from the expats. There must be shared culture. I also believe in technology transfer. Use expertise of expats and Filipino professionals abroad.

But Dr Amelia Ancog, further inquired on the structural reform of CAAP, although she commended the structural changes done at CAAP.

General Cusi, accounted that in his experience from the private industry and later to the government, there must have an exchange of information. The work ethics are very different between the private and public sectors, respectively. Managers keep managing many things under pressure.

People, Process, and Facilities

Dr Nestor Pilar, probed on the three aspects of the aviation industry on people, process, and facilities to be affected by the corporization of CAAP. Queries ranged from who have greater control of facilities? Who allocates the facilities? The old facility is used by all international airlines, why is this so? Is it possible to be irreverent of international protocols?

As the heart of the topic, Director General Alfonso Cusi, said that with regards to the use of the airports, ours is very behind. The capacity of Terminal 1 is old enough. Terminal 2’s capacity is around six million but we are handling around eight million. So the terminals are congested. We have larger terminal that is the Domestic Terminal. Terminal 3, following the rules, must be closed. Some says it should be operational following the request of Cebu Pacific, thus, we invited others to use the terminal. The traffic that would be created must also be considered. Terminal 3 that it is partly open with 12 million has better capacity. There is a need to have a master plan for our airports.