Practice makes perfect. For law students, try to answer these questions to master critical thinking and take it as part of your review strategy. Link lifted from http://www.lawphil.net/.
September 6, 2009
POLITICAL LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. A law making "Bayan Ko" the new national anthem of the Philippines, in lieu of "Lupang Hinirang," is constitutional.
2. Under the archipelago doctrine, the waters around, between, and connecting the islands of the archipelago form part of the territorial sea of the archipelagic state.
3. A law that makes military service for women merely voluntary is constitutional.
4. A law fixing the passing grade in the Bar examinations at 70%, with no grade lower than 40% in any subject, is constitutional.
5. An educational institution 100% foreign-owned may be validly established in the Philippines.
II
Despite lingering questions about his Filipino citizenship and his one-year residence in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by law. His opponent, Vito, hires you as lawyer to contest Gabriel's candidacy.
1. Before election day, what action or actions will you institute against Gabriel, and before which court, commission or tribunal will you file such action/s? Reasons. (2%)
2. If, during the pendency of such action/s but before election day, Gabriel withdraws his certificate of candidacy, can he be substituted as candidate? If so, by whom and why? If not, why not? (2%)
3. If the action/s instituted should be dismissed with finality before the election, and Gabriel assumes office after being proclaimed the winner in the election, can the issue of his candidacy and/or citizenship and residence still be questioned? If so, what action or actions may be filed and where? If not, why not? (2%)
III
The Municipality of Bulalakaw, Leyte, passed Ordinance No. 1234, authorizing the expropriation of two parcels of land situated in the poblacion as the site of a freedom park, and appropriating the funds needed therefor. Upon review, the |Sangguniang Panlalawigan of Leyte disapproved the ordinance because the municipality has an existing freedom park which, though smaller in size, is still suitable for the purpose, and to pursue expropriation would be needless expenditure of the people's money. Is the disapproval of the ordinance correct? Explain your answer. (2%)
IV
The Municipality of Pinatukdao is sued for damages arising from injuries sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the municipal hall. The municipality files a motion to dismiss the complaint, invoking state immunity from suit. Resolve the motion with reasons. (3%)
V
To address the pervasive problem of gambling, Congress is considering the following options: (1) prohibit all forms of gambling; (2) allow gambling only on Sundays; (3) allow gambling only in government-owned casinos; and (4) remove all prohibitions against gambling but impose a tax equivalent to 30% on all winnings.
1. If Congress chooses the first option and passes the corresponding law absolutely prohibiting all forms of gambling, can the law be validly attacked on the ground that it is an invalid exercise of police power? Explain your answer. (2%)
2. If Congress chooses the last option and passes the corresponding law imposing a 30% tax on all winnings and prizes won from gambling, would the law comply with the constitutional limitations on the exercise of the power of taxation? Explain your answer. (2%)
VI
In a criminal prosecution for murder, the prosecution presented, as witness, an employee of the Manila Hotel who produced in court a videotape recording showing the heated exchange between the accused and the victim that took place at the lobby of the hotel barely 30 minutes before the killing. The accused objects to the admission of the videotape recording on the ground that it was taken without his knowledge or consent, in violation of his right to privacy and the Anti-Wire Tapping law. Resolve the objection with reasons. (3%)
VII
Crack agents of the Manila Police Anti-Narcotics Unit were on surveillance of a cemetery where the sale and use of prohibited drugs were rumored to be rampant. The team saw a man with reddish and glassy eyes walking unsteadily towards them, but he immediately veered away upon seeing the policemen. The team approached the man, introduced themselves as peace officers, then asked what he had in his clenched fist. Because the man refused to answer, a policeman pried the fist open and saw a plastic sachet filled with crystalline substance. The team then took the man into custody and submitted the contents of the sachet to forensic examination. The crystalline substance in the sachet turned out to be shabu. The man was accordingly charged in court.
During the trial, the accused:
1. challenged the validity of his arrest; (2%) and
2. objected to the admission in evidence of the prohibited drug, claiming that it was obtained in an illegal search and seizure. (2%)
Decide with reasons.
VIII
Congressman Nonoy delivered a privilege speech charging the Intercontinental Universal Bank (IUB) with the sale of unregistered foreign securities, in violation of R.A. 8799. He then filed, and the House of Representatives unanimously approved, a Resolution directing the House Committee on Good Government (HCGG) to conduct an inquiry on the matter, in aid of legislation, in order to prevent the recurrence of any similar fraudulent activity.
The HCGG immediately scheduled a hearing and invited the responsible officials of IUB, the Chairman and Commissioners of the Securities and Exchange Commission (SEC), and the Governor of the Bangko Sentral ng Pilipinas (BSP). On the date set for the hearing, only the SEC Commissioners appeared, prompting Congressman Nonoy to move for the issuance of the appropriate subpoena ad testificandum to compel the attendance of the invited resource persons.
The IUB officials filed suit to prohibit HCGG from proceeding with the inquiry and to quash the subpoena, raising the following arguments:
1. The subject of the legislative investigation is also the subject of criminal and civil actions pending before the courts and the prosecutor's office; thus, the legislative inquiry would preempt judicial action; (3%) and
2. Compelling the IUB officials, who are also respondents in the criminal and civil cases in court, to testify at the inquiry would violate their constitutional right against self-incrimination. (3%)
Are the foregoing arguments tenable? Reasons.
3. May the Governor of the BSP validly invoke executive privilege and, thus, refuse to attend the legislative inquiry? Why or why not? (3%)
IX
Warlito, a natural-born Filipino, took up permanent residence in the United States, and eventually acquired American citizenship. He then married Shirley, an American, and sired three children. In August 2009, Warlito decided to visit the Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr., 20; and Luisa, 17.
While in the Philippines, a friend informed him that he could reacquire Philippine citizenship without necessarily losing U.S. nationality. Thus, he took the oath of allegiance required under R.A. 9225.
1. Having reacquired Philippine citizenship, is Warlito a natural-born or a naturalized Filipino citizen today? Explain your answer. (3%)
2. With Warlito having regained Philippine citizenship, will Shirley also become a Filipino citizen? If so, why? If not, what would be the most speedy procedure for Shirley to acquire Philippine citizenship? Explain. (3%)
3. Do the children --- Johnny, Warlito Jr., and Luisa --- become Filipino citizens with their father's reacquisition of Philippine citizenship? Explain your answer. (3%)
X
Maximino, an employee of the Department of Education, is administratively charged with dishonesty and gross misconduct. During the formal investigation of the charges, the Secretary of Education preventively suspended him for a period of sixty (60) days. On the 60th day of the preventive suspension, the Secretary rendered a verdict, finding Maximino guilty, and ordered his immediate dismissal from the service.
Maximino appealed to the Civil Service Commission (CSC), which affirmed the Secretary's decision. Maximino then elevated the matter to the Court of Appeals (CA). The CA reversed the CSC decision, exonerating Maximino. The Secretary of Education then petitions the Supreme Court (SC) for the review of the CA decision.
1. Is the Secretary of Education a proper party to seek the review of the CA decision exonerating Maximino? Reasons. (2%)
2. If the SC affirms the CA decision, is Maximino entitled to recover back salaries corresponding to the entire period he was out of the service? Explain your answer. (3%)
PART II
XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. Aliens are absolutely prohibited from owning private lands in the Philippines.
2. A de facto public officer is, by right, entitled to receive the salaries and emoluments attached to the public office he holds.
3. The President exercises the power of control over all executive departments and agencies, including government-owned or controlled corporations.
4. Decisions of the Ombudsman imposing penalties in administrative disciplinary cases are merely recommendatory.
5. Dual citizenship is not the same as dual allegiance.
XII
William, a private American citizen, a university graduate and frequent visitor to the Philippines, was inside the U.S. embassy when he got into a heated argument with a private Filipino citizen. Then, in front of many shocked witnesses, he killed the person he was arguing with. The police came, and brought him to the nearest police station. Upon reaching the station, the police investigator, in halting English, informed William of his Miranda rights, and assigned him an independent local counsel. William refused the services of the lawyer, and insisted that he be assisted by a Filipino lawyer currently based in the U.S. The request was denied, and the counsel assigned by the police stayed for the duration of the investigation.
William protested his arrest.
1. He argued that since the incident took place inside the U.S. embassy, Philippine courts have no jurisdiction because the U.S. embassy grounds are not part of Philippine territory; thus, technically, no crime under Philippine law was committed. Is William correct? Explain your answer. (3%)
2. He also claimed that his Miranda rights were violated because he was not given the lawyer of his choice; that being an American, he should have been informed of his rights in proper English; and that he should have been informed of his rights as soon as he was taken into custody, not when he was already at the police station. Was William denied his Miranda rights? Why or why not? (3%)
3. If William applies for bail, claiming that he is entitled thereto under the "international standard of justice" and that he comes from a U.S. State that has outlawed capital punishment, should William be granted bail as a matter of right? Reasons. (3%)
XIII
A terrorist group called the Emerald Brigade is based in the State of Asyaland. The government of Asyaland does not support the terrorist group, but being a poor country, is powerless to stop it.
The Emerald Brigade launched an attack on the Philippines, firing two missiles that killed thousands of Filipinos. It then warned that more attacks were forthcoming. Through diplomatic channels, the Philippines demanded that Asyaland stop the Emerald Brigade; otherwise, it will do whatever is necessary to defend itself.
Receiving reliable intelligence reports of another imminent attack by the Emerald Brigade, and it appearing that Asyaland was incapable of preventing the assault, the Philippines sent a crack commando team to Asyaland. The team stayed only for a few hours in Asyaland, succeeded in killing the leaders and most of the members of the Emerald Brigade, then immediately returned to the Philippines.
1. Was the Philippine action justified under the international law principle of "self-defense"? Explain your answer. (3%)
2. As a consequence of the foregoing incident, Asyaland charges the Philippines with violation of Article 2.4 of the United Nations Charter that prohibits "the threat or use of force against the territorial integrity or political independence of any State." The Philippines counters that its commando team neither took any territory nor interfered in the political processes of Asyaland. Which contention is correct? Reasons. (3%)
3. Assume that the commando team captured a member of the Emerald Brigade and brought him back to the Philippines. The Philippine Government insists that a special international tribunal should try the terrorist. On the other hand, the terrorist argues that terrorism is not an international crime and, therefore, the municipal laws of the Philippines, which recognize access of the accused to constitutional rights, should apply. Decide with reasons. (3%)
XIV
The Philippine Government is negotiating a new security treaty with the United States which could involve engagement in joint military operations of the two countries' armed forces. A loose organization of Filipinos, the Kabataan at Matatandang Makabansa (KMM) wrote the Department of Foreign Affairs (DFA) and the Department of National Defense (DND) demanding disclosure of the details of the negotiations, as well as copies of the minutes of the meetings. The DFA and the DND refused, contending that premature disclosure of the offers and counter-offers between the parties could jeopardize on-going negotiations with another country. KMM filed suit to compel disclosure of the negotiation details, and be granted access to the records of the meetings, invoking the constitutional right of the people to information on matters of public concern.
1. Decide with reasons. (3%)
2. Will your answer be the same if the information sought by KMM pertains to contracts entered into by the Government in its proprietary or commercial capacity? Why or why not? (3%)
XV
The KKK Television Network (KKK-TV) aired the documentary, "Case Law: How the Supreme Court Decides," without obtaining the necessary permit required by P.D. 1986. Consequently, the Movie and Television Review and Classification Board (MTRCB) suspended the airing of KKK-TV programs. MTRCB declared that under P.D. 1986, it has the power of prior review over all television programs, except "newsreels" and programs "by the Government", and the subject documentary does not fall under either of these two classes. The suspension order was ostensibly based on Memorandum Circular No. 98-17 which grants MTRCB the authority to issue such an order.
KKK-TV filed a certiorari petition in court, raising the following issues:
1. The act of MTRCB constitutes "prior restraint" and violates the constitutionally guaranteed freedom of expression; (3%) and
2. While Memorandum Circular No. 98-17 was issued and published in a newspaper of general circulation, a copy thereof was never filed with the Office of the National Register of the University of the Philippines Law Center. (2%)
Resolve the foregoing issues, with reasons.
XVI
1. Angelina, a married woman, is a Division Chief in the Department of Science and Technology. She had been living with a married man, not her husband, for the last fifteen (15) years. Administratively charged with immorality and conduct prejudicial to the best interest of the service, she admits her live-in arrangement, but maintains that this conjugal understanding is in conformity with their religious beliefs. As members of the religious sect, Yahweh's Observers, they had executed a Declaration of Pledging Faithfulness which has been confirmed and blessed by their Council of Elders. At the formal investigation of the administrative case, the Grand Elder of the sect affirmed Angelina's testimony and attested to the sincerity of Angelina and her partner in the profession of their faith. If you were to judge this case, will you exonerate Angelina? Reasons. (3%)
2. Meanwhile, Jenny, also a member of Yahweh's Observers, was severely disappointed at the manner the Grand Elder validated what she considered was an obviously immoral conjugal arrangement between Angelina and her partner. Jenny filed suit in court, seeking the removal of the Grand Elder from the religious sect on the ground that his act in supporting Angelina not only ruined the reputation of their religion, but also violated the constitutional policy upholding the sanctity of marriage and the solidarity of the family. Will Jenny's case prosper? Explain your answer. (2%)
XVII
Filipinas Computer Corporation (FCC), a local manufacturer of computers and computer parts, owns a sprawling plant in a 5,000-square meter lot in Pasig City. To remedy the city's acute housing shortage, compounded by a burgeoning population, the Sangguniang Panglungsod authorized the City Mayor to negotiate for the purchase of the lot. The Sanggunian intends to subdivide the property into small residential lots to be distributed at cost to qualified city residents. But FCC refused to sell the lot. Hard pressed to find a suitable property to house its homeless residents, the City filed a complaint for eminent domain against FCC.
1. If FCC hires you as lawyer, what defense or defenses would you set up in order to resist the expropriation of the property? Explain. (5%)
2. If the Court grants the City's prayer for expropriation, but the City delays payment of the amount determined by the court as just compensation, can FCC recover the property from Pasig City? Explain. (2%)
3. Suppose the expropriation succeeds, but the City decides to abandon its plan to subdivide the property for residential purposes having found a much bigger lot, can FCC legally demand that it be allowed to repurchase the property from the City of Pasig? Why or why not? (2%)
XVIII
What are the essential elements of a valid petition for a people's initiative to amend the 1987 Constitution? Discuss. (2%)
LABOR LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. An employment contract prohibiting employment in a competing company within one year from separation is valid.
2. All confidential employees are disqualified to unionize for the purpose of collective bargaining.
3. A runaway shop is an act constituting unfair labor practice.
4. In the law on labor relations, the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement.
5. The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5,000.00.
II
1. Enumerate at least four (4) policies enshrined in Section 3, Article XIII of the Constitution that are not covered by Article 3 of the Labor Code on declaration of basic policy. (2%)
2. Clarito, an employee of Juan, was dismissed for allegedly stealing Juan’s wristwatch. In the illegal dismissal case instituted by Clarito, the Labor Arbiter, citing Article 4 of the Labor Code, ruled in favor of Clarito upon finding Juan’s testimony doubtful. On appeal, the NLRC reversed the Labor Arbiter holding that Article 4 applies only when the doubt involves "implementation and interpretation" of the Labor Code provisions. The NLRC explained that the doubt may not necessarily be resolved in favor of labor since this case involves the application of the Rules onEvidence, not the Labor Code. Is the NLRC correct? Reasons. (3%)
III
Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its principal, Mideast Recruitment Agency (MRA), to work in Qatar for a period of two (2) years. However, soon after the contract was approved by POEA, MRA advised SR to forego Richie’s deployment because it had already hired another Filipino driver-mechanic, who had just completed his contract in Qatar. Aggrieved, Richie filed with the NLRC a complaint against SR and MRA for damages corresponding to his two years’ salary under the POEA-approved contract.
SR and MRA traversed Richie’s complaint, raising the following arguments:
1. The Labor Arbiter has no jurisdiction over the case; (2%)
2. Because Richie was not able to leave for Qatar, no employer-employee relationship was established between them; (2%) and
3. Even assuming that they are liable, their liability would, at most, be equivalent to Richie’s salary for only six (6) months, not two years. (3%).
Rule on the validity of the foregoing arguments with reasons.
IV
Diosdado, a carpenter, was hired by Building Industries Corporation (BIC), and assigned to build a small house in Alabang. His contract of employment specifically referred to him as a "project employee," although it did not provide any particular date of completion of the project.
Is the completion of the house a valid cause for the termination of Diosdado’s employment? If so, what are the due process requirements that the BIC must satisfy? If not, why not? (3%)
V
1. Baldo was dismissed from employment for having beenabsent without leave (AWOL) for eight (8) months. It turned outthat the reason for his absence was his incarceration after he was mistaken as his neighbor’s killer. Eventually acquitted and released from jail, Baldo returned to his employer and demanded reinstatement and full backwages. Is Baldo entitled to reinstatement and backwages? Explain your answer. (3%)
2. Domingo, a bus conductor of San Juan Transportation Company, intentionally did not issue a ticket to a female passenger, Kim, his long-time crush. As a result, Domingo was dismissed from employment for fraud or willful breach of trust. Domingo contests his dismissal, claiming that he is not a confidential employee and, therefore, cannot be dismissed from the service for breach of trust. Is Domingo correct? Reasons. (2%)
VI
Albert, a 40-year old employer, asked his domestic helper, Inday, to give him a private massage. When Inday refused, Albert showed her Article 141 of the Labor Code, which says that one of the duties of a domestic helper is to minister to the employer’s personal comfort and convenience.
1. Is Inday’s refusal tenable? Explain. (3%)
2. Distinguish briefly, but clearly, a "househelper" from a "homeworker." (2%)
VII
Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labor organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received the notice of termination, the labor union went on strike.
Management filed an action to declare the strike illegal, contending that:
1. The union did not observe the "cooling-off period" mandated by the Labor Code; (2%) and
2. The union went on strike without complying with the strike-vote requirement under the Labor Code. (2%)
Rule on the foregoing contentions with reasons.
3. The Labor Arbiter found management guilty of unfair labor practice for the unlawful dismissal of Johnny. The decision became final. Thereafter, the NMMR filed a criminal case against the Manager of Manila Restaurant. Would the Labor Arbiter’s finding be sufficient to secure the Manager’s conviction? Why or why not? (2%)
VIII
Alexander, a security guard of Jaguar Security Agency (JSA), could not be given any assignment because no client would accept him. He had a face only a mother could love. After six (6) months of being on "floating" status, Alexander sued JSA for constructive dismissal. The Labor Arbiter upheld Alexander’s claim of constructive dismissal and ordered JSA to immediately reinstate Alexander. JSA appealed the decision to the NLRC. Alexander sought immediate enforcement of the reinstatement order while the appeal was pending.
JSA hires you as lawyer, and seeks your advice on the following:
1. Because JSA has no client who would accept Alexander, can it still be compelled to reinstate him pending appeal even if it has posted an appeal bond? (2%)
2. Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a writ of execution? (2%)
3. If the order of reinstatement is being enforced, what should JSA do in order to prevent reinstatement? (2%)
Explain your answers.
IX
1. What is wage distortion? Can a labor union invoke wage distortion as a valid ground to go on strike? Explain. (2%)
2. What procedural remedies are open to workers who seek correction of wage distortion? (2%)
X
1. State briefly the compulsory coverage of the Government Service Insurance Act. (2%)
2. Can a member of a cooperative be deemed an employee for purposes of compulsory coverage under the Social Security Act? Explain. (2%)
PART II
XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. Seafarers who have worked for twenty (20) years on board the same vessel are regular employees.
2. Employment of children below fifteen (15) years of age in any public or private establishment is absolutely prohibited.
3. Government employees have the right to organize and join concerted mass actions without incurring administrative liability.
4. A waiver of the right to claim overtime pay is contrary to law.
5. Agency fees cannot be collected from a non-union member in the absence of a written authorization signed by the worker concerned.
XII
In her State of the Nation Address, the President stressed the need to provide an investor-friendly business environment so that the country can compete in the global economy that now suffers from a crisis bordering on recession. Responding to the call, Congress passed two innovative legislative measures, namely: (1) a law abolishing the security of tenure clause in the Labor Code; and (2) a law allowing contractualization in all areas needed in the employer’s business operations. However, to soften the impact of these new measures, the law requires that all employers shall obtain mandatory unemployment insurance coverage for all their employees.
The constitutionality of the two (2) laws is challenged in court. As judge, how will you rule? (5%)
XIII
Atty. Renan, a CPA-lawyer and Managing Partner of an accounting firm, conducted the orientation seminar for newly-hired employees of the firm, among them, Miss Maganda. After the seminar, Renan requested Maganda to stay, purportedly to discuss
some work assignment. Left alone in the training room, Renan asked Maganda to go out with him for dinner and ballroom dancing. Thereafter, he persuaded her to accompany him to the mountain highway in Antipolo for sight-seeing. During all these, Renan told Maganda that most, if not all, of the lady supervisors in the firm are where they are now, in very productive and lucrative posts, because of his favorable endorsement.
1. Did Renan commit acts of sexual harassment in a work- related or employment environment? Reasons. (3%)
2. The lady supervisors in the firm, slighted by Renan’s revelations about them, succeeded in having him expelled from the firm. Renan then filed with the Arbitration Branch of the NLRC an illegal dismissal case with claims for damages against the firm. Will the case prosper? Reasons. (2%)
XIV
Jolli-Mac Restaurant Company (Jolli-Mac) owns and operates the largest food chain in the country. It engaged Matiyaga Manpower Services, Inc. (MMSI), a job contractor registered with the Department of Labor and Employment, to provide its restaurants the necessary personnel, consisting of cashiers, motorcycle delivery boys and food servers, in its operations. The Service Agreement warrants, among others, that MMSI has a paid- up capital of P2,000,000.00; that it would train and determine the qualification and fitness of all personnel to be assigned to Jolli- Mac; that it would provide these personnel with proper Jolli-Mac uniforms; and that it is exclusively responsible to these personnel for their respective salaries and all other mandatory statutory benefits.
After the contract was signed, it was revealed, based on research conducted, that MMSI had no other clients except Jolli- Mac, and one of its major owners was a member of the Board of Directors of Jolli-Mac.
1. Is the Service Agreement between Jolli-Mac and MMSI legal and valid? Why or why not? (3%)
2. If the cashiers, delivery boys and food servers are not paid their lawful salaries, including overtime pay, holiday pay, 13th month pay, and service incentive leave pay, against whom may these workers file their claims? Explain. (2%)
XV
Among the 400 regular rank-and-file workers of MNO Company, a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes:
1. Union A - 70
2. Union B - 71
3. Union C - 42
4. Union D - 33
5. No union - 180
6. Spoiled votes - 4
There were no objections or challenges raised by any party on the results of the election.
1. Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company considering that it garnered the highest number of votes among the contending unions? Why or why not? (3%)
2. May the management or lawyer of MNO Company legally ask for the absolute termination of the certification election proceedings because 180 of the workers --- a clear plurality of the voters --- have chosen not to be represented by any union? Reasons. (3%)
3. If you were the duly designated election officer in this case, what would you do to effectively achieve the purpose of certification election proceedings? Discuss. (3%)
XVI
The Company and Triple-X Union, the certified bargaining agent of rank-and-file employees, entered into a Collective Bargaining Agreement (CBA) effective for the period January 1, 2002 to December 31, 2007.
For the 4th and 5th years of the CBA, the significant
improvements in wages and other benefits obtained by the Union were:
1) Salary increases of P1,000 and P1,200 monthly, effective January 1, 2006 and January 1, 2007, respectively;
2) Vacation Leave and Sick Leave were adjusted from 12 days to 15 days annually for each employee;
3) Medical subsidy of P3,000 per year for the purchase of medicines and hospitalization assistance of P10,000 per year for actual hospital confinement;
4) Rice Subsidy of P600 per month, provided the employee has worked for at least 20 days within the particular month; and
5) Birthday Leave with Pay and Birthday Gift of P1,500.
As early as October 2007, the Company and the Union started negotiations to renew the CBA. Despite mutual good faith and earnest efforts, they could not agree. However, no union filed a petition for certification election during the freedom period. On March 30, 2008, no CBA had been concluded. Management learned that the Union would declare a bargaining deadlock on the next scheduled bargaining meeting.
As expected, on April 3, 2008, the Union declared a deadlock. In the afternoon of the same day, management issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be implemented, effective immediately.
1. When was the "freedom period" referred to in the foregoing narration of facts? Explain. (2%)
2. After April 3, 2008, will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper? Reasons. (3%)
3. Is management’s withdrawal of the fringe benefits valid?
Reasons. (2%)
4. If you were the lawyer for the union, what legal recourse or action would you advise? Reasons. (3%)
XVII
Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that although there may be just cause, he was not afforded due process by management prior to his termination. He demands reinstatement with full backwages.
1. What are the twin requirements of due process which the employer must observe in terminating or dismissing an employee? Explain. (3%)
2. Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%)
XVIII
1. Cite four (4) instances when an illegally dismissed employee may be awarded separation pay in lieu of reinstatement. (3%)
2. Explain the impact of the union security clause to the employees’ right to security of tenure. (2%)
September 13, 2009
CIVIL LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. The doctrine of "processual presumption" allows the court of the forum to presume that the foreign law applicable to the case is the same as the local or domestic law.
2. In reserva troncal, all reservatarios (reservees) inherit as a class and in equal shares regardless of their proximity in degree to the prepositus.
3. An oral partnership is valid.
4. An oral promise of guaranty is valid and binding.
5. A dead child can be legitimated.
II
Dr. Lopez, a 70-year old widower, and his son Roberto both died in a fire that gutted their home while they were sleeping in their air-conditioned rooms. Roberto’s wife, Marilyn, and their two children were spared because they were in the province at the time. Dr. Lopez left an estate worth P20M and a life insurance policy in the amount of P1M with his three children --- one of whom is Roberto --- as beneficiaries.
Marilyn is now claiming for herself and her children her husband’s share in the estate left by Dr. Lopez, and her husband’s share in the proceeds of Dr. Lopez’s life insurance policy. Rule on the validity of Marilyn’s claims with reasons. (4%)
III
In December 2000, Michael and Anna, after obtaining a valid marriage license, went to the Office of the Mayor of Urbano, Bulacan, to get married. The Mayor was not there, but the Mayor’s secretary asked Michael and Anna and their witnesses to fill up and sign the required marriage contract forms. The secretary then told them to wait, and went out to look for the Mayor who was attending a wedding in a neighboring municipality.
When the secretary caught up with the Mayor at the wedding reception, she showed him the marriage contract forms and told him that the couple and their witnesses were waiting in his office. The Mayor forthwith signed all the copies of the marriage contract, gave them to the secretary who returned to the Mayor’s office. She then gave copies of the marriage contract to the parties, and told Michael and Anna that they were already married. Thereafter, the couple lived together as husband and wife, and had three sons.
1. Is the marriage of Michael and Anna valid, voidable, or void? Explain your answer. (3%)
2. What is the status of the three children of Michael and Anna? Explain your answer. (2%)
3. What property regime governs the properties acquired by the couple? Explain. (2%)
IV
Harry married Wilma, a very wealthy woman. Barely five (5) years into the marriage, Wilma fell in love with Joseph. Thus, Wilma went to a small country in Europe, became a naturalized citizen of that country, divorced Harry, and married Joseph. A year thereafter, Wilma and Joseph returned and established permanent residence in the Philippines.
1. Is the divorce obtained by Wilma from Harry recognized in the Philippines? Explain your answer. (3%)
2. If Harry hires you as his lawyer, what legal recourse would you advise him to take? Why? (2%)
3. Harry tells you that he has fallen in love with another woman, Elizabeth, and wants to marry her because, after all, Wilma is already married to Joseph. Can Harry legally marry Elizabeth? Explain. (2%)
V
Four children, namely: Alberto, Baldomero, Caridad, and Dioscoro, were born to the spouses Conrado and Clarita de la Costa. The children’s birth certificates were duly signed by Conrado, showing them to be the couple’s legitimate children.
Later, one Edilberto de la Cruz executed a notarial document acknowledging Alberto and Baldomero as his illegitimate children >with Clarita. Edilberto died leaving substantial properties. In the settlement of his estate, Alberto and Baldomero intervened claiming shares as the deceased’s illegitimate children. The legitimate family of Edilberto opposed the claim.
Are Alberto and Baldomero entitled to share in the estate of Edilberto? Explain. (4%)
VI
On December 1, 2000, Dr. Juanito Fuentes executed a holographic will, wherein he gave nothing to his recognized illegitimate son, Jay. Dr. Fuentes left for the United States, passed the New York medical licensure examinations, resided therein, and became a naturalized American citizen. He died in New York in 2007. The laws of New York do not recognize holographic wills or compulsory heirs.
1. Can the holographic will of Dr. Fuentes be admitted to probate in the Philippines? Why or why not? (3%)
2. Assuming that the will is probated in the Philippines, can Jay validly insist that he be given his legitime? Why or why not? (3%)
VII
Ramon Mayaman died intestate, leaving a net estate of P10,000,000.00. Determine how much each heir will receive from the estate:
1. If Ramon is survived by his wife, three full-blood brothers, two half-brothers, and one nephew (the son of a deceased full-blood brother)? Explain. (3%)
2. If Ramon is survived by his wife, a half-sister, and three nephews (sons of a deceased full-blood brother)? Explain. (3%)
VIII
Jude owned a building which he had leased to several tenants. Without informing his tenants, Jude sold the building to Ildefonso. Thereafter, the latter notified all the tenants that he is the new owner of the building. Ildefonso ordered the tenants to vacate the premises within thirty (30) days from notice because he had other plans for the building. The tenants refused to vacate, insisting that they will only do so when the term of their lease shall have expired. Is Ildefonso bound to respect the lease contracts between Jude and his tenants? Explain your answer. (3%)
IX
Before migrating to Canada in 1992, the spouses Teodoro and Anita entrusted all their legal papers and documents to their nephew, Atty. Tan. Taking advantage of the situation, Atty. Tan forged a deed of sale, making it appear that he had bought the couple’s property in Quezon City. In 2000, he succeeded in obtaining a TCT over the property in his name. Subsequently, Atty. Tan sold the same property to Luis, who built an auto repair shop on the property. In 2004, Luis registered the deed of conveyance, and title over the property was transferred in his name.
In 2006, the spouses Teodoro and Anita came to the Philippines for a visit and discovered what had happened to their property. They immediately hire you as lawyer. What action or actions will you institute in order to vindicate their rights? Explain fully. (4%)
X
Rommel’s private car, while being driven by the regular family driver, Amado, hits a pedestrian causing the latter’s death. Rommel is not in the car when the incident happened.
1. Is Rommel liable for damages to the heirs of the deceased? Explain. (2%)
2. Would your answer be the same if Rommel was in the car at the time of the accident? Explain. (2%)
PART II
XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. A clause in an arbitration contract granting one of the parties the power to choose more arbitrators than the other renders the arbitration contract void.
2. If there is no marriage settlement, the salary of a "spouse" in an adulterous marriage belongs to the conjugal partnership of gains.
3. Acquisitive prescription of a negative easement runs from the time the owner of the dominant estate forbids, in a notarized document, the owner of the servient estate from executing an act which would be lawful without the easement.
4. The renunciation by a co-owner of his undivided share in the co-owned property in lieu of the performance of his obligation to contribute to taxes and expenses for the preservation of the property constitutes dacion en pago.
5. A person can dispose of his corpse through an act intervivos.
XII
Emmanuel and Margarita, American citizens and employees of the U.S. State Department, got married in the African state of Kenya where sterility is a ground for annulment of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in Manila. On the first year of the spouses’ tour of duty in the Philippines, Margarita filed an annulment case against Emmanuel before a Philippine court on the ground of her husband’s sterility at the time of the celebration of the marriage.
1. Will the suit prosper? Explain your answer. (3%)
2. Assume Emmanuel and Margarita are both Filipinos. After their wedding in Kenya, they come back and take up residence in the Philippines. Can their marriage be annulled on the ground of Emmanuel’s sterility? Explain. (3%)
XIII
Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one-year old foundling who had a severe heart ailment. During the pendency of the adoption proceedings, Rafael died of natural causes. The Office of the Solicitor General files a motion to dismiss the petition on the ground that the case can no longer proceed because of the petitioner’s death.
1. Should the case be dismissed? Explain. (2%)
2. Will your answer be the same if it was Dolly who died during the pendency of the adoption proceedings? Explain. (2%)
XIV
Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year old girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital and other medical expenses in delivering the child by caesarean section; moral, claiming that Rodolfo promised to marry her, representing that he was single when, in fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios.
1. If you were the judge, would you award all the claims of Nanette? Explain. (3%)
2. Suppose Rodolfo later on acknowledges Rona and gives her regular support, can he compel her to use his surname? Why or why not? (2%)
3. When Rona reaches seven (7) years old, she tells Rodolfo that she prefers to live with him, because he is better off financially than Nanette. If Rodolfo files an action for the custody of Rona, alleging that he is Rona’s choice as custodial parent, will the court grant Rodolfo’s petition? Why or why not? (2%)
XV
Sarah had a deposit in a savings account with Filipino Universal Bank in the amount of five million pesos (P5,000,000.00). To buy a new car, she obtained a loan from the same bank in the amount of P1,200,000.00, payable in twelve monthly installments. Sarah issued in favor of the bank post-dated checks, each in the amount of P100,000.00, to cover the twelve monthly installment payments. On the third, fourth and fifth months, the corresponding checks bounced.
The bank then declared the whole obligation due, and proceeded to deduct the amount of one million pesos (P1,000,000.00) from Sarah’s deposit after notice to her that this is a form of compensation allowed by law. Is the bank correct? Explain. (4%)
XVI
Marciano is the owner of a parcel of land through which a river runs out into the sea. The land had been brought under the Torrens System, and is cultivated by Ulpiano and his family as farmworkers therein. Over the years, the river has brought silt and sediment from its sources up in the mountains and forests so that gradually the land owned by Marciano increased in area by three hectares. Ulpiano built three huts on this additional area, where he and his two married children live. On this same area, Ulpiano and his family planted peanuts, monggo beans and vegetables. Ulpiano also regularly paid taxes on the land, as shown by tax declarations, for over thirty years.
When Marciano learned of the increase in the size of the land, he ordered Ulpiano to demolish the huts, and demanded that he be paid his share in the proceeds of the harvest. Marciano claims that under the Civil Code, the alluvium belongs to him as a registered riparian owner to whose land the accretion attaches, and that his right is enforceable against the whole world.
1. Is Marciano correct? Explain. (3%)
2. What rights, if any, does Ulpiano have against Marciano? Explain. (3%)
XVII
Rosario obtained a loan of P100,000.00 from Jennifer, and pledged her diamond ring. The contract signed by the parties stipulated that if Rosario is unable to redeem the ring on due date, she will execute a document in favor of Jennifer providing that the ring shall automatically be considered full payment of the loan.
1. Is the contract valid? Explain. (3%)
2. Will your answer to [a] be the same if the contract stipulates that upon failure of Rosario to redeem the ring on due date, Jennifer may immediately sell the ring and appropriate the entire proceeds thereof for herself as full payment of the loan? Reasons. (3%)
XVIII
The Ifugao Arms is a condominium project in Baguio City. A strong earthquake occurred which left huge cracks in the outer walls of the building. As a result, a number of condominium units were rendered unfit for use. May Edwin, owner of one of the condominium units affected, legally sue for partition by sale of the whole project? Explain. (4%)
XIX
In 1972, Luciano de la Cruz sold to Chua Chung Chun, a Chinese citizen, a parcel of land in Binondo. Chua died in 1990, leaving behind his wife and three children, one of whom, Julian, is a naturalized Filipino citizen. Six years after Chua’s death, the heirs executed an extrajudicial settlement of estate, and the parcel of land was allocated to Julian. In 2007, Luciano filed suit to recover the land he sold to Chua, alleging that the sale was void because it contravened the Constitution which prohibits the sale of private lands to aliens. Julian moved to dismiss the suit on grounds of pari delicto, laches and acquisitive prescription. Decide the case with reasons. (4%)
XX
1. If Ligaya, a Filipino citizen residing in the United States, files a petition for change of name before the District Court of New York, what law shall apply? Explain. (2%)
2. If Henry, an American citizen residing in the Philippines, files a petition for change of name before a Philippine court, what law shall apply? Explain. (2%)
TAXATION LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. A law that allows taxes to be paid either in cash or in kind is valid.
2. When the financial position of the taxpayer demonstrates a clear inability to pay the tax, the Commissioner of Internal Revenue may validly compromise the tax liability.
3. The doctrine of equitable recoupment allows a taxpayer whose claim for refund has prescribed to offset tax liabilities with his claim of overpayment.
4. A law imposing a tax on income of religious institutions derived from the sale of religious articles is valid.
5. A false return and a fraudulent return are one and the same.
II
Enumerate the four (4) inherent limitations on taxation. Explain each item briefly. (4%)
III
Melissa inherited from her father a 300-square-meter lot. At the time of her father's death on March 14, 1995, the property was valued at P720,000.00. On February 28, 1996, to defray the cost of the medical expenses of her sick son, she sold the lot for P600,000.00, on cash basis. The prevailing market value of the property at the time of the sale was P3,000.00 per square meter.
1. Is Melissa liable to pay capital gains tax on the transaction? If so, how much and why? If not, why not? (4%)
2. Is Melissa liable to pay Value Added Tax (VAT) on the sale of the property? If so, how much and why? If not, why not? (4%)
IV
International Technologies, Inc. (ITI) filed a claim for refund for unutilized input VAT with the Court of Tax Appeals (CTA). In the course of the trial, ITI engaged the services of an independent Certified Public Accountant (CPA) who examined the voluminous invoices and receipts of ITI. ITI offered in evidence only the summary prepared by the CPA, without the invoices and the receipts, and then submitted the case for decision.
Can the CTA grant ITI's claim for refund based only on the CPA's summary? Explain. (4%)
V
Jessie brought into the Philippines a foreign-made luxury car, and paid less than the actual taxes and duties due. Due to the discrepancy, the Bureau of Customs instituted seizure proceedings and issued a warrant of seizure and detention. The car, then parked inside a pay parking garage, was seized and brought by government agents to a government impounding facility. The Collector of Customs denied Jessie's request for the withdrawal of the warrant.
Aggrieved, Jessie filed against the Collector a criminal complaint for usurpation of judicial functions on the ground that only a judge may issue a warrant of search and seizure.
1. Resolve with reasons Jessie's criminal complaint. (4%)
2. Would your answer be the same if the luxury car was seized while parked inside the garage of Jessie's residence? Why or why not? (4%)
VI
The Sangguniang Bayan of the Municipality of Sampaloc, Quezon, passed an ordinance imposing a storage fee of ten centavos (P0.10) for every 100 kilos of copra deposited in any bodega within the Municipality's jurisdiction. The Metropolitan Manufacturing Corporation (MMC), with principal office in Makati, is engaged in the manufacture of soap, edible oil, margarine, and other coconut oil-based products. It has a warehouse in Sampaloc, Quezon, used as storage space for the copra purchased in Sampaloc and nearby towns before the same is shipped to Makati. MMC goes to court to challenge the validity of the ordinance, demanding the refund of the storage fees it paid under protest.
Is the ordinance valid? Explain your answer. (4%)
VII
Kenya International Airlines (KIA) is a foreign corporation, organized under the laws of Kenya. It is not licensed to do business in the Philippines. Its commercial airplanes do not operate within Philippine territory, or service passengers embarking from Philippine airports. The firm is represented in the Philippines by its general agent, Philippine Airlines (PAL), a Philippine corporation.
KIA sells airplane tickets through PAL, and these tickets are serviced by KIA airplanes outside the Philippines. The total sales of airline tickets transacted by PAL for KIA in 1997 amounted to P2,968,156.00. The Commissioner of Internal Revenue assessed KIA deficiency income taxes at the rate of 35% on its taxable income, finding that KIA's airline ticket sales constituted income derived from sources within the Philippines.
KIA filed a protest on the ground that the P2,968,156.00 should be considered as income derived exclusively from sources outside the Philippines since KIA only serviced passengers outside Philippine territory.
Is the position of KIA tenable? Reasons. (4%)
VII
Kenya International Airlines (KIA) is a foreign corporation, organized under the laws of Kenya. It is not licensed to do business in the Philippines. Its commercial airplanes do not operate within Philippine territory, or service passengers embarking from Philippine airports. The firm is represented in the Philippines by its general agent, Philippine Airlines (PAL), a Philippine corporation.
KIA sells airplane tickets through PAL, and these tickets are serviced by KIA airplanes outside the Philippines. The total sales of airline tickets transacted by PAL for KIA in 1997 amounted to P2,968,156.00. The Commissioner of Internal Revenue assessed KIA deficiency income taxes at the rate of 35% on its taxable income, finding that KIA's airline ticket sales constituted income derived from sources within the Philippines.
KIA filed a protest on the ground that the P2,968,156.00 should be considered as income derived exclusively from sources outside the Philippines since KIA only serviced passengers outside Philippine territory.
Is the position of KIA tenable? Reasons. (4%)
VIII
The City of Manila enacted Ordinance No. 55-66 which imposes a municipal occupation tax on persons practicing various professions in the city. Among those subjected to the occupation tax were lawyers. Atty. Mariano Batas, who has a law office in Manila, pays the ordinance-imposed occupation tax under protest. He goes to court to assail the validity of the ordinance for being discriminatory. Decide with reasons. (3%)
IX
Republic Power Corporation (RPC) is a government-owned and controlled corporation engaged in the supply, generation and transmission of electric power. In 2005, in order to provide electricity to Southern Tagalog provinces, RPC entered into an agreement with Jethro Energy Corporation (JEC), for the lease of JEC's power barges which shall be berthed at the port of Batangas City. The contract provides that JEC shall own the power barges and the fixtures, fittings, machinery, and equipment therein, all of which JEC shall supply at its own cost, and that JEC shall operate, manage and maintain the power barges for the purpose of converting the fuel of RPC into electricity. The contract also stipulates that all real estate taxes and assessments, rates and other charges, in respect of the power barges, shall be for the account of RPC.
In 2007, JEC received an assessment of real property taxes on the power barges from the Assessor of Batangas City. JEC sought reconsideration of the assessment on the ground that the power barges are exempt from real estate taxes under Section 234 [c] of R.A. 7160 as they are actually, directly and exclusively used by RPC, a government-owned and controlled corporation. Furthermore, even assuming that the power barges are subject to real property tax, RPC should be held liable therefor, in accordance with the terms of the lease agreement. Is the contention of JEC correct? Explain your answer. (4%)
X
ABCD Corporation (ABCD) is a domestic corporation with individual and corporate shareholders who are residents of the United States. For the 2nd quarter of 1983, these U.S.-based individual and corporate stockholders received cash dividends from the corporation. The corresponding withholding tax on dividend income --- 30% for individual and 35% for corporate non-resident stockholders --- was deducted at source and remitted to the BIR.
On May 15, 1984, ABCD filed with the Commissioner of Internal Revenue a formal claim for refund, alleging that under the RP-US Tax Treaty, the deduction withheld at source as tax on dividends earned was fixed at 25% of said income. Thus, ABCD asserted that it overpaid the withholding tax due on the cash dividends given to its non-resident stockholders in the U.S. The Commissioner denied the claim.
On January 17, 1985, ABCD filed a petition with the Court of Tax Appeals (CTA) reiterating its demand for refund.
1. Does ABCD Corporation have the legal personality to file the refund on behalf of its non-resident stockholders? Why or why not? (3%)
2. Is the contention of ABCD Corporation correct? Why or why not? (3%)
PART II
XI
Raffy and Wena, husband and wife, are both employed by XXX Corporation. After office hours, they jointly manage a coffee shop at the ground floor of their house. The coffee shop is registered in the name of both spouses. Which of the following is the correct way to prepare their income tax return? Write the letter only. DO NOT EXPLAIN YOUR ANSWER. (2%)
1. Raffy will declare as his income the salaries of both spouses, while Wena will declare the income from the coffee shop.
2. Wena will declare the combined compensation income of the spouses, and Raffy will declare the income from the coffee shop.
3. All the income will be declared by Raffy alone, because only one consolidated return is required to be filed by the spouses.
4. Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Each spouse shall be taxed separately on their corresponding taxable income to be covered by one consolidated return for the spouses.
5. Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Raffy will file one income tax return to cover all the income of both spouses, and the tax is computed on the aggregate taxable income of the spouses.
XII
YYY Corporation engaged the services of the Manananggol Law Firm in 2006 to defend the corporation's title over a property used in the business. For the legal services rendered in 2007, the law firm billed the corporation only in 2008. The corporation duly paid.
YYY Corporation claimed this expense as a deduction from gross income in its 2008 return, because the exact amount of the expense was determined only in 2008. Is YYY's claim of deduction proper? Reasons. (4%)
XIII
In 1999, Xavier purchased from his friend, Yuri, a painting for P500,000.00. The fair market value (FMV) of the painting at the time of the purchase was P1-million. Yuri paid all the corresponding taxes on the transaction. In 2001, Xavier died. In his last will and testament, Xavier bequeathed the painting, already worth P1.5-million, to his only son, Zandro. The will also granted Zandro the power to appoint his wife, Wilma, as successor to the painting in the event of Zandro's death. Zandro died in 2007, and Wilma succeeded to the property.
1. Should the painting be included in the gross estate of Xavier in 2001 and thus, be subject to estate tax? Explain. (3%)
2. Should the painting be included in the gross estate of Zandro in 2007 and thus, be subject to estate tax? Explain. (3%)
3. May a vanishing deduction be allowed in either or both of the estates? Explain. (3%)
XIV
Emiliano Paupahan is engaged in the business of leasing out several residential apartment units he owns. The monthly rental for each unit ranges from P8,000.00 to P10,000.00. His gross rental income for one year is P1,650,000.00. He consults you on whether it is necessary for him to register as a VAT taxpayer. What legal advice will you give him, and why? (4%)
XV
Miguel, a citizen and resident of Mexico, donated US$1,000.00 worth of stocks in Barack Motors Corporation, a Mexican company, to his legitimate son, Miguelito, who is residing in the Philippines and about to be married to a Filipino girlfriend. Mexico does not impose any transfer tax of whatever nature on all gratuitous transfers of property.
1. Is Miguel entitled to claim a dowry exclusion? Why or why not? (3%)
2. Is Miguel entitled to the rule of reciprocity in order to be exempt from the Philippine donor's tax? Why or why not? (3%)
XVI
Ernesto, a Filipino citizen and a practicing lawyer, filed his income tax return for 2007 claiming optional standard deductions. Realizing that he has enough documents to substantiate his profession-connected expenses, he now plans to file an amended income tax return for 2007, in order to claim itemized deductions, since no audit has been commenced by the BIR on the return he previously filed. Will Ernesto be allowed to amend his return? Why or why not? (4%)
XVII
A final assessment notice was issued by the BIR on June 13, 2000, and received by the taxpayer on June 15, 2000. The taxpayer protested the assessment on July 31, 2000. The protest was initially given due course, but was eventually denied by the Commissioner of Internal Revenue in a decision dated June 15, 2005. The taxpayer then filed a petition for review with the Court of Tax Appeals (CTA), but the CTA dismissed the same.
1. Is the CTA correct in dismissing the petition for review? Explain your answer. (4%)
2. Assume that the CTA's decision dismissing the petition for review has become final. May the Commissioner legally enforce collection of the delinquent tax? Explain. (4%)
XVIII
A taxpayer received an assessment notice from the BIR on February 3, 2009. The following day, he filed a protest, in the form of a request for reinvestigation, against the assessment and submitted all relevant documents in support of the protest. On September 11, 2009, the taxpayer, apprehensive because he had not yet received notice of a decision by the Commissioner on his protest, sought your advice.
What remedy or remedies are available to the taxpayer? Explain. (4%)
XIX
Johnny transferred a valuable 10-door commercial apartment to a designated trustee, Miriam, naming in the trust instrument Santino, Johnny's 10-year old son, as the sole beneficiary. The trustee is instructed to distribute the yearly rentals amounting to P720,000.00. The trustee consults you if she has to pay the annual income tax on the rentals received from the commercial apartment.
1. What advice will you give the trustee? Explain. (3%)
2. Will your advice be the same if the trustee is directed to accumulate the rental income and distribute the same only when the beneficiary reaches the age of majority? Why or why not? (3%)
XX
Masarap Food Corporation (MFC) incurred substantial advertising expenses in order to protect its brand franchise for one of its line products. In its income tax return, MFC included the advertising expense as deduction from gross income, claiming it as an ordinary business expense. Is MFC correct? Explain. (3%)
September 20, 2009
MERCHANTILE LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. The Denicola Test in intellectual property law states that if design elements of an article reflect a merger of aesthetic and functional considerations, the artistic aspects of the work cannot be conceptually separable from the utilitarian aspects; thus, the article cannot be copyrighted.
2. If the Ombudsman is convinced that there is a violation of law after investigating a complaint alleging illicit bank deposits of a public officer, the Ombudsman may order the bank concerned to allow in camera inspection of bank records and documents.
3. Even if the seller and the buyer in a sale in bulk violate the Bulk Sales Law, the sale would still be valid.
4. Dividends on shares of stocks can only be declared out of unrestricted retained earnings of the corporation.
5. A bank under receivership can still grant new loans and accept new deposits.
II
Atlantis Realty Corporation (ARC), a local firm engaged in real estate development, plans to sell one of its prime assets --- a three-hectare land valued at about P100-million. For this purpose, the board of directors of ARC unanimously passed a resolution approving the sale of the property for P75-million to Shangrila Real Estate Ventures (SREV), a rival realty firm. The resolution also called for a special stockholders meeting at which the proposed sale would be up for ratification.
Atty. Edric, a stockholder who owns only one (1) share in ARC, wants to stop the sale. He then commences a derivative suit for and in behalf of the corporation, to enjoin the board of directors and the stockholders from approving the sale.
1. Can Atty. Edric, who owns only one (1) share in the company, initiate a derivative suit? Why or why not? (2%)
2. If such a suit is commenced, would it constitute an intra-corporate dispute? If so, why and where would such a suit be filed? If not, why not? (2%)
3. Will the suit prosper? Why or why not? (3%)
III
Armando, a resident of Manila, borrowed P3-million from Bernardo, offering as security his 500 shares of stock worth P1.5-million in Xerxes Corporation, and his 2007 BMW sedan, valued at P2-million. The mortgage on the shares of stock was registered in the Office of the Register of Deeds of Makati City where Xerxes Corporation has its principal office. The mortgage on the car was registered in the Office of the Register of Deeds of Manila. Armando executed a single Affidavit of Good Faith, covering both mortgages.
Armando defaulted on the payment of his obligation; thus, Bernardo foreclosed on the two chattel mortgages. Armando filed suit to nullify the foreclosure and the mortgages, raising the following issues:
1. The execution of only one Affidavit of Good Faith for both mortgages invalidated the two mortgages; (2%) and
2. The mortgage on the shares of stocks should have been registered in the Office of the Register of Deeds of Manila where he resides, as well as in the stock and transfer book of Xerxes Corporation. (3%)
Rule on the foregoing issues with reasons.
3. Assume that Bernardo extrajudicially foreclosed on the mortgages, and both the car and the shares of stock were sold at public auction. If the proceeds from such public sale should be P1-million short of Armando’s total obligation, can Bernardo recover the deficiency? Why or why not? (2%)
IV
Antarctica Life Assurance Corporation (ALAC) publicly offered a specially designed insurance policy covering persons between the ages of 50 to 75 who may be afflicted with serious and debilitating illnesses. Quirico applied for insurance coverage, stating that he was already 80 years old. Nonetheless, ALAC approved his application.
Quirico then requested ALAC for the issuance of a cover note while he was trying to raise funds to pay the insurance premium. ALAC granted the request. Ten days after he received the cover note, Quirico had a heart seizure and had to be hospitalized. He then filed a claim on the policy.
1. Can ALAC validly deny the claim on the ground that the insurance coverage, as publicly offered, was available only to persons 50 to 75 years of age? Why or why not? (2%)
2. Did ALAC’s issuance of a cover note result in the perfection of an insurance contract between Quirico and ALAC? Explain. (3%)
V
Cecilio is planning to put up a grocery store in the subdivision where he and his family reside. To promote this proposed business venture, he told his wife and three children to send out promotional text messages to all the residents in the subdivision. Cecilio’s family members did as instructed, and succeeded in reaching, through text messages, more than 80% of the residents in the subdivision.
Is Cecilio habitually engaged in commerce even if the grocery store has yet to be established? Explain your answer. (3%)
VI
Lorenzo drew a bill of exchange in the amount of P100,000.00 payable to Barbara or order, with his wife, Diana, as drawee. At the time the bill was drawn, Diana was unaware that Barbara is Lorenzo’s paramour.
Barbara then negotiated the bill to her sister, Elena, who paid for it for value, and who did not know who Lorenzo was. On due date, Elena presented the bill to Diana for payment, but the latter promptly dishonored the instrument because, by then, Diana had already learned of her husband’s dalliance.
1. Was the bill lawfully dishonored by Diana? Explain. (3%)
2. Does the illicit cause or consideration adversely affect the negotiability of the bill? Explain. (3%)
VII
Global Transport Services, Inc. (GTSI) operates a fleet of cargo vessels plying interisland routes. One of its vessels, MV Dona Juana, left the port of Manila for Cebu laden with, among other goods, 10,000 television sets consigned to Romualdo, a TV retailer in Cebu.
When the vessel was about ten nautical miles away from Manila, the ship captain heard on the radio that a typhoon which, as announced by PAG-ASA, was on its way out of the country, had suddenly veered back into Philippine territory. The captain realized that MV Dona Juana would traverse the storm’s path, but decided to proceed with the voyage. True enough, the vessel sailed into the storm. The captain ordered the jettison of the 10,000 television sets, along with some other cargo, in order to lighten the vessel and make it easier to steer the vessel out of the path of the typhoon. Eventually, the vessel, with its crew intact, arrived safely in Cebu.
1. Will you characterize the jettison of Romualdo’s TV sets as an average? If so, what kind of an average, and why? If not, why not? (3%)
2. Against whom does Romualdo have a cause of action for indemnity of his lost TV sets? Explain. (3%)
VIII
Maharlikang Pilipino Banking Corporation (MPBC) operates several branches of Maharlikang Pilipino Rural Bank in Eastern Visayas. Almost all the branch managers are close relatives of the members of the Board of Directors of the corporation. Many undeserving relatives of the branch managers were granted loans. In time, the branches could not settle their obligations to depositors and creditors.
Receiving reports of these irregularities, the Supervising and Examining Department (SED) of the Monetary Board prepared a detailed report (SED Report) specifying the facts and the chronology of events relative to the problems that beset MPBC rural bank branches. The report concluded that the bank branches were unable to pay their liabilities as they fell due, and could not possibly continue in business without incurring substantial losses to its depositors and creditors.
1. May the Monetary Board order the closure of the MPBC rural banks relying only on the SED Report, without need of an examination? Explain. (3%)
2. If MPBC hires you as lawyer because the Monetary Board has forbidden it from carrying on its business due to its imminent insolvency, what action will you institute to question the Monetary Board’s order? Explain. (3%)
IX
When is there an ultra vires act on the part of [a] the corporation; [b] the board of directors; and [c] the corporate officers. (3%)
X
What are the so-called exempt securities under the Securities Regulation Code? (2%)
PART II
XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. A loan agreement which provides that the debtor shall pay interest at the rate determined by the bank’s branch manager violates the disclosure requirement of the Truth in Lending Act.
2. Under the Warehouse Receipts Law, a warehouseman loses his lien upon the goods when he surrenders possession thereof.
3. The Howey Test states that there is an investment contract when a person invests money in a common enterprise and is led to expect profits primarily from the efforts of others.
4. A document, dated July 15, 2009, that reads: "Pay to X or order the sum of P5,000.00 five days after his pet dog, Sparky, dies. Signed Y." is a negotiable instrument.
5. "A bank is bound to know its depositor’s signature" is an inflexible rule in determining the liability of a bank in forgery cases.
XII
Gaudencio, a store owner, obtained a P1-million loan from Bathala Financing Corporation (BFC). As security, Gaudencio executed a "Deed of Assignment of Receivables," assigning 15 checks received from various customers who bought merchandise from his store. The checks were duly indorsed by Gaudencio’s customers.
The Deed of Assignment contains the following stipulation:
"If, for any reason, the receivables or any part thereof cannot be paid by the obligors, the ASSIGNOR unconditionally and irrevocably agrees to pay the same, assuming the liability to pay, by way of penalty, three percent (3%) of the total amount unpaid, for the period of delay until the same is fully paid."
When the checks became due, BFC deposited them for collection, but the drawee banks dishonored all the checks for one of the following reasons: "account closed," "payment stopped," "account under garnishment," or "insufficiency of funds." BFC wrote Gaudencio notifying him of the dishonored checks, and demanding payment of the loan. Because Gaudencio did not pay, BFC filed a collection suit.
In his defense, Gaudencio contended that [a] BFC did not give timely notice of dishonor (of the checks); and [b] considering that the checks were duly indorsed, BFC should proceed against the drawers and the indorsers of the checks.
Are Gaudencio’s defenses tenable? Explain. (5%)
XIII
Ciriaco leased a commercial apartment from Supreme Building Corporation (SBC). One of the provisions of the one-year lease contract states:
"18. x x x The LESSEE shall not insure against fire the chattels, merchandise, textiles, goods and effects placed at any stall or store or space in the leased premises without first obtaining the written consent of the LESSOR. If the LESSEE obtains fire insurance coverage without the consent of the LESSOR, the insurance policy is deemed assigned and transferred to the LESSOR for the latter’s benefit."
Notwithstanding the stipulation in the contract, without the consent of SBC, Ciriaco insured the merchandise inside the leased premises against loss by fire in the amount of P500,000.00 with First United Insurance Corporation (FUIC).
A day before the lease contract expired, fire broke out inside the leased premises, damaging Ciriaco’s merchandise. Having learned of the insurance earlier procured by Ciriaco, SBC demanded from FUIC that the proceeds of the insurance policy be paid directly to it, as provided in the lease contract.
Who is legally entitled to receive the insurance proceeds? Explain. (4%)
XIV
XXX Corporation (XXX) and its sister company, YYY Corporation (YYY), are both under judicial receivership. The receiver has the option to sell all or substantially all of the properties of YYY to XXX, or simply merge the two corporations. Under either option, the requirements under the Corporation Code have to be complied with.
The receiver seeks your advice on whether the Bulk Sales Law will apply to either, or both, options. What will your advice be? Explain. (4%)
XV
After disposing of his last opponent in only two rounds in Las Vegas, the renowned Filipino boxer Sonny Bachao arrived at the Ninoy Aquino International Airport met by thousands of hero-worshipping fans and hundreds of media photographers. The following day, a colored photograph of Sonny wearing a black polo shirt embroidered with the 2-inch Lacoste crocodile logo appeared on the front page of every Philippine newspaper.
Lacoste International, the French firm that manufactures Lacoste apparel and owns the Lacoste trademark, decided to cash in on the universal popularity of the boxing icon. It reprinted the photographs, with the permission of the newspaper publishers, and went on a world-wide blitz of print commercials in which Sonny is shown wearing a Lacoste shirt alongside the phrase "Sonny Bachao just loves Lacoste."
When Sonny sees the Lacoste advertisements, he hires you as lawyer and asks you to sue Lacoste International before a Philippine court:
1. For trademark infringement in the Philippines because Lacoste International used his image without his permission; (2%)
2. For copyright infringement because of the unauthorized use of the published photographs; (2%) and
3. For injunction in order to stop Lacoste International from featuring him in their commercials. (2%)
Will these actions prosper? Explain.
4. Can Lacoste International validly invoke the defense that it is not a Philippine company and, therefore, Philippine courts have no jurisdiction? Explain. (2%)
XVI
On September 15, 2007, XYZ Corporation issued to Paterno 800 preferred shares with the following terms:
"The Preferred Shares shall have the following rights, preferences, qualifications, and limitations, to wit:
1. The right to receive a quarterly dividend of One Per Centum (1%), cumulative and participating;
2. These shares may be redeemed, by drawing of lots, at any time after two (2) years from date of issue, at the option of the Corporation; x x x."
Today, Paterno sues XYZ Corporation for specific performance, for the payment of dividends on, and to compel the redemption of, the preferred shares, under the terms and conditions provided in the stock certificates. Will the suit prosper? Explain. (3%)
XVII
Philippine Palaces Realty (PPR) had been representing itself as a registered broker of securities, duly authorized by the Securities and Exchange Commission (SEC). On October 6, 1996, PPR sold to spouses Leon and Carina one (1) timeshare of Palacio del Boracay for US$7,500.00. However, its Registration Statement became effective only on February 11, 1998 after the SEC issued a resolution declaring that PPR was authorized to sell securities, including timeshares.
On March 30, 1998, Leon and Carina wrote PPR rescinding their purchase agreement and demanding the refund of the amount they paid, because the Palacio del Boracay timeshare was sold to them by PPR without the requisite license or authority from the SEC. PPR contended that the grant of the SEC authority had the effect of ratifying the purchase agreement (with Leon and Carina) of October 6, 1996.
Is the contention of PPR correct? Explain. (3%)
XVIII
Triple A Corporation (Triple A) was incorporated in 1960, with 500 founders’ shares and 78 common shares as its initial capital stock subscription. However, Triple A registered its stock and transfer book only in 1978, and recorded merely 33 common shares as the corporation’s issued and outstanding shares.
1. In 1982, Juancho, the sole heir of one of the original incorporators filed a petition with the Securities and Exchange Commission (SEC) for the registration of his property rights over 120 founders’ shares and 12 common shares. The petition was supported by a copy of the Articles of Incorporation indicating the incorporators’ initial capital stock subscription. Will the petition be granted? Why or why not? (3%)
2. On May 6, 1992, a special stockholders’ meeting was held. At this meeting, what would have constituted a quorum? Explain. (3%)
3. What is a stock and transfer book? (1%)
XIX
One of the passenger buses owned by Continental Transit Corporation (CTC), plying its usual route, figured in a collision with another bus owned by Universal Transport, Inc. (UTI). Among those injured inside the CTC bus were: Romeo, a stow away; Samuel, a pickpocket then in the act of robbing his seatmate when the collision occurred; Teresita, the bus driver’s mistress who usually accompanied the driver on his trips for free; and Uriel, holder of a free riding pass he won in a raffle held by CTC.
1. Will a suit for breach of contract of carriage filed by Romeo, Samuel, Teresita, and Uriel against CTC prosper? Explain. (3%)
2. Do Romeo, Samuel, Teresita, and Uriel have a cause of action for damages against UTI? Explain. (3%)
3. What, if any, are the valid defenses that CTC and UTI can raise in the respective actions against them? Explain. (3%)
XX
Under the Securities Regulation Code, what is the Margin Trading Rule? (2%)
CRIMINAL LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist.
2. The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery.
3. The use of an unlicensed firearm in homicide is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance.
4. A person who, on the occasion of a robbery, kills a bystander by accident is liable for two separate crimes: robbery and reckless imprudence resulting in homicide.
5. A policeman who, without a judicial order, enters a private house over the owner’s opposition is guilty of trespass to dwelling.
II
Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation.
Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of Evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (4%)
III
Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days.
1. Is Rigoberto guilty of Direct Assault? Why or why not? (3%)
2. Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. (3%)
IV
Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlie’s girlfriend. Charlie went to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad.
The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad’s food, did not kill Brad.
1. Did Charlie commit any crime? If so, what and why? If not, why not? (3%)
2. Would your answer be the same if Brad proved to be allergic to the powder, and after ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%)
V
Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: "O, pagkabaril mo kay Freddie, isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot.
1. What, if any, is the liability of Ruben? Explain. (3%)
2. Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (3%)
VI
Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador witnessed the entire incident, but he was so scared to tell the authorities about it.
On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged in court, Baldo claims that the crime he committed had already prescribed.
Is Baldo’s contention correct? Explain. (3%)
VII
Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00.
Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law.
While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information, claiming that she can no longer be charged under the Revised Penal Code having been charged for the same act under R.A. 3019.
Is Charina correct? Explain. (3%)
VIII
While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A firefight ensued between the bank robbers and the responding policemen, and one of the policemen was killed.
1. What crime or crimes, if any, had been committed? Explain. (3%)
2. Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco and Domingo? Explain. (2%)
3. Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%)
IX
Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: "Tigil! Kidnap ito!"
Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse.
What crime or crimes, if any, did Virgilio commit? Explain. (5%)
X
To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented.
She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape.
What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer. (5%)
PART II
XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. Life imprisonment is a penalty more favorable to the convict than reclusion perpetua.
2. Voluntary surrender is a mitigating circumstance in all acts and omissions punishable under the Revised Penal Code.
3. In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery.
4. In the crime of libel, truth is an absolute defense.
5. For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes.
XII
1. In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. (3%)
2. Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? (3%)
XIII
Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished.
Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22.
1. What is delito continuado? (1%)
2. Is Angelo’s contention tenable? Explain. (4%)
XIV
Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bust operation failed to observe the requisite "chain of custody" of the evidence confiscated and/or seized from him.
What is the "chain of custody" requirement in drug offenses? What is its rationale? What is the effect of failure to observe the requirement? (3%)
XV
Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion.
1. What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain. (3%)
2. Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. (2%)
3. Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain. (2%)
XVI
Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the disbursement of public funds allocated for their local development programs for 2008. Records show that the amount of P2-million was purportedly used as financial assistance for a rice production livelihood project. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers and supporting documents in order to make it appear that qualified recipients who, in fact, are non-existent individuals, received the money.
Roger and Jessie are charged with malversation through falsification and violation of Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. Explain. (4%)
XVII
Wenceslao and Loretta were staying in the same boarding house, occupying different rooms. One late evening, when everyone in the house was asleep, Wenceslao entered Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry.
1. What crime or crimes, if any, did Wenceslao commit? Explain. (4%)
2. Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of the picklock to enter the room of the victim. (3%)
3. Would your answer to [a] be the same if, despite the serious stab wounds she sustained, Loretta survived? Explain. (3%)
XVIII
At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her.
1. What crime or crimes, if any, did Leoncio commit? Explain. (3%)
2. Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? Explain. (3%)
XIX
Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced them. The patient survived. It turned out that the patient was Larry, as Oscar had been discharged from the hospital earlier.
Delmo was charged with frustrated murder, qualified by evident premeditation and treachery as aggravating circumstances. Discuss the propriety of the charge. (4%)
October 4, 2009
REMEDIAL LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. The Vallejo standard refers to jurisprudential norms considered by the court in assessing the probative value of DNA evidence.
2. The One-Day Examination of Witness Rule abbreviates court proceedings by having a witness fully examined in only one day during trial.
3. A suit for injunction is an action in rem.
4. Under the doctrine of adoptive admission, a third party's statement becomes the admission of the party embracing or espousing it.
5. Summons may be served by mail.
II
Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the ownership and possession of two parcels of land; one situated in Pampanga, and the other in Bulacan.
1. May the action prosper? Explain. (2%)
2. Will your answer be the same if the action was for foreclosure of the mortgage over the two parcels of land? Why or why not? (2%)
III
Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of Lipa City a Complaint for Rescission of Contract of Sale of Land against Brigido, a resident of Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the complaint is Amorsolo's verification and certification of non-forum shopping executed in New York City, duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York.
Brigido filed a motion to dismiss the complaint on the following grounds:
1. The court cannot acquire jurisdiction over the person of Amorsolo because he is not a resident of the Philippines; (2%)
2. The RTC does not have jurisdiction over the subject matter of the action involving real property with an assessed value of P19,700.00; exclusive and original jurisdiction is with the Municipal Trial Court where the defendant resides; (3%) and
3. The verification and certification of non-forum shopping are fatally defective because there is no accompanying certification issued by the Philippine Consulate in New York, authenticating that Mr. Brown is duly authorized to notarize the document. (3%)
Rule on the foregoing grounds with reasons.
IV
Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San Miguel, Leyte, are charged before the Sandiganbayan for violation of Section 3 (e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). The information alleges, among others, that the two conspired in the purchase of several units of computer through personal canvass instead of a public bidding, causing undue injury to the municipality.
Before arraignment, the accused moved for reinvestigation of the charge, which the court granted. After reinvestigation, the Office of the Special Prosecutor filed an amended information duly signed and approved by the Special Prosecutor, alleging the same delictual facts, but with an additional allegation that the accused gave unwarranted benefits to SB Enterprises owned by Samuel. Samuel was also indicted under the amended information.
Before Samuel was arraigned, he moved to quash the amended information on the ground that the officer who filed the same had no authority to do so. Resolve the motion to quash with reasons. (3%)
V
Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding, Frank exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with her parents. A year thereafter, Gina found employment as a domestic helper in Singapore, where she worked for ten consecutive years. All the time she was abroad, Gina had absolutely no communications with Frank, nor did she hear any news about him. While in Singapore, Gina met and fell in love with Willie.
On July 4, 2007, Gina filed a petition with the RTC of Manila to declare Frank presumptively dead, so that she could marry Willie. The RTC granted Gina's petition. The Office of the Solicitor General (OSG) filed a Notice of Appeal with the RTC, stating that it was appealing the decision to the Court of Appeals on questions of fact and law.
1. Is a petition for Declaration of Presumptive Death a special proceeding? Why or why not? (2%)
2. As the RTC judge who granted Gina's petition, will you give due course to the OSG's Notice of Appeal? Explain. (3%)
VI
Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed of his constitutional rights. During the investigation, Edmond refused to give any statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6) sachets of "shabu" were confiscated from him. Edmond consented and also signed a receipt for the amount of P3,000.00, allegedly representing the "purchase price of the shabu." At the trial, the arresting officer testified and identified the documents executed and signed by Edmond. Edmond's lawyer did not object to the testimony. After the presentation of the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents signed by Edmond.
Edmond's lawyer objected to the admissibility of the documents for being the "fruit of the poisoned tree." Resolve the objection with reasons. (3%)
VII
Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the presentation of plaintiff's evidence, Dioscoro died. Atty. Cruz, Dioscoro's counsel, then filed a motion to dismiss the action on the ground of his client's death. The court denied the motion to dismiss and, instead, directed counsel to furnish the court with the names and addresses of Dioscoro's heirs and ordered that the designated administrator of Dioscoro's estate be substituted as representative party.
After trial, the court rendered judgment in favor of Cresencio. When the decision had become final and executory, Cresencio moved for the issuance of a writ of execution against Dioscoro's estate to enforce his judgment claim. The court issued the writ of execution. Was the court's issuance of the writ of execution proper? Explain. (2%)
VIII
On July 15, 2009, Atty. Manananggol was served copies of numerous unfavorable judgments and orders. On July 29, 2009, he filed motions for reconsideration which were denied. He received the notices of denial of the motions for reconsideration on October 2, 2009, a Friday. He immediately informed his clients who, in turn, uniformly instructed him to appeal. How, when and where should he pursue the appropriate remedy for each of the following: (10%)
1. Judgment of a Municipal Trial Court (MTC) pursuant to its delegated jurisdiction dismissing his client's application for land registration?
2. Judgment of the Regional Trial Court (RTC) denying his client's petition for a Writ of Habeas Data?
3. Order of a Family Court denying his client's petition for Habeas Corpus in relation to custody of a minor child?
4. Order of the RTC denying his client's Petition for Certiorari questioning the Metropolitan Trial Court's (MeTC's) denial of a motion to suspend criminal proceedings?
5. Judgment of the First Division of the Court of Tax Appeals (CTA) affirming the RTC decision convicting his client for violation of the National Internal Revenue Code?
IX
Modesto sued Ernesto for a sum of money, claiming that the latter owed him P1-million, evidenced by a promissory note, quoted and attached to the complaint. In his answer with counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note, but that it is Modesto who really owes him P1.5-million. Modesto filed an answer to Ernesto's counterclaim admitting that he owed Ernesto, but only in the amount of P0.5-million. At the pre-trial, Modesto marked and identified Ernesto's promissory note. He also marked and identified receipts covering payments he made to Ernesto, to the extent of P0.5-million, which Ernesto did not dispute.
After pre-trial, Modesto filed a motion for judgment on the pleadings, while Ernesto filed a motion for summary judgment on his counterclaim. Resolve the two motions with reasons. (5%)
X
Upon termination of the pre-trial, the judge dictated the pre-trial order in the presence of the parties and their counsel, reciting what had transpired and defining three (3) issues to be tried.
1. If, immediately upon receipt of his copy of the pre-trial order, plaintiff's counsel should move for its amendment to include a fourth (4th) triable issue which he allegedly inadvertently failedto mention when the judge dictated the order. Should the motion to amend be granted? Reasons. (2%)
2. Suppose trial had already commenced and after the plaintiff's second witness had testified, the defendant's counsel moves for the amendment of the pre-trial order to include a fifth (5th) triable issue vital to his client's defense. Should the motion be granted over the objection of plaintiff's counsel? Reasons. (3%)
PART II
XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. The accused in a criminal case has the right to avail of the various modes of discovery.
2. The viatory right of a witness served with a subpoena ad testificandum refers to his right not to comply with the subpoena.
3. In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for the issuance of a writ of habeas corpus.
4. An electronic document is the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.
5. The filing of a motion for the reconsideration of the trial court's decision results in the abandonment of a perfected appeal.
XII
Mike was renting an apartment unit in the building owned by Jonathan. When Mike failed to pay six months' rent, Jonathan filed an ejectment suit. The Municipal Trial Court (MTC) rendered judgment in favor of Jonathan, who then filed a motion for the issuance of a writ of execution. The MTC issued the writ.
1. How can Mike stay the execution of the MTC judgment? Explain. (2%)
2. Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision. Mike then filed a petition for review with the Court of Appeals (CA). The CA dismissed the petition on the ground that the sheriff had already executed the MTC decision and had ejected Mike from the premises, thus rendering the appeal moot and academic. Is the CA correct? Reasons. (3%)
XIII
1. Continental Chemical Corporation (CCC) filed a complaint for a sum of money against Barstow Trading Corporation (BTC) for the latter's failure to pay for its purchases of industrial chemicals. In its answer, BTC contended that it refused to pay because CCC misrepresented that the products it sold belonged to a new line, when in fact they were identical with CCC's existing products. To substantiate its defense, BTC filed a motion to compel CCC to give a detailed list of the products' ingredients and chemical components, relying on the right to avail of the modes of discovery allowed under Rule 27. CCC objected, invoking confidentiality of the information sought by BTC. Resolve BTC's motion with reasons. (3%)
2. Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his sister, Carla. Carla brought Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it was Alberto who shot Betty. Betty died while undergoing emergency surgery. At the trial of the parricide charges filed against Alberto, the prosecutor sought to present Domingo as witness, to testify on what Carla told him. The defense counsel objected on the ground that Domingo's testimony is inadmissible for being hearsay. Rule on the objection with reasons. (3%)
XIV
The Republic of the Philippines, through the Department of Public Works and Highways (DPWH) filed with the RTC a complaint for the expropriation of the parcel of land owned by Jovito. The land is to be used as an extension of the national highway. Attached to the complaint is a bank certificate showing that there is, on deposit with the Land Bank of the Philippines, an amount equivalent to the assessed value of the property. Then DPWH filed a motion for the issuance of a writ of possession. Jovito filed a motion to dismiss the complaint on the ground that there are other properties which would better serve the purpose.
1. Will Jovito's motion to dismiss prosper? Explain. (3%)
2. As judge, will you grant the writ of possession prayed for by DPWH? Explain. (3%)
XV
1. Florencio sued Guillermo for partition of a property they owned in common. Guillermo filed a motion to dismiss the complaint because Florencio failed to implead Hernando and Inocencio, the other co-owners of the property. As judge, will you grant the motion to dismiss? Explain. (3%)
2. Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin Road, Baguio City, while Mariano resides in Davao City. Henry filed a motion to dismiss the complaint on the ground of prematurity for failure to comply with the mandatory barangay conciliation. Resolve the motion with reasons. (3%)
XVI
1. After the prosecution had rested and made its formal offer of evidence, with the court admitting all of the prosecution evidence, the accused filed a demurrer to evidence with leave of court. The prosecution was allowed to comment thereon. Thereafter, the court granted the demurrer, finding that the accused could not have committed the offense charged. If the prosecution files a motion for reconsideration on the ground that the court order granting the demurrer was not in accord with the law and jurisprudence, will the motion prosper? Explain your answer. (3%)
2. A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to quash the information on the ground that no preliminary investigation was conducted. Will the motion be granted? Why or why not? (3%)
XVII
Having obtained favorable judgment in his suit for a sum of money against Patricio, Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.
1. How may Patricio prevent the sale of the property on execution? (2%)
2. If Orencio is the purchaser of the property at the execution sale, how much does he have to pay? Explain. (2%)
3. If the property is sold to a third party at the execution sale, what can Patricio do to recover the property? Explain. (2%)
XVIII
Pinoy died without a will. His wife, Rosie, and three children executed a deed of extrajudicial settlement of his estate. The deed was properly published and registered with the Office of the Register of Deeds. Three years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to annul the settlement alleging that she was deprived of her rightful share in the estate.
Rosie and the three children contended that (1) the publication of the deed constituted constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzy's action had already prescribed.
Are Rosie and the three children correct? Explain. (4%)
XIX
1. Distinguish the two (2) modes of appeal from the judgment of the Regional Trial Court to the Court of Appeals. (3%)
2. What is the writ of amparo? How is it distinguished from the writ of habeas corpus? (2%)
3. What is the writ of habeas data? (1%)
ETHICS LAW
PART I
I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. The Bangalore Draft, approved at a Roundtable Meeting of Chief Justices held at The Hague, is now the New Code of Judicial Conduct in the Philippines.
2. An attorney ad hoc is a lawyer appointed by the court to represent an absentee defendant in a suit in which the appointment is made.
3. A charging lien, as distinguished from a retaining lien, is an active lien which can be enforced by execution.
4. A lawyer cannot refuse to divulge the name or identity of his client.
5. A notary public is disqualified from performing a notarial act when the party to the document is a relative by affinity within the 4th civil degree.
II
1. What is the object of the bar examinations? Explain. (2%)
2. What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. (3%)
III
1. May a party appear as his own counsel in a criminal or in a civil case? Explain. (3%)
2. What is the student practice rule? (2%)
IV
1. In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge Quintero issued an order for the arrest of the accused, granted a motion for the reduction of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero inhibited himself from the case, alleging that even before the case was raffled to his court, he already had personal knowledge of the circumstances surrounding the case. Is Judge Quintero’s inhibition justified? Explain. (3%)
2. After being diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from the Supreme Court, refused to wear her robe during court proceedings. When her attention was called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense. This, in turn, triggers the outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe? Explain. (3%)
V
Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff showed Greta the document already signed by an alleged solemnizing officer and two witnesses. Cliff then told Greta that they were already married and Greta consented to go on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later, Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment complaint against Cliff. Will the case prosper? Explain. (4%)
VI
Atty. Sabungero obtained a notarial commission. One Sunday, while he was at the cockpit, a person approached him with an affidavit that needed to be notarized. Atty. Sabungero immediately pulled out from his pocket his small notarial seal, and notarized the document. Was the affidavit validly notarized? Explain. (3%)
VII
Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After receiving the plaintiff’s Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff’s counsel.
1. Did Atty. Manuel violate any ethical standard for lawyers? Explain. (3%)
2. Will your answer be the same if it was the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiff’s counsel? Explain. (2%)
VIII
Court of Appeals (CA) Justice Juris was administratively charged with gross ignorance of the law for having issued an order "temporarily enjoining" the implementation of a writ of execution, and for having issued another order for the parties to "maintain the status quo" in the same case. Both orders are obviously without any legal basis and violate CA rules. In his defense, Justice Juris claims that the challenged orders were collegial acts of the CA Division to which he belonged. Thus, he posits that the charge should not be filed against him alone, but should include the two other CA justices in the Division. Is the contention of Justice Juris tenable? Explain. (3%)
IX
Alexander Sison, resident of 111 Libertad St., Sampaloc, Manila, engages your services as lawyer. He tells you that a certain Mr. Juan Jamero of 222 Juan Luna St., Tondo, Manila, owes him P1,000,000.00; that the debt is long overdue; and that, despite repeated demands, Jamero has failed to comply with his obligation. He also shows you a promissory note, executed on January 3, 2008, wherein Jamero promises to pay the amount of P1,000,000.00, with 12% interest per annum, within one (1) year from date of note. Sison agrees to pay you attorney’s fees in the amount of P75,000.00, and a fee of P3,000.00 for every appearance in court.
As Sison’s lawyer, prepare the complaint that you will file in court against Juan Jamero. (10%)
X
Given the same facts in No. IX above, assume that summons had been served on Jamero, but no responsive pleading was filed within the reglementary period.
Prepare a motion to declare Jamero in default. (4%)
PART II
XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)
1. The duty of a lawyer to his client is more paramount than his duty to the Court.
2. It is ethical for a lawyer to advise his client to enter a plea of guilty in a criminal case if the lawyer is personally convinced that he cannot win the case for his client.
3. There is no presumption of innocence or improbability of wrongdoing in an attorney’s favor when he deals with his client concurrently as lawyer and as businessman.
4. The satisfaction of a judgment debt does not, by itself, bar or extinguish the attorney’s liens, except when there has been a waiver by the lawyer, as shown by his conduct or his passive omission.
5. A companion or employee of the judge who lives in the judge’s household is included in the definition of the "judge’s family."
XII
Write the complete text of the attorney’s oath. (5%)
XIII
Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates beautiful actresses in Hong Kong. Kristine, a neighbor in the Philippines, filed with the Supreme Court an administrative complaint against the lawyer because of sex videos uploaded through the internet showing Atty. Hyde’s sordid dalliance with the actresses in Hong Kong.
In his answer, Atty. Hyde (1) questions the legal personality and interest of Kristine to institute the complaint and (2) insists that he is a bachelor and the sex videos relate to his private life which is outside public scrutiny and have nothing to do with his law practice.
Rule on the validity of Atty. Hyde’s defenses. (5%)
XIV
Marlyn, a widow, engaged the services of Atty. Romanito in order to avert the foreclosure of several parcels of land mortgaged by her late husband to several creditors. Atty. Romanito advised the widow to execute in his favor deeds of sale over the properties, so that he could sell them and generate funds to pay her creditors. The widow agreed. Atty. Romanito did not sell the properties, but paid the mortgage creditors with his own funds, and had the land titles registered in his name. Atty. Romanito succeeds in averting the foreclosure. Is he administratively liable? Reasons. (3%)
XV
Atty. Wilmar represented Beatriz in a partition case among heirs, and won. When Wilmar demanded payment of attorney’s fees, Beatriz refused to pay. Wilmar sued Beatriz for the unpaid attorney’s fees and obtained a favorable judgment. Thereafter, Beatriz filed an administrative complaint against Wilmar claiming that he lied when he stated in his claim for attorney’s fees that the subject of the partition case involved the entire estate of the deceased when, in fact, it covered only 50% thereof. Wilmar set up the defenses that (1) Beatriz filed the complaint only to delay the execution of the judgment ordering her to pay attorney’s fees and (2) Beatriz engaged in forum-shopping. Are the defenses of Atty. Wilmar tenable? Explain. (4%)
XVI
Atty. Simeon persuaded Armando, Benigno and Ciriaco to invest in a business venture that later went bankrupt. Armando, Benigno and Ciriaco charged Atty. Simeon with estafa. Simultaneously, they filed an administrative complaint against the lawyer with the Supreme Court.
1. If Simeon is convicted of estafa, will he be disbarred? Explain. (3%)
2. If Simeon is acquitted of the estafa charge, will the disbarment complaint be dismissed? Explain. (3%)
XVII
When Atty. Romualdo interviewed his client, Vicente, who is accused of murder, the latter confessed that he killed the victim in cold blood. Vicente also said that when he takes the witness stand, he will deny having done so. Is Atty. Romualdo obliged, under his oath as lawyer, to inform the judge that [a] his client is guilty and [b] his client will commit perjury on the witness stand? Explain. (4%)
XVIII
On a Saturday, Atty. Paterno filed a petition for a writ of amparo with the Court of Appeals (CA). Impelled by the urgency for the issuance of the writ, Atty. Paterno persuaded his friend, CA Justice Johnny de la Cruz, to issue the writ of amparo and the notice of hearing without the signature of the two other Justices-members of the CA division. Are Atty. Paterno and Justice de la Cruz guilty of unethical conduct? Explain. (4%)
XIX
Romeo Hacendero wants to authorize Juanito Ahente to sell, on cash basis, for a price not lower than P500,000.00, a parcel of land, situated in Muñoz, Nueva Ecija, and covered by Transfer Certificate of Title No. 123456, in the Register of Deeds of Nueva Ecija. Prepare a Special Power of Attorney granting such authority. (4%)
XX
From the affidavits and the death certificate submitted during the preliminary investigation, the following facts are established: At 6:00 o’clock in the evening of September 13, 2009, at the corner of Dapitan and Dos Castillas Sts., Sampaloc, Manila, Edgar Bastonero, alias Bugoy, and Carlos Tirador, alias Pogi, accosted Johnny Escolar, a student, and demanded the latter’s cellular phone and wrist watch. Because Johnny resisted, Bastonero pulled out a knife and stabbed Johnny several times in the chest, causing instantaneous death. Bastonero and Tirador then ran away. The affidavits were executed by William Tan and Henry Uy, classmates of Johnny, who witnessed the entire incident. The death certificate was issued by Dr. Jose Cabra who conducted the autopsy on Johnny.
As Assistant City Prosecutor in Manila, prepare the appropriate criminal information to be filed in court. (10%)
Friday, October 9, 2009
Wednesday, October 7, 2009
Top 10 Law Schools in the Philippines
Recently, the decision of the Commission of Higher Education (CHEd) to close down (6) six of the 107 law schools across the country has alarmed several law disciples as well as the community of law practitioners since most of law students flunk the Bar Examinations (equivalent to the national licensure exam for admission to the practice of law) administered by the Supreme Court (SC) in the last 10 years (1999-2009) while some law schools post a performance percentile rank of “zero”.
However, it is argued that the Philippine Bar Examinations is one of the hardest bar exams in the world, given its weight as one of the requisites to succeed in the practice of law, in the country. However, this noble profession needs to train more and harness the skills of law students in a right law school or college of law to equip future bar members with its very high standards.
Because of media attention and accolades given to the top 10 bar passers, several law colleges compete to be named as the top law school in the country. More so, competition breeds quality and indeed we need noble lawyers in the end.
While some top law schools attribute their success to its post-graduate law degree-programs (Ll.B, J.D., J.D.-M.B.A.), on the other hand, few law schools implement stringent entrance or admission examinations yet setting very high mortality rates in retaining their students. Thusly, considering the expensive tuition fees paid and law books bought by these future lawyers.
Today the playing field in legal studies has been leveled off, with overflowing data of knowledge and electronic legal materials, via the information superhighway and technology.
Hence, other law students take pride of the traditions each law school has mustered over the years inculcating in them the number of bar topnotchers and Supreme Court Chief Justices they have produced. However, little-known law colleges from the province and in the metro are now emerging, making a name for itself, leveling off the playing field, and pissing off the arrogance of top law schools and producers of topnotch lawyers.
In view of the standards set for law schools in the country which must be complied with, CHEd Chairman Emmanuel Angeles refutes that his commission made a thorough and careful study of the performance of higher education institutions on how law graduates fair in the Bar Exams in terms of quantity of successful examinees for the past ten years.
However, in most of the websites and blogs that I have surfed, there are two prevailing views which law schools are rated top. The first view is based on the passing rate the law schools have achieved over the last 10 years. On the other hand, the second view considers the number of bar topnotchers a college of law produces since the inception of the bar exams.
Which ever views you believe in, at the end of the day, if you believe in yourself and in your own schools, you and the school you represent is the best of them all and strive to always be on top! Opinion of the Author (chester b cabalza).
A. Based on Passing Rate (1999-2009)
1. Ateneo de Manila University- 91.24 percent
2. San Beda College – 88.4 percent
3. University of the Philippines – 82.85 percent
4. Far Eastern University-De La Salle University (Juris Doctor MBA) – 77.42 percent
5. Ateneo de Davao University – 75.92 percent
6. University of San Carlos – 68.2 percent
7. University of Santo Tomas – 67.64 percent
8. University of Cebu – 52.81 percent
9. University of Perpetual Help-Rizal – 50.81 percent
10. Arellano University School of Law – 49.3 percent
B. Based on Number of Topnotchers (1901-2009)
1. University of the Philippines College of Law, 49
2. Ateneo de Manila Law School, 19
3. Philippine Law School – 7
4. University of Manila – 6
San Beda College of Law – 6
5. Far Eastern University Institute of Law – 3
University of Santo Tomas Faculty of Civil Law – 3
6. University of the Cordilleras (then Baguio Colleges Foundation) College of Law – 2
7. Manila Law College Foundation (formerly Escuela de Derecho de Manila) – 1
Manuel L. Quezon University College of Law, 1
Divine Word College, 1
University of the East College of Law , 1
San Sebastian College Institute of Law, 1
However, it is argued that the Philippine Bar Examinations is one of the hardest bar exams in the world, given its weight as one of the requisites to succeed in the practice of law, in the country. However, this noble profession needs to train more and harness the skills of law students in a right law school or college of law to equip future bar members with its very high standards.
Because of media attention and accolades given to the top 10 bar passers, several law colleges compete to be named as the top law school in the country. More so, competition breeds quality and indeed we need noble lawyers in the end.
While some top law schools attribute their success to its post-graduate law degree-programs (Ll.B, J.D., J.D.-M.B.A.), on the other hand, few law schools implement stringent entrance or admission examinations yet setting very high mortality rates in retaining their students. Thusly, considering the expensive tuition fees paid and law books bought by these future lawyers.
Today the playing field in legal studies has been leveled off, with overflowing data of knowledge and electronic legal materials, via the information superhighway and technology.
Hence, other law students take pride of the traditions each law school has mustered over the years inculcating in them the number of bar topnotchers and Supreme Court Chief Justices they have produced. However, little-known law colleges from the province and in the metro are now emerging, making a name for itself, leveling off the playing field, and pissing off the arrogance of top law schools and producers of topnotch lawyers.
In view of the standards set for law schools in the country which must be complied with, CHEd Chairman Emmanuel Angeles refutes that his commission made a thorough and careful study of the performance of higher education institutions on how law graduates fair in the Bar Exams in terms of quantity of successful examinees for the past ten years.
However, in most of the websites and blogs that I have surfed, there are two prevailing views which law schools are rated top. The first view is based on the passing rate the law schools have achieved over the last 10 years. On the other hand, the second view considers the number of bar topnotchers a college of law produces since the inception of the bar exams.
Which ever views you believe in, at the end of the day, if you believe in yourself and in your own schools, you and the school you represent is the best of them all and strive to always be on top! Opinion of the Author (chester b cabalza).
A. Based on Passing Rate (1999-2009)
1. Ateneo de Manila University- 91.24 percent
2. San Beda College – 88.4 percent
3. University of the Philippines – 82.85 percent
4. Far Eastern University-De La Salle University (Juris Doctor MBA) – 77.42 percent
5. Ateneo de Davao University – 75.92 percent
6. University of San Carlos – 68.2 percent
7. University of Santo Tomas – 67.64 percent
8. University of Cebu – 52.81 percent
9. University of Perpetual Help-Rizal – 50.81 percent
10. Arellano University School of Law – 49.3 percent
B. Based on Number of Topnotchers (1901-2009)
1. University of the Philippines College of Law, 49
2. Ateneo de Manila Law School, 19
3. Philippine Law School – 7
4. University of Manila – 6
San Beda College of Law – 6
5. Far Eastern University Institute of Law – 3
University of Santo Tomas Faculty of Civil Law – 3
6. University of the Cordilleras (then Baguio Colleges Foundation) College of Law – 2
7. Manila Law College Foundation (formerly Escuela de Derecho de Manila) – 1
Manuel L. Quezon University College of Law, 1
Divine Word College, 1
University of the East College of Law , 1
San Sebastian College Institute of Law, 1
Monday, October 5, 2009
Comments on RA 9372
Copyright © 2009 by Chester B Cabalza. All Rights Reserved.
I. Introduction
On March 6, 2007, the “Human Security Act (HSA) of 2007, ” or otherwise known as, Republic Act (RA) No. 9372 was enacted by the 13th Congress of the Philippines and signed into law by the President of the Philippines, which took effect on July 15, 2008, providing legal framework for government’s anti-terrorism strategy and security policies.
The 35-page HSA ensures that any actions undertaken are done so within the bounds of law. It is declared to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.
This law was triggered after the tragic September 11, 2001 terrorist attack in the United States and several high-profile terrorist activities in the Philippines by extremist/terrorist Abu Sayyaf Group (ASG) and insurgent/terrorist Moro Islamic Liberation Front (MILF), both organizations are based in Mindanao; and the regional terror partner Jemaah Islamiyah (JI) from Indonesia which have mercilessly abducted and caused terror to foreigners and the Filipino citizens, as well. Most Muslim terrorist acts in the country are executed by these notorious groups that include the Sipadan-Sulu Hostage Crisis on April 2000, the Rizal Day bombing on December 2000, the Dos Palmas Kidnapping on May 2001, the Superferry bombing on February 2004, the Makati Valentine bombing on December 2005, and the Zamboanga bombing on October 2006; prior to the enactment of the HSA on March 2007.
Because terrorism is not only a local menace, it transcends global actions among countries that are threatened by this non-traditional security issue and transnational crime. The UN through the United Nations Human Rights Commission (UNHR) has to address terrorism as a universal problem many nations are currently facing.
In the Philippines, through this anti-terror law, the government can effectively pursue security imperatives without sacrificing civil liberties. However, legal experts deem that the HSA is the only Philippine law that specifically penalizes torture and imposes stiff penalties and fines on law enforces, provided by Section 24 of R.A. No. 9372.
II. Arguments to amend some provisions of the anti-terrorism law
A.Definition of HSA and terrorism in the Philippines is vague and broad
In my view of the newly adopted legislation, while well-intended, the Human Security Act is one of the most incoherent, disorganized and disjointed laws our Congress has ever passed. It is a mix-and-match collection of 62 sections and 22 provisions; and the law has no discernible structure, no headings or subheadings, and no groupings of sections.
The absence of the definition of terrorism makes the new law as vague, ambiguous and highly susceptible to abuse. With no objective standards to guide our law enforces, the HSA in effect bestows on law enforcers the unfettered discretion to decide if a person is engaged in terrorism or conspiracy to commit terrorism, which is very dangerous indeed.
The Human Security Act is also too broad. It is not in line with the definition proposed by the UN High Level Panel on Threats, Challenges and Change entitled “A More Secure World: Our Shared Responsibility,” published by the United Nations. Although, the universal definition of terrorism is still contentious and debatable, terrorism, according to UN’s former Secretary General Kofi Annan is the use of “violence against civilians for political reasons”. However, the UN High-Level Panel definition imposes that “the action must be intended to cause death or serious bodily harm to civilians or non-combatants.” This fundamental aspect of terrorist acts is not taken into account in the definition enshrined in the Filipino legislation.
B.Commission of Crime and Crimes Punishable with Terrorism
Before the Human Security Act of 2007, the Philippines relied on the Revised Penal Code of 1932, or R.A. No. 3815, which is a 77-year-old law now. Upon the enactment of HSA, criticisms were thrown, especially among the leftists or militants and civil libertarians or members of the civil society, that the new law will be used by the government to commit human rights abuses. However, the government panel said this law itself has many built-in safeguards against human rights abuses.
The HSA lists 11 crimes punishable with terrorism: piracy, rebellion or insurrection, coup d’etat, murder, kidnapping and serious illegal detention, arson, hijacking, highway robbery, illegal possession of firearms, violation of the Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990 and the Atomic Energy Regulatory and Liability Act of 1968.
The Anti-Terror Law made terrorism “a crime against the Filipino people, against humanity, and against the law of nations.” More importantly, three essential elements of the crime of terrorism should include:
1) The commission of one or more of the crimes enumerated above;
2) The commission of the crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and,
3) The purpose for the commission of the crime is to coerce the government to give in to an unlawful demand.
Although, the Human Security Act of 2007 does not have a landmark case yet, the Revised Penal Code has several benchmark cases, which may affirm or may reverse, provisions of the new law. For instance, in People vs. Lava, the Court defines rebellion, to wit: rebellion cannot be complexed with murder, arson, robbery and/or other common crimes, committed as means to or in furtherance of the rebellion charged. The reason is that political crimes are directly aimed against the political order and common crimes may be committed to achieve a political purpose. The decisive factor is the intent or motive.
On the other hand, Umil vs. Ramos, affirms that criminal law; habeas corpus; subversion; the crime of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State are in the nature of continuing crimes.
Lastly, in People vs. Mapa, the court held that it shall be unlawful for any person to possess any firearm, detached parts of firearms or ammunition thereof, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition. Firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the AFP, the PC, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails, are not covered when such firearms are in possession of such officials and public servants for use in the performance of their official duties. No provision is made for a secret agent.
The above-mentioned cases are already punishable under the Revised Penal Code; but as defined by HSA, these acts will be considered “terrorism” if it sows and creates a “condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give into an unlawful demand.”
In my view, there is lack of clear parameters in its listing of common crimes to convert to terrorism. For example, rebellion or insurrection is a crime against public order and is committed by rising publicly and taking arms against the government would necessarily sow and create a condition of widespread and extraordinary fear and panic among the populace. The HSA, in effect should obliterate rebellion and insurrection in our criminal laws and substitute them with the crime of terrorism.
Given the situation, could EDSA Revolution I, II, and III be considered as terrorist acts as it may be deemed by government as acts of rebellion or insurrection since it ebbed fear and caused extraordinary terror among the public or populace; and the call for the chief executive to vacate office may be deemed an unlawful demand under the law.
In my observation, after the controversial enactment of HSA, known terrorist groups such as the Abu Sayyaf Group (ASG), continuously commit crimes of terrorism by kidnapping for ransom and rebellion as a continuing crime against the Philippine government by instilling fears among the citizens and foreigners. Although, few terrorist leaders had already been caught by the law enforcers, however, the organization they represent does not deter them from continuously doing their criminal and terrorist acts.
Hence, criminalizing terrorist organizations and conspiracies are useless, impractical and ineffective in addressing the problem on terrorism. It may only result in the arrest of lots of small fry but will never stop the big fish behind those organizations.
C.Controversies on Wiretapping, Detention, and the Issue on Writ of Amparo
In the Declaration of Policy of the HSA, it explicitly expressed that “the State shall uphold basic rights and fundamental liberties of the people as enshrined in the Constitution,” and, further down, it reiterates that “powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times.”
On the issue on wiretapping, the law requires a written order of the Court of Appeals (CA) before authorities can “listen to, intercept and record any communication, message, conversation, discussion or spoken or written words,” between suspected terrorist groups or persons. A penalty of ten years and one day to twelve years of imprisonment for the liability attaching to the offender upon commission of the act.
In my view, the provision clearly violates due process, since those under surveillance or wiretapping are barred from participating in the proceeding to the detriment of their life and liberty. They are not to be informed of the application or any such authorization order against them. They are also not allowed to contest such application or any evidence that may be brought against them; neither are they allowed to present evidence on their own behalf. More so, they will be subjected to invasion of their privacy rights without due process for up to 60 days by a battery of law enforcement officers, and any recordings made or evidence obtained in violation of their privacy and due process rights may be used in evidence against them.
The law also expressedly stipulates the period of detention without judicial warrant of arrest and authorizes the police or law enforcement personnel who take custody of a suspect are required to “deliver said charged or suspected person to the proper judicial authority within a period of three days” or risk a long jail term.
In the said provisions, HSA follows the general rule that official duties are regularly performed by police officers, acting as mere agents of the state, in enforcing the said law. The state, on the other hand, cannot be sued without its consent and consent may be express or implied.
In the event of an actual or imminent terrorist attack, persons suspected of terrorism may be arrested and detained without charges for as long as the detention is approved by a judge of the municipal or regional trial court, the Sandiganbayan or a justice of Court of Appeals nearest to the place of arrest or by municipal, city, provincial or regional office of a Human Rights Commission, or, where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.
In my analysis in the said provision, it is not clear whether the Human Rights Commission mentioned here is the same as the constitutionally established Commission on Human Rights (CHR). Also, the two paragraphs in Section 19 are contradictory. While the latter requires personal delivery of the arrested person to the judge nearest to the place of arrest and the later appears to negate this requirement by asking only a written notice to the judge nearest to the place of arrest.
The writ of amparo is an order issued by a court to protect the constitutional rights of a person. The Supreme Court of the Philippines announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, 2007 which was deliberated by the En Banc Court last September 25, 2007.
However, skeptics believe that the said law has several effects which are dangerous piece of legislation in Philippine legislative history, threatening the Bill of Rights and contravening the constitutional provisions put in place to avoid a repetition of the horrors of martial law.
In my view, the judicial question on writ of amparo in prosecuting terrorists/insurgents is contrary to the spirit and intent of the Human Security Act of 2007. I believe that these and other similar provisions violate the right to liberty, to be presumed innocent, to due process of law, to equal protection under the law, to fair trial, to travel and to privacy of communication and correspondence.
D.Penalties and Damages
Other controversy in the provisions is stipulated in Section 26 of HSA which provides that persons who have been charged with terrorism or conspiracy to commit terrorism even if they have been granted bail because evidence of their guilt is not stronger and can be detained under house arrest; restricted from traveling; and/or, prohibited from using any cellular phones, computers or other means of communicating with people outside their residence.
Strongly stipulated in Section 50, it provides that any person accused of terrorism who is later acquitted by the court shall be entitled to the payment of P500,000 in damages for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation.
However, Section 41 provides that persons whose properties are seized, sequestered or frozen, but who are later acquitted or the cases against them dismissed, are entitled to P500,000 a day for the period in which their properties were seized, sequestered or frozen. The amount shall be taken from the appropriations of the police or law enforcement agency that caused the filing of the charges.
Hence, prior to the enactment of HSA, also a new law had been created by the Congress on terrorist financing. Based on intelligence report, some members of the Al Qaeda global terrorist network studied aeronautics and basic flying in Pampanga, Philippines in preparation of their successful terror attack in World Trade Center on the infamous 9/11 terrorist attacks in New York, USA. Foreign terrorists funneled through funds and money in Philippine banks to support terrorism.
Because of this and other increasing cases on terrorist financing since the 9/11 terrorist attack, the Philippine Congress immediately passed another controversial law, which is the R.A. No. 9160, also known as, The Anti-Money Laundering Act (AMLA) of 2001. The AMLA’s mission includes the following:
1. To protect and preserve the integrity and confidentiality of bank accounts.
2. To ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity.
3. To extend cooperation in transnational investigation and prosecution of persons involved in money laundering activities whenever committed.
Although, detention premised on suspicion of involvement in a future crime is unacceptable in a supposedly democratic society that operates, among others, on the presumption of innocence among those accused. Restricting the suspects' right to travel and depriving them of their right to privacy also do not bode well for a government that is supposed to protect and uphold civil rights of all people, including those charged with crimes. What proves to be worse is people being presumed guilty by association and consequently penalized by seizing, sequestering and freezing their assets.
In the final analysis, I reiterate that it only proves that Human Security Act of 2007 is the only Philippine law that specifically penalizes torture and imposes stiff penalties and fines on law enforcers.
Below is the list of the provisions stipulated in the HSA with corresponding penalties:
Human Security Act of 2007
Selected Provisions Penalties
Section 10
Effective Period of Judicial Authorization Penalty of ten years and one day to twelve years of imprisonment
Section 11
Custody of Intercepted and Recorded Communications Penalty of six years and one day to twelve years of imprisonment
Section 12
Contents of Joint Affidavit Penalty of not less than ten years and one day to twelve years of imprisonment
Section 13
Disposition of Deposited Materials Penalty of six years and one day to eight years of imprisonment
Section 16
Penalty for Unauthorized or Malicious Interception and/or Recordings Penalty of ten years and one day to twelve years of imprisonment
Section 18
Period of Detention Without Judicial Warrant of Arrest Penalty of ten years and one day to twelve years of imprisonment
Section 20
Penalty for Failure to Deliver Suspect to the proper Judicial Authority Penalty of ten years and one day to twelve years of imprisonment
Section 22
Penalty for the Violation of Rights of a Detainees Penalty of ten years and one day to twelve years of imprisonment
Section 23
Requirement for an Official Custodial Logbook and Its Contents Penalty of ten years and one day to twelve years of imprisonment
Section 25
Penalty for Threat, Intimidation, Coercion, or Torture Penalty of twelve years and one day to twenty years of imprisonment
Also when death or serious permanent disability of said detained person occurs as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical pain or torment, or as a consequence of the infliction on him of such mental, moral or psychological pressure.
Section 30
Effective Period of Judicial Authorization to Examine and Obtain Information on Bank Deposits, Accounts and Records Penalty of ten years and one day to twelve years of imprisonment
Section 31
Custody of Bank Data and Information Obtained After Examination of Deposits, Assets and Records Penalty of not less than six years and one day to twelve years of imprisonment
Section 32
Disposition of Bank Materials Penalty of six years and one day to eight years of imprisonment
Section 36
Penalty for Unauthorized or Malicious Examination of Bank or Financial Institutions Penalty of ten years and one day to twelve years of imprisonment
Section 38
Penalty for False or Untruthful Statement or Misrepresentation of Material Fact Penalty of ten years and one day to twelve years of imprisonment
Section 39
Seizure and Sequestration Penalty of ten years and one day to twelve years of imprisonment
Section 40
Disposition of Seized, Sequestered and Frozen Bank Records Penalty of payment of Php 500,000/day upon acquittal or dismissal of charges
Section 42
Penalty for Unjustified Refusal to restore or Delay in Restoring Seized, Seized, bank Records and Assets Penalty of ten years and one day to twelve years of imprisonment
Section 43
Penalty for Loss, Misuse, Diversion of Frozen Bank Records Penalty of ten years and one day to twelve years of imprisonment
Section 46
Penalty for Unauthorized Revelation of Classified Materials Penalty of ten years and one day to twelve years of imprisonment
Section 47
Penalty for Furnishing False Evidence, Forged Documents or Spurious Evidence Penalty of twelve years and one day to twenty years of imprisonment
Section 50
Damages for Unproven Charge of Terrorism Payment of Php 500,000.00/day
A total of 22 provisions
Source: The researcher modified the provisions from the full text of HSA (2007).
III. Conclusion
The Philippines continues to be a prey of terror acts; whether by communist terrorists or Muslim terrorists, the country still experiences kidnappings of foreigners and fellow Filipinos that have become a “cottage industry” in Mindanao and other remotest areas in the country, where decades of rebellion have stunted social and economic development.
I propose legal amendment in this new law on anti-terrorism or Human Security Act of 2007, where provisions follow one another without logical connection; some sections contradict each other; while others simply make no sense. Worse, the HSA is a dangerous law for me, despite my affirmative belief that we have now laws to prosecute terrorists, however, its intent is contrary. Because it authorizes preventive detention, expands the power of warrantless arrest, and allows for unchecked invasion of privacy, liberty and other basic rights. Persons merely suspected of engaging in terrorism may be arrested without warrant and detained without charges.
More so, suspected terrorists, which are “revolutionary terrorists” in our law, may be placed under house arrest, prohibited from using their cell phones, computers and other means of communication, even when they are granted bail on the ground of evidence of guilt is not strong. They may also be subjected to surveillance and wiretapping, as well as examination, sequestration and freezing of bank deposits and other assets, on mere suspicion that they are members of a terrorist organization.
IV. Bibliography
A. Secondary Sources
Black’s Law Dictionary, (1968), 4th Edition, West Publishing Co.
Legal Jargon for Beginners (2005), A Codex of Terms, Acronyms, Idioms and Abbreviations on Philippine Law and Politics, Business and Computer Language and Law School Culture, Center for Legal Education and Research, Arellano Law Foundation.
Supreme Court Report Annotated (SCRA)
People vs. Lava, 28 SCRA 27, 16 May 1969, GR L-4974
Umil vs. Ramos, 187 SCRA 313, 9 July 1990, GR L-81567
People vs. Mapa, GR L-22301, 30 August 1967
B. Electronic/Online Sources
http://www.lawphil.net, Human Security Act (HSA) of 2007 or R.A. No. 9371 (Full Text), accessed on 18 July 2009.
http://www.lawphil.net, The Anti-Money Laundering Act (AMLA) or R.A. No. 9160 (Full Text), accessed on 18 July 2009.
http://www.un.org/secured/org/, A More Secure World: Our Shared Responsibility, accessed on 16 July 2009.
http://www.chanrobles.com, Chan Robles Virtual Law Library, Revised Penal Code of 1932 or R.A. No. 3815 (Book One and Two) 1930-12-08, accessed on 16 July 2009.
I. Introduction
On March 6, 2007, the “Human Security Act (HSA) of 2007, ” or otherwise known as, Republic Act (RA) No. 9372 was enacted by the 13th Congress of the Philippines and signed into law by the President of the Philippines, which took effect on July 15, 2008, providing legal framework for government’s anti-terrorism strategy and security policies.
The 35-page HSA ensures that any actions undertaken are done so within the bounds of law. It is declared to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.
This law was triggered after the tragic September 11, 2001 terrorist attack in the United States and several high-profile terrorist activities in the Philippines by extremist/terrorist Abu Sayyaf Group (ASG) and insurgent/terrorist Moro Islamic Liberation Front (MILF), both organizations are based in Mindanao; and the regional terror partner Jemaah Islamiyah (JI) from Indonesia which have mercilessly abducted and caused terror to foreigners and the Filipino citizens, as well. Most Muslim terrorist acts in the country are executed by these notorious groups that include the Sipadan-Sulu Hostage Crisis on April 2000, the Rizal Day bombing on December 2000, the Dos Palmas Kidnapping on May 2001, the Superferry bombing on February 2004, the Makati Valentine bombing on December 2005, and the Zamboanga bombing on October 2006; prior to the enactment of the HSA on March 2007.
Because terrorism is not only a local menace, it transcends global actions among countries that are threatened by this non-traditional security issue and transnational crime. The UN through the United Nations Human Rights Commission (UNHR) has to address terrorism as a universal problem many nations are currently facing.
In the Philippines, through this anti-terror law, the government can effectively pursue security imperatives without sacrificing civil liberties. However, legal experts deem that the HSA is the only Philippine law that specifically penalizes torture and imposes stiff penalties and fines on law enforces, provided by Section 24 of R.A. No. 9372.
II. Arguments to amend some provisions of the anti-terrorism law
A.Definition of HSA and terrorism in the Philippines is vague and broad
In my view of the newly adopted legislation, while well-intended, the Human Security Act is one of the most incoherent, disorganized and disjointed laws our Congress has ever passed. It is a mix-and-match collection of 62 sections and 22 provisions; and the law has no discernible structure, no headings or subheadings, and no groupings of sections.
The absence of the definition of terrorism makes the new law as vague, ambiguous and highly susceptible to abuse. With no objective standards to guide our law enforces, the HSA in effect bestows on law enforcers the unfettered discretion to decide if a person is engaged in terrorism or conspiracy to commit terrorism, which is very dangerous indeed.
The Human Security Act is also too broad. It is not in line with the definition proposed by the UN High Level Panel on Threats, Challenges and Change entitled “A More Secure World: Our Shared Responsibility,” published by the United Nations. Although, the universal definition of terrorism is still contentious and debatable, terrorism, according to UN’s former Secretary General Kofi Annan is the use of “violence against civilians for political reasons”. However, the UN High-Level Panel definition imposes that “the action must be intended to cause death or serious bodily harm to civilians or non-combatants.” This fundamental aspect of terrorist acts is not taken into account in the definition enshrined in the Filipino legislation.
B.Commission of Crime and Crimes Punishable with Terrorism
Before the Human Security Act of 2007, the Philippines relied on the Revised Penal Code of 1932, or R.A. No. 3815, which is a 77-year-old law now. Upon the enactment of HSA, criticisms were thrown, especially among the leftists or militants and civil libertarians or members of the civil society, that the new law will be used by the government to commit human rights abuses. However, the government panel said this law itself has many built-in safeguards against human rights abuses.
The HSA lists 11 crimes punishable with terrorism: piracy, rebellion or insurrection, coup d’etat, murder, kidnapping and serious illegal detention, arson, hijacking, highway robbery, illegal possession of firearms, violation of the Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990 and the Atomic Energy Regulatory and Liability Act of 1968.
The Anti-Terror Law made terrorism “a crime against the Filipino people, against humanity, and against the law of nations.” More importantly, three essential elements of the crime of terrorism should include:
1) The commission of one or more of the crimes enumerated above;
2) The commission of the crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and,
3) The purpose for the commission of the crime is to coerce the government to give in to an unlawful demand.
Although, the Human Security Act of 2007 does not have a landmark case yet, the Revised Penal Code has several benchmark cases, which may affirm or may reverse, provisions of the new law. For instance, in People vs. Lava, the Court defines rebellion, to wit: rebellion cannot be complexed with murder, arson, robbery and/or other common crimes, committed as means to or in furtherance of the rebellion charged. The reason is that political crimes are directly aimed against the political order and common crimes may be committed to achieve a political purpose. The decisive factor is the intent or motive.
On the other hand, Umil vs. Ramos, affirms that criminal law; habeas corpus; subversion; the crime of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State are in the nature of continuing crimes.
Lastly, in People vs. Mapa, the court held that it shall be unlawful for any person to possess any firearm, detached parts of firearms or ammunition thereof, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition. Firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the AFP, the PC, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails, are not covered when such firearms are in possession of such officials and public servants for use in the performance of their official duties. No provision is made for a secret agent.
The above-mentioned cases are already punishable under the Revised Penal Code; but as defined by HSA, these acts will be considered “terrorism” if it sows and creates a “condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give into an unlawful demand.”
In my view, there is lack of clear parameters in its listing of common crimes to convert to terrorism. For example, rebellion or insurrection is a crime against public order and is committed by rising publicly and taking arms against the government would necessarily sow and create a condition of widespread and extraordinary fear and panic among the populace. The HSA, in effect should obliterate rebellion and insurrection in our criminal laws and substitute them with the crime of terrorism.
Given the situation, could EDSA Revolution I, II, and III be considered as terrorist acts as it may be deemed by government as acts of rebellion or insurrection since it ebbed fear and caused extraordinary terror among the public or populace; and the call for the chief executive to vacate office may be deemed an unlawful demand under the law.
In my observation, after the controversial enactment of HSA, known terrorist groups such as the Abu Sayyaf Group (ASG), continuously commit crimes of terrorism by kidnapping for ransom and rebellion as a continuing crime against the Philippine government by instilling fears among the citizens and foreigners. Although, few terrorist leaders had already been caught by the law enforcers, however, the organization they represent does not deter them from continuously doing their criminal and terrorist acts.
Hence, criminalizing terrorist organizations and conspiracies are useless, impractical and ineffective in addressing the problem on terrorism. It may only result in the arrest of lots of small fry but will never stop the big fish behind those organizations.
C.Controversies on Wiretapping, Detention, and the Issue on Writ of Amparo
In the Declaration of Policy of the HSA, it explicitly expressed that “the State shall uphold basic rights and fundamental liberties of the people as enshrined in the Constitution,” and, further down, it reiterates that “powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times.”
On the issue on wiretapping, the law requires a written order of the Court of Appeals (CA) before authorities can “listen to, intercept and record any communication, message, conversation, discussion or spoken or written words,” between suspected terrorist groups or persons. A penalty of ten years and one day to twelve years of imprisonment for the liability attaching to the offender upon commission of the act.
In my view, the provision clearly violates due process, since those under surveillance or wiretapping are barred from participating in the proceeding to the detriment of their life and liberty. They are not to be informed of the application or any such authorization order against them. They are also not allowed to contest such application or any evidence that may be brought against them; neither are they allowed to present evidence on their own behalf. More so, they will be subjected to invasion of their privacy rights without due process for up to 60 days by a battery of law enforcement officers, and any recordings made or evidence obtained in violation of their privacy and due process rights may be used in evidence against them.
The law also expressedly stipulates the period of detention without judicial warrant of arrest and authorizes the police or law enforcement personnel who take custody of a suspect are required to “deliver said charged or suspected person to the proper judicial authority within a period of three days” or risk a long jail term.
In the said provisions, HSA follows the general rule that official duties are regularly performed by police officers, acting as mere agents of the state, in enforcing the said law. The state, on the other hand, cannot be sued without its consent and consent may be express or implied.
In the event of an actual or imminent terrorist attack, persons suspected of terrorism may be arrested and detained without charges for as long as the detention is approved by a judge of the municipal or regional trial court, the Sandiganbayan or a justice of Court of Appeals nearest to the place of arrest or by municipal, city, provincial or regional office of a Human Rights Commission, or, where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.
In my analysis in the said provision, it is not clear whether the Human Rights Commission mentioned here is the same as the constitutionally established Commission on Human Rights (CHR). Also, the two paragraphs in Section 19 are contradictory. While the latter requires personal delivery of the arrested person to the judge nearest to the place of arrest and the later appears to negate this requirement by asking only a written notice to the judge nearest to the place of arrest.
The writ of amparo is an order issued by a court to protect the constitutional rights of a person. The Supreme Court of the Philippines announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, 2007 which was deliberated by the En Banc Court last September 25, 2007.
However, skeptics believe that the said law has several effects which are dangerous piece of legislation in Philippine legislative history, threatening the Bill of Rights and contravening the constitutional provisions put in place to avoid a repetition of the horrors of martial law.
In my view, the judicial question on writ of amparo in prosecuting terrorists/insurgents is contrary to the spirit and intent of the Human Security Act of 2007. I believe that these and other similar provisions violate the right to liberty, to be presumed innocent, to due process of law, to equal protection under the law, to fair trial, to travel and to privacy of communication and correspondence.
D.Penalties and Damages
Other controversy in the provisions is stipulated in Section 26 of HSA which provides that persons who have been charged with terrorism or conspiracy to commit terrorism even if they have been granted bail because evidence of their guilt is not stronger and can be detained under house arrest; restricted from traveling; and/or, prohibited from using any cellular phones, computers or other means of communicating with people outside their residence.
Strongly stipulated in Section 50, it provides that any person accused of terrorism who is later acquitted by the court shall be entitled to the payment of P500,000 in damages for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation.
However, Section 41 provides that persons whose properties are seized, sequestered or frozen, but who are later acquitted or the cases against them dismissed, are entitled to P500,000 a day for the period in which their properties were seized, sequestered or frozen. The amount shall be taken from the appropriations of the police or law enforcement agency that caused the filing of the charges.
Hence, prior to the enactment of HSA, also a new law had been created by the Congress on terrorist financing. Based on intelligence report, some members of the Al Qaeda global terrorist network studied aeronautics and basic flying in Pampanga, Philippines in preparation of their successful terror attack in World Trade Center on the infamous 9/11 terrorist attacks in New York, USA. Foreign terrorists funneled through funds and money in Philippine banks to support terrorism.
Because of this and other increasing cases on terrorist financing since the 9/11 terrorist attack, the Philippine Congress immediately passed another controversial law, which is the R.A. No. 9160, also known as, The Anti-Money Laundering Act (AMLA) of 2001. The AMLA’s mission includes the following:
1. To protect and preserve the integrity and confidentiality of bank accounts.
2. To ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity.
3. To extend cooperation in transnational investigation and prosecution of persons involved in money laundering activities whenever committed.
Although, detention premised on suspicion of involvement in a future crime is unacceptable in a supposedly democratic society that operates, among others, on the presumption of innocence among those accused. Restricting the suspects' right to travel and depriving them of their right to privacy also do not bode well for a government that is supposed to protect and uphold civil rights of all people, including those charged with crimes. What proves to be worse is people being presumed guilty by association and consequently penalized by seizing, sequestering and freezing their assets.
In the final analysis, I reiterate that it only proves that Human Security Act of 2007 is the only Philippine law that specifically penalizes torture and imposes stiff penalties and fines on law enforcers.
Below is the list of the provisions stipulated in the HSA with corresponding penalties:
Human Security Act of 2007
Selected Provisions Penalties
Section 10
Effective Period of Judicial Authorization Penalty of ten years and one day to twelve years of imprisonment
Section 11
Custody of Intercepted and Recorded Communications Penalty of six years and one day to twelve years of imprisonment
Section 12
Contents of Joint Affidavit Penalty of not less than ten years and one day to twelve years of imprisonment
Section 13
Disposition of Deposited Materials Penalty of six years and one day to eight years of imprisonment
Section 16
Penalty for Unauthorized or Malicious Interception and/or Recordings Penalty of ten years and one day to twelve years of imprisonment
Section 18
Period of Detention Without Judicial Warrant of Arrest Penalty of ten years and one day to twelve years of imprisonment
Section 20
Penalty for Failure to Deliver Suspect to the proper Judicial Authority Penalty of ten years and one day to twelve years of imprisonment
Section 22
Penalty for the Violation of Rights of a Detainees Penalty of ten years and one day to twelve years of imprisonment
Section 23
Requirement for an Official Custodial Logbook and Its Contents Penalty of ten years and one day to twelve years of imprisonment
Section 25
Penalty for Threat, Intimidation, Coercion, or Torture Penalty of twelve years and one day to twenty years of imprisonment
Also when death or serious permanent disability of said detained person occurs as a consequence of the use of such threat, intimidation, or coercion, or as a consequence of the infliction on him of such physical pain or torment, or as a consequence of the infliction on him of such mental, moral or psychological pressure.
Section 30
Effective Period of Judicial Authorization to Examine and Obtain Information on Bank Deposits, Accounts and Records Penalty of ten years and one day to twelve years of imprisonment
Section 31
Custody of Bank Data and Information Obtained After Examination of Deposits, Assets and Records Penalty of not less than six years and one day to twelve years of imprisonment
Section 32
Disposition of Bank Materials Penalty of six years and one day to eight years of imprisonment
Section 36
Penalty for Unauthorized or Malicious Examination of Bank or Financial Institutions Penalty of ten years and one day to twelve years of imprisonment
Section 38
Penalty for False or Untruthful Statement or Misrepresentation of Material Fact Penalty of ten years and one day to twelve years of imprisonment
Section 39
Seizure and Sequestration Penalty of ten years and one day to twelve years of imprisonment
Section 40
Disposition of Seized, Sequestered and Frozen Bank Records Penalty of payment of Php 500,000/day upon acquittal or dismissal of charges
Section 42
Penalty for Unjustified Refusal to restore or Delay in Restoring Seized, Seized, bank Records and Assets Penalty of ten years and one day to twelve years of imprisonment
Section 43
Penalty for Loss, Misuse, Diversion of Frozen Bank Records Penalty of ten years and one day to twelve years of imprisonment
Section 46
Penalty for Unauthorized Revelation of Classified Materials Penalty of ten years and one day to twelve years of imprisonment
Section 47
Penalty for Furnishing False Evidence, Forged Documents or Spurious Evidence Penalty of twelve years and one day to twenty years of imprisonment
Section 50
Damages for Unproven Charge of Terrorism Payment of Php 500,000.00/day
A total of 22 provisions
Source: The researcher modified the provisions from the full text of HSA (2007).
III. Conclusion
The Philippines continues to be a prey of terror acts; whether by communist terrorists or Muslim terrorists, the country still experiences kidnappings of foreigners and fellow Filipinos that have become a “cottage industry” in Mindanao and other remotest areas in the country, where decades of rebellion have stunted social and economic development.
I propose legal amendment in this new law on anti-terrorism or Human Security Act of 2007, where provisions follow one another without logical connection; some sections contradict each other; while others simply make no sense. Worse, the HSA is a dangerous law for me, despite my affirmative belief that we have now laws to prosecute terrorists, however, its intent is contrary. Because it authorizes preventive detention, expands the power of warrantless arrest, and allows for unchecked invasion of privacy, liberty and other basic rights. Persons merely suspected of engaging in terrorism may be arrested without warrant and detained without charges.
More so, suspected terrorists, which are “revolutionary terrorists” in our law, may be placed under house arrest, prohibited from using their cell phones, computers and other means of communication, even when they are granted bail on the ground of evidence of guilt is not strong. They may also be subjected to surveillance and wiretapping, as well as examination, sequestration and freezing of bank deposits and other assets, on mere suspicion that they are members of a terrorist organization.
IV. Bibliography
A. Secondary Sources
Black’s Law Dictionary, (1968), 4th Edition, West Publishing Co.
Legal Jargon for Beginners (2005), A Codex of Terms, Acronyms, Idioms and Abbreviations on Philippine Law and Politics, Business and Computer Language and Law School Culture, Center for Legal Education and Research, Arellano Law Foundation.
Supreme Court Report Annotated (SCRA)
People vs. Lava, 28 SCRA 27, 16 May 1969, GR L-4974
Umil vs. Ramos, 187 SCRA 313, 9 July 1990, GR L-81567
People vs. Mapa, GR L-22301, 30 August 1967
B. Electronic/Online Sources
http://www.lawphil.net, Human Security Act (HSA) of 2007 or R.A. No. 9371 (Full Text), accessed on 18 July 2009.
http://www.lawphil.net, The Anti-Money Laundering Act (AMLA) or R.A. No. 9160 (Full Text), accessed on 18 July 2009.
http://www.un.org/secured/org/, A More Secure World: Our Shared Responsibility, accessed on 16 July 2009.
http://www.chanrobles.com, Chan Robles Virtual Law Library, Revised Penal Code of 1932 or R.A. No. 3815 (Book One and Two) 1930-12-08, accessed on 16 July 2009.
Basic Laws in Philippine Disaster Management and Multilateral Approaches for Effective Response to Natural Disasters in Asia
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| Photo from Rappler |
I. Introduction
The developments of various forms of multilateral initiatives have been a major feature in the Asia Pacific region in the past decade. The ASEAN Regional Forum (ARF) is one, formally established in 1994 as a forum for multilateral security dialogue, has brought countries on both sides of the Pacific Rim into much closer interaction with each other. Besides in this formal organization there are also several multilateral initiatives undertaken by scholars and other members of civil societies together with government officials in their private capacities, usually known as Track Two initiatives. All of these activities are aimed at promoting regional security and prosperity through the growth of greater understanding and interdependence among the participants, with the ultimate objective of creating an Asia Pacific community.
In accordance with the Chairman's Statement of the Fifth ASEAN Regional Forum (Manila, 27 July 1998) and in pursuance of the recommendations of the Second Inter-Sessional Meeting on Disaster Relief (ISM-DR) at Bangkok on 18-20 February 1998, the Third ARF Inter-Sessional Meeting on Disaster Relief was held on 11-14 April 1999 in Moscow. The meeting was organized by the Russian Federation and Vietnam and attended by delegations from 21 ARF participants. Representatives of the International Federation of Red Cross and Red Crescent Societies (IFRC), the International Committee of the Red Cross (ICRC), the ASEAN Secretariat, the Asian Disaster Preparedness Center (ADPC), the Asian Disaster Reduction Center (ADRC) and the Inter-State Council on Natural and Man-Made Disasters participated as resource persons and guest speakers. Most delegations included representatives of their respective Ministries of Foreign Affairs and Defense as well as other agencies involved in disaster management. It was recognized by participants that bringing together defense and non-defense officials is serving the overall objectives of confidence building of the ARF. It was also noted that for the first time in ARF history the ISM-DR was co-chaired by representatives of disaster management agencies.
In promoting effective coordination during disasters, cooperation and effective response must come together. Cooperation with regard to disaster-preparedness and response referred to in NATO as “civil emergency planning”. This has been taking place between NATO countries for years. It was extended to include Partner countries in the 1990s and makes up the largest non-military component of Partnership for Peace activities. Effective responses to disasters call for the coordination of transport facilities, medical resources, communications, disaster-response capabilities and other civil resources. All countries are responsible for ensuring that plans are in place at the national level for dealing with emergencies. However, given the potential cross-border character of some disasters and the need to be able to respond effectively to the calls for international assistance, cooperation and planning at the international level is indispensable. Other international organizations, such as the ASEAN Committee for Disaster Management (ACDM), the UN Office for the Coordination of Humanitarian Affairs and the Office of the UN High Commissioner for Refugees (UNHCR), the International Atomic Energy Agency and the European Union, are also important participants, as non-governmental relief organizations.
II. Preparing for Disasters in the Philippines
The Philippines is an archipelago located in the Ring of Fire. It lies between the two major tectonic plates and in one of the typhoon belts of the world. The country’s geologic and geographic condition as well as physical configuration allow it to experience manifold hazards every year which have resulted to gargantuan losses in the lives and property of the Filipino people.
Disasters (Duque: 1999) have always been part of life of the Filipino and learned to live with them. Their resiliency to overcome these difficulties is a symbol of the steadfastness of the Filipinos who have always remained undaunted despite these adversities that way. Deeply concerned with the serious effects of disasters, upon the lives and properties of the people, and realizing the fact that disasters occurrence has to be a way of life of the Filipinos due to its geographical location, the Government of the Philippines has instituted to counteract the ill-effects of disasters in terms of laws and regulations, organizations and Disaster Management Planning among others.
According to the Philippine Center for Investigative Journalism (PCIJ) Report in 2006, Filipinos cannot avoid the wrath of nature and bear the brunt of disasters like the Mt. Pinatubo eruption that caused thousands to flee and the Ormoc flood that left thousands dead. But they can mitigate the impact of disasters by being prepared. It was after the 1984 typhoon that Lugsongan began a disaster preparedness program with the help of Philippine National Red Cross (PNRC). Because of these disaster preparedness programs they are able to draw more lessons to be learned:
1) Disaster Action Team was created and public meetings were held to identify which households were most vulnerable to natural hazards.
2) The community then made plans on how to improve their safety and using volunteer labor, built an evacuation center that provided Lugsongan residents refuge and saved their lives in 2001.
3) Lugsongan is perhaps one of the best arguments for disaster preparedness and of involving communities in such programs.
Its story illustrates the wisdom of letting people know what hazards they face and what they can do before, during and after a natural disaster to limit damage to their property and keep casualty count as low as possible. There are many other factors to consider in dealing with disasters in the Philippines:
a) People matter the most is that they should be engaged in disaster preparedness, yet in a country that is highly vulnerable to disasters – community-based disaster preparedness remains in its infancy.
b) Still dominant is a centralized disaster management system that is largely response-oriented or which springs into action only after a calamity occurs.
c) Experts say that there are many other disasters that escape the news but cause damage to the lives of the poor, locking them even more to the cycle of poverty.
d) From 1994 to 2003, an average of 2.1 million Filipinos was affected by natural disasters each year, with about 650 people dying annually.
e) A World Bank study also says that the country’s vulnerability to natural hazards costs the government an annual average of 15 billion in direct damages or more than 0.5 percent of the country’s gross income.
f) The same study makes the case for an effective preparedness program – “a dollar spent on preparedness saves seven dollars on response.” Initiatives focused on building community disaster preparedness and response capacity is particularly important. Efforts directed at this level do not necessarily involve great expense, particularly if all stakeholders work together with clear goals, roles and responsibilities.
g) Any kind of disaster preparedness program necessitates accurate information about the specific vulnerabilities and risks faced by a community.
h) Hazard mapping is considered by experts as key to community-level disaster preparedness, however, disaster preparedness has to be seen from a more thorough perspective and not just a technical one.
III. Basic Laws and Organizations of Disaster Management Program in the Philippines
The Basic Law in the implementation of disaster management program in the Philippines (Duque: 1999) is based on the Presidential Decree (PD) No. 1566, stating that, this Decree which was promulgated on June 11, 1978 calls for the “Strengthening of the Philippine Disaster Control Capability and Establishing the National Program on Community Disaster Preparedness”. Its salient provisions include:
1) State policy on self-reliance among local officials and their constituents in preparing for, responding to and recovering from disasters.
2) Organization of the National, Regional and Local Disaster Coordinating Councils (DCCs).
3) Preparation of the National Calamities and Disaster Preparedness Plan (NCDPP) by the Office of Civil Defense and implementing plans by the NDCC member-agencies and local DCCs.
4) Conduct of periodic drills and exercises by concerned agencies and local DCCs.
5) Authority for the local government units to program funds for disaster preparedness activities such as the organization of DCCs, establishment of Disaster Operations Center (DOC) and training and equipping of DCC response teams. This is in addition to the five percent under Sec. 324 (d) of the Local Government Code of 1991, as amended.
In implementing Rules and regulations of PD 1566, the disaster management activities of DCC member-agencies as well as procedures and guidelines for inter-agency coordination and dissemination of information during the three (3) phases are defined, namely:
1) Pre-Disaster Phase which includes planning for disaster, organizing, training, drills, stockpiling, resource data canvassing, public information/awareness drive, communications and warning activities.
2) Emergency Phase
3) Post-Emergency Phase
Other laws pertaining with disaster management provisions (Duque: 1999) are the following:
1) PD 1096 - Otherwise known as the National Building Code of the Philippines. It specifies minimum requirements and standards on building design for buildings to protect against fires and natural disasters.
2) Rule 1040 of the Occupational Safety and Health Standards (as amended) provides for the organization of disaster control groups/health safety committee in every place of employment and the conduct of periodic drills and exercises in work places.
3) PD 1185 Otherwise known as the “Fire Code of the Philippines”. This Decree requires, among others, the administrators or occupants of buildings, structures and other premises or facilities and other responsible persons to comply with the following: a) Inspection requirement by the Bureau of Fire Protection as a prerequisite to the grant of permits and/or licenses by LGUs or other government agencies concerned; b) Provisions for safety measures for hazardous materials as well as for hazardous operations/processes; c) Provisions for fire safety construction, protection and warning system such as firesprinklers, alarm devices, firewalls, fire exit plan, etc; d) Conduct of periodic fire and exit drills.
4) R.A. 7160 otherwise known as the Local Government Code (LGC) of 1991, as amended. The LGC of 1991 contains provisions supportive of the goals and objectives of the disaster preparedness, prevention/mitigation programs. These provisions of the LGC reinforce the pursuit of Disaster Management Program at the local government level.
For the Organizational Structure of Disaster Management Program in the Philippines, to put it more aptly, the disaster management involves many players in the bureaucracy, there exists a National Disaster Coordinating Council (NDCC) chaired by the Secretary of National Defense, with the Administrator, Office of Civil Defense as its Executive Officer with membership from all executive departments. The NDCC is the coordinating and supervising body at the national level for disaster management in the country. NDCC has direct local links, which are themselves coordinated through Regional, Provincial, Municipal/City Disaster Coordinating Councils. The disaster management authority is the Office of Civil Defense (OCD) under the Department of National Defense. Thus, the basic Philippine law on disaster management (Duque: 1999), under PD 1566, promulgated in 1978, provides for the organization of multi-sectoral disaster coordinating councils at every level of government, from the national level to the barangay (or village) level. Through these disaster coordinating councils, which are able to link with all relevant government agencies and civic organizations, Philippine communities mobilize resources and capabilities needed to manage disasters.
IV. Multilateral Approaches
ASEAN (Anwar: 1991) has been able to deploy its growing weight and international stature to advance both its collective interests and the interests of individual members in various international fora. The effectiveness of these multilateral approaches has been a major factor for the members' continuing support for ASEAN even when other achievements have not always been wholly satisfactory.
The last decade has witnessed a paradigm shift in most organizations and agencies from a traditional relief and disaster preparedness focus, towards a developmental approach incorporating hazard mitigation and vulnerability reduction concerns. In parallel with this paradigm shift, there has been growing evidence showing that top-down approaches may lead to inequitable, unsustainable and irrelevant results. Many top-down programs fail to address the specific local needs of vulnerable communities, ignore the potential of local resources and capacities and may in some cases even increase people's vulnerability. By the time of the World Conference on Natural Disaster Reduction, held in Yokohama, Japan in 1994, a broad consensus was emerging in favor of Community Based Disaster Management (CBDM) approaches, which was later reflected in the Yokohama Message and Strategy.
In the emergency planning and disaster management fields, information—especially the right information—is crucial in preparing for and responding to disasters. In partnership with the ASEAN Committee on Disaster Management (ACDM), the Pacific Disaster Center (PDC) has developed a comprehensive program named the Disaster Information Sharing and Communications Network (DISCNet) to facilitate information sharing among ASEAN’s 10-member countries. DISCNet evolved from the 2004 conference announcing the "Launching of the ASEAN Regional Program on Disaster Management," held in Bali, Indonesia. During the workshop, information sharing was identified as a strategic priority.
Later in the Philippines, in order to create this network, the Pacific Disaster Center (PDC) and National Disaster and Coordinating Council (NDCC) conducted in-country Information and Communications Technology (ICT) Assessments, visiting with disaster management officials in every ASEAN member nation. These assessments were then compiled into an ICT Report identifying information and technology gaps, and providing a tool for officials to actively seek funding to fill these gaps. The ICT Report, and the ability it gives officials to identify gaps, is a key component of DISCNet. Another element of the project is the linking of disaster-related web sites from all the ASEAN countries—a task successfully completed in early 2005. A third element of DISCNet is promoting the networking capabilities of various member nations by supporting regional disaster mitigation exercises. This is currently being pursued in partnership between PDC, ACDM, and ASEAN-member nations. As these countries rebuild and others prepare for possible future disasters, the ability of disaster managers to work collaboratively on a regional basis becomes increasingly important. Because DISCNet is informative and easy to use, representatives of ASEAN member countries have whole-heartedly endorsed the program and welcome the ability to use it as a tool to strengthen their disaster management capabilities.
Furthermore, (Anwar: 1991) where multilateral efforts can be carried out without encountering too much nationalist sensitivity or security paranoia is in dealing with natural disasters, such as earthquake, flood, typhoon and draught. Since the multilateral assistance offered will be in the nature of humanitarian relief, most countries affected by the disaster will usually be grateful for any help they can get.
V. Disaster Reduction Cooperation among Asian Neighbors
While the Philippines (Duque: 1999) has largely relied on its own resources to manage the disasters it had encountered, it has also benefited from tremendous international, and particularly Asian cooperation in this field. The similarity in the types and severity of disaster exposure shared by Asian countries make this useful and important. For the Philippines, this cooperation has contributed to the rapid development of national and local disaster management capabilities. She sets examples, such as, in terms of transfer of technology and training in disaster reduction, the Philippines has benefited from international cooperation in such examples as training of Filipino experts on Japan on disaster prevention technology and administration, improving cyclone warning response, and a seismic engineering; in Thailand on disaster management at the Asian Disaster Preparedness Center, and in Australia or radiological emergencies. Another is, in terms of receipt of disaster relief assistance, the Philippines has benefited from generosity and kindness of many governments and nations. The extent of this foreign assistance is such that the Philippine has developed and implemented guidelines for the smooth and expeditious handling and receipt of food, clothing, medicines and equipment donated by foreign governments and civic organizations for disaster relief and rehabilitation. The Office of the President serves as the primary conduit for all these donations to be channeled to the affected communities.
In fact, these illustrative examples cited point to the catalyzing role of international cooperation. It brings new and added capabilities, which may not have been fully developed yet in the country (Duque: 1999). It also increases the benefits of sharing so that the benefactor as well as the recipient gains something from their cooperation. While international cooperation in disaster reduction has been extensive and gratifying thus far, there could be other areas of possible improvements in this field of international cooperation.
During the Third ARF Inter-sessional Meeting on Disaster Relief at Moscow, Russia, It was stressed that regional cooperation issues should be closely inter-connected with improvements in the regional security environment It is also vital to maintain transparency and openness and to work out certain criteria for cooperation. The Meeting welcomed the offer by the Philippines to convene an ARF Conference on Enhancing Capacities of Early Warning Systems. The proposed Conference was considered by the delegates to be an important step for improving individual national capacities in early warning systems and enhancing cooperation among ARF participants. The Asian Disaster Preparedness Center (ADPC) also offered to collaborate with the Philippines on this activity and to assist with an inventory of early warning systems and experts. And in respect to the Philippine's proposal, the US reaffirmed its earlier offer to fund the compilation of an inventory of existing early warning systems and leading experts that could be used by the Philippines to help structure and conduct the proposed Conference. The inventory will be undertaken by the ADPC and was made available to the Philippines by late August 1999.
In terms of disaster management and response, the Meeting reaffirmed its commitment to work on the development of national and international disaster-related capabilities, to capitalize on existing arrangements and resources, and to enhance coordination between the ARF and disaster-related regional and international institutions. Most of the delegates acknowledged the supportive role of the military in disaster relief. It was noted that national and multilateral military capabilities should be engaged in disaster relief operations according to the concrete circumstances and the regulations in each country, in a transparent manner, but only upon the request of the country suffering damage. Also, some delegates were of the view that since a focus of the ARF is on confidence building measures among the military, issues of disaster relief cooperation should contribute to enhancing contacts among ARF participants, including military-to-military, and complement rather than duplicate other agencies' activities and avoid projects that put heavy financial or organizational burdens on ARF participants. Nevertheless, the Meeting discussed suggestions to explore ways to enhance bilateral and multilateral cooperation in disaster relief involving the military on a voluntary basis.
VI. Prospects for Further International Cooperation and Ongoing Local Initiatives by NDCP
In this area (Duque: 1999), there are a number of areas which offer good prospects for international cooperation in disaster reduction:
1) Strengthening collapsed building rescue capabilities. This specific area of disaster management is a priority area of the Philippines because of its high exposure to earthquake risks. While a Philippine task force trained and equipped for collapsed building rescue currently exists, its capabilities need to be strengthened and broadened in terms of advanced specialized training, equipage and more exposure to varied real-life rescue operations.
2) Developing a national center for disaster research and training: In the light of the frequency, variety and severity of disasters in the Philippines, the government has seen the need for a specialized technical center for training and research in various aspects of disaster management. This center can specialize in those areas of concern to the Philippines and may be linked with other similar centers abroad.
3) Mobilizing information technologies for disaster management: A broad class of information technologies such as geographic information systems, database management systems and other rapid analysis and presentation systems are currently available and useful for disaster management. The hardware, software and model uses of such technologies that can be made available to Philippine disaster management. organizations will provide a tremendous boost its disaster preparedness and disaster reduction endeavors.
4) Systematic disaster capabilities planning: Current knowledge about the nature of disaster risks in various communities and areas of the Philippine could be matched by a set of appropriate disaster management capabilities that may need to be developed in those areas or communities. This could serve as the basis for upgrading current disaster preparedness plans. Such a systematic effort could be undertaken with international cooperations and a special support program so that a better matching of risks and capabilities is achieved.
On the other hand, the corporate sector (Lawenko:1997) in the Philippines presents an excellent case of networking and partnerships to deal with disasters. In the Philippines, the corporate sector significantly contributes to development work as an expression of what is commonly termed as Corporate Social Responsibilities (CSR). Disaster response has traditionally been one of the important CSR themes. However, in the past few years, corporate philanthropy has evolved into unique, effective partnerships and networks that emphasize on long-term strategies rather than on one-time input. One of the significant developments has been the emergence of the Corporate Network for Disaster Response (CNDR). The network was formed in 1990 as a loose alliance of business organizations who responded to the needs of the victims of Baguio earthquake. Organizations like the Philippine Business for Social Progress (PBSP) played an instrumental role in its formation. CNDR is a voluntary alliance of private corporations, business associations and corporate foundations operating in the Philippines bound by a common interest of disaster prevention, mitigation and preparedness. Uniqueness of the network lies in the pioneering role it has taken to propagate mitigation (long-term) strategies rather than just immediate relief (short-term).
In the advent of a regional catastrophe just like the fatal natural disaster of December 26, 2004 which triggered the South Asian Tsunami causing thousands of death tolls and millions of homeless families across three continents and twelve countries. After eight hours of simultaneous earthquakes and tidal waves in Indian Ocean, affected countries have combated another problem – the waves of diseases. In its aftermath, the relief effort has become global and vast, thus the worst hit countries are mostly poor and shaken up by political landscapes like Aceh (closest to the epicenter) of Indonesia. According to Carter (1991), when a country is struck by disaster there is usually widespread international reaction to offer assistance. This certainly applies when the stricken country is in developing category and therefore has limited capability for response and recovery.
In 6 January 2005, President Yudyohono of Indonesia had hosted an emergency tsunami summit, organized by the 10-member states of ASEAN and more than 20 heads of state, including Premier Wen of China, and representatives of international organizations convened in Jakarta. Thus, Japan has raised pledge from $30 million to $500 million and China has given a pledge of $60 million.
Hence, some scientific communities are convinced that what may have become the problem was the slowness and failure to act during those times of uncertainty. Some scientists in Asia-Pacific have even doubted the role of Hawaii’s Pacific Tsunami Warning System to post advisory and warning in the pacific during disasters, which is only about 1,200 miles from the epicenter in Aceh. Because of this, the United Nations is expected to upgrade a sensing network in the Indian Ocean similar to the one in the Pacific.
After learning its lessons, in 16 May 2006 the Pacific Tsunami Center in Hawaii alerted 28 countries around the Pacific to participate in a drill called, “Exercise Pacific Wave” to test countries of the abilities to respond to a real emergency situation. Since the 7.9-magnitude earthquake hit Tonga on 3 May 2006, the Pacific Tsunami Warning Center has experienced a spike in replies to invitations about the test that were sent out by a UN agency two months ago. The earthquake drills were simulated in Chile and Taiwan’s southern coast, and the fake tsunami warnings were issued to all countries, including the Philippines, in which Albay (having the Mt Mayon as a tourist destination) represented the country in the said simulation exercises. According to Filipino scientists, although it escaped the deadly 2004 tsunami that ravaged its neighbors, the Philippines should brace for killer waves because it lies in a geologically dangerous region and has a recent history of tsunami devastation (PHIVOLCS: 2006). Furthermore, Phivolcs which monitors volcanic eruptions, earthquakes, and tsunami, as what its resident scientists deem that it’s important always to be prepared and that people are not exposed to hazards of disastrous events. In fact, after learning the lessons of the sudden killer tsunami, many countries has forged agreements, scientific exchanges and cooperation, mounted multi-sectoral workshops and conferences, dole out aids and pledges.
Last May 25-26, 2006 The Cross-Cutting Capacity Development (3cd) Program of the Earthquakes and Megacities Initiative (EMI) held a Map Viewer Users’ Training in collaboration with the Pacific Disaster Center (PDC), Philippine Institute of Volcanology and Seismology (PHIVOLCS), and Metro Manila Developing Authority (MMDA) at the NDCP. These agencies have developed a Geographic Information System (GIS) database for the Internet Map Viewer using the results of the Metro Manila Earthquake Impact Reduction Study (MMEIRS). The Map Viewer Users’ Training aims to increase the awareness and understanding of selected participants from Local Government Units (LGUs) and government agencies regarding disaster risk management in Metro Manila and to familiarize the participants with the use and application of the Map Viewer for their respective disaster risk reduction activities. Hence, the MMEIRS are now made accessible on the Internet to various stakeholders who are working towards a safer and disaster-resilient Metro Manila.
The Emergency Management Institute of the Philippines (EMIP), now renamed as Crisis Management Institute (CMI) of NDCP is also responsible for offering short courses like the following:
1) Basic Disaster Management Training Course - The Basic Disaster Management Training Course provides background on disasters, linking disasters with development, covering pre-disaster (mitigation, preparedness), actual disaster (response) and post-disaster (relief, rehabilitation and reconstruction). The training course includes lectures, case studies and exercises to enhance awareness on the key concepts and principles on various aspects of disaster management.
2) Advanced Disaster Management Training Course - The Advanced Disaster Management Training Course takes students forward from the Basic Disaster Management Training Course reviewing what has been taught before on the concepts and principles of all aspects of disaster management and seeks confirmation by student interaction. It is designed to primarily consider vulnerability, mitigation and preparedness measures as well as integrated planning on disaster management.
3) Seminar on Critical Infrastructure Security - This seminar is designed to equip mid-level executives in the public sector with the necessary tools in planning for the protection of critical infrastructures (CI). It forms part of an evolving process in developing an effective CI protection training program. This activity aims to assist agencies in developing their respective CI protection plans.
4) Seminar on Weapons of Mass Destruction - This seminar seeks to enhance awareness on threats involving chemical and biological weapons of mass destruction (WMD). It also clarifies the role of each responding agency in WMD incident and highlights the capabilities of the Philippine government in responding to terrorist incidents involving chemical and biological weapons of mass destruction.
5) Cyber Terrorism Executive Seminar - this seminar provides an overview of concepts and principles in cyber terrorism, general trends in international cyber terrorism and the threats posed by cyber terrorists groups. It also identifies historical trends in cyber terrorism and how law enforcement and private industry can prepare and respond to such threats. It also introduces tools and techniques in protecting digital infrastructure.
6) Crisis Management Seminar - The Crisis Management Seminar includes lectures, case studies and exercises to enhance awareness on the key concepts and principles on various aspects of crisis management. It aims to assist participants in enhancing their awareness and skills in the management of crisis; developing and/or strengthening their agencies’ crisis management plan; increasing their level of security awareness; and identifying and managing risks to critical infrastructure.
VII. Conclusion
At the Third ARF Inter-sessional Meeting on Disaster relief, a number of participating countries have pledged for comprehensive presentations on their national experiences and national delivery mechanisms for dealing with natural and man-made disasters. Delegates reiterated the need to continue bilateral and multilateral cooperation in sharing information and accumulated experiences in Disaster Management, Preparedness and Relief among ARF participants. Special emphasis was placed on utilization of advanced technologies to forecast and prevent natural disasters.
For the Philippines, it is also open for possible international cooperation on disaster management. Filipinos have learned that disasters do happen, but their destructive force can be mitigated with good planning, prompt action, and constant preparation. International cooperation and support has helped improve Philippine response in all these fronts. It is hoped that such cooperation will continue to be satisfying to all its participants, and that all nations gain by helping each other (Duque: 1999).
Today, the National Disaster Coordinating Council has partnered with international organizations to mitigate natural disasters and has been lobbying to give teeth to the Office of Civil Defense (OCD) to strangthen the power of the said government agency through the DRM bill. It could not be denied though, that Philippines has been battling supertyphoons, floods, el nino, and unusual "hurricane". The recent floods caused by tropical storm Ondoy (international name Ketsana)has caused floods, deaths and damages in Metro Manila and nearby areas, proved that issues on climate change must also be given priority for legislation.
In global terms, unless disaster can be mitigated and managed to the optimum extent possible, it will have a dominating effect on the future (Carter: 1991). The world is already facing a range of environmental and subsistence crises. Disaster mitigation should be regarded as an important tool in successfully coping with the crises.
VIII. References
Anwar, Dewi Fortuna. (March 26-28, 2001). Challenges for the Years Ahead: An Indonesian Perspective. Paper presented at the Annual Pacific Symposium co-sponsored by the United States Pacific Command and the Asia-Pacific Center for Strategic Studies. Hilton Hawaiian Village, Honolulu,.
Carter, Nick. (1991). Disaster Management: A Disaster Manager’s Handbook, Manila: Asian Development Bank.
Co-Chairmen's Report of the Third ASEAN Regional Forum Inter-Sessional Meeting on Disaster Relief, (April 11-14, 1999). Moscow: Russia.
Duque, Priscilla Panela. (December 6-9,1999). Philippines Country Report 1999. A Paper presented to 2nd Asian Disaster Reduction Center International Meeting, Kobe: Japan.
Lawenko, Rene C. (1997). Corporate Initiatives in the Philippines on Disaster Management. Asian Disaster Management News (Vol_ 3, No_ 2, June 1997).htm
Philippine Center for Investigative Journalism. (Mar-Apr & May-Jun 2006). Preparing for Disaster.
Maskrey, Andrew & Jegillos, Sanny. (1997). Promoting Community-based Approaches in Disaster Management. Asian Disaster Management News (Vol_ 3, No_ 2, June 1997).htm
Electronic Resources:
http://www.pdc.org/PDCNewsWebArticles/2005ASEAN/
http://www.unisdr.org/wcdr/thematicsessions/presentations/session52/acdm.pdf#search='asean%20committee%20on%20disaster%20management'
www.aseansec.org.
Thursday, January 15, 2009
Virtual Ethnography 101: A Tour to Asia's City of Life
Copyright © 2009 by Chester B. Cabalza
Rainy June when we visited Hongkong for a five-day vacation, but as fate would have it, when we arrived to this affluent erstwhile British colony, my dad got sick. Mom and dad quickly quarantined themselves in their hotel room for a day but with an instant medication from my physician brother. After a quick recuperation from mild fatigue, he later enjoyed the remaining trips.
That week the weather turned gloomy in the city. Thick gray clouds roofed the islands, while showers of rain dripped over the windowpane of the classic yet modern elevating tram, when we reached this breathtaking famed zenith. The tram was designed elegantly to transport tourists atop Victoria Peak – acropolises of the rich and famous denizens in Hongkong.
The islands of Hongkong and Kowloon, 693 miles away from topsy-turvy Metro Manila, sparkled beautifully. It magically coated the sky with rainbow colors that surely awed us. From Victoria Peak, overlooking handsome skyscrapers and green mountains, flanked by panoramic harbor and opulent condominiums, the view transformed into a postcard shimmering in our weary minds.
It eased my childlike admiration of a megacity and virtually massaged dad’s body aches; becoming therapeutic for a weakening soul. From blue to orange painted sky, it magnified the glaze of sunset.
At dusk, steel and glass edifices and numerous ultramodern architectural wonders, reverberated with glowing bright colors. Atop was windy yet full of merry sightseers while looking at the towering skyline. Then, we chatted with friendly people and heard fine testimonials from fellow tourists. We laughed and shared inspiring tales at the center of this global city. And for me, that moment was a perfect setting for us as family.
There was magic at the harbor.
Light rain sprinkled but raindrops soaked us.
Nevertheless, the harbor’s natural beauty, entwined by eastern and western cultures, incessantly gleamed. This reflected China’s gem as one of the continent’s truly dynamic and uniquely Asian tiger. Dancing lights glistened and wavered the way a dragon play with firing balls when excited. Neon lights extendedly surprised almost all travelers. It was only then when I knew the essence of HK’s slogan as the City of Life!
Buildings here are designed and constructed following the primordial influence of feng (wind) and shui (water) to cast away bad spirits and welcome luck. This is a belief of putting things into equilibrium, or in perfect harmony, making Chinese people generally superstitious. They love every single drop of rain. Having been appropriated this blessing with prosperity and money. Remember shui?
The next day’s tour was in Ocean Park and Hongkong’s Disney Land. But the couple had been arguing, especially for dad who wanted to buy Chinese herbs to increase his sex hormones. For an old man seduced at enhancing his ego in bed.
“Stop mimicking me when I say these words to all of you…China cures everything!” dad admonished us, “then you start laughing at me! Why? It is true when I say that medicines in China are miraculous!” dad’s words to mom.
“I thought you had already taken your viagra,” mom would instead tease him.
At night, my three brothers and me would go out for a stroll and shopping spree in Mongkok. A known flea market where a plethora of bogus branded goods is for sale. There we shopped until midnight and practiced briefly how to haggle and bargain - the Hongkong style. Although, buying stuffs here were differently done in Manila, silently, we refused to entertain noisy and aggressive vendors.
Some would mouth us over if we refused to buy their goods. Unfortunately, I even experienced to be embarrassed and shouted at by an angry old woman when I tried to wear a fake Rolex watch from her store, and helplessly, had done nothing to refute myself. In my astonishment, I just kept quiet. Not even appeased by my rough kuya Carlo, who remained urbane, to the rude and aged female Chinese hawker!
Again, glowing and brightly colored billboards, emblazoned with Chinese characters, were massively hanged all over the merchandises. Young and slim sultry fashionistas ramped gorgeously in their posh glossy attires, yet in my amusement, they also knew how to haggle for lower prices at the open-area stalls.
A throng of shoppers made me goofy of buying too many pirated items. The mass wave curled the aisles of the crowded streets while my brothers sought for remembrances and souvenir gifts. Walked here and there. Shortly, my adventurous feet dragged me off in a hoop of shops to search for a laptop, but I ended at an unimpressive restaurant, blowing my hot braised noodles and congee.
The four of us rushed off to the packed Mass Transit Railway, and suddenly, I felt woozy of the mass wave. We emerged from the subway and continued our window-shopping along Nathan Road at the Kowloon side.
Kuya Ian invited us for a drink, so we stopped at Seven Eleven convenient store, where Chinese male chauvinists bought and drank San Miguel beer. As a proud Filipino yuppie, enjoying a vacation in this tiny yet vibrant city, I felt proud for a Pinoy brand going global. I also heard that gorgeous local Hongkong celebrities endorsed this well-loved Filipino beer.
The next day, Filipino families, honeymooners, travelers and groups congregated at the hotel lobby. A petite tour guide head counted, checked the vouchers, explained restrictions and replied at queries on our trip to Guandong.
As I stepped on the shuttle, immediately, I occupied the first row with kuya Ian who sat beside me; behind us were kuya Carlo and Christian who were seated on the second row; and behind them were mom and dad.
“A friendly reminder,” I heard a high-pitched voice said.
“Avoid buying medicines when we arrive in Shenzhen,” uttered the tour guide in her mangled English, “they may be cheap but a lot of complaints have reached out travel agency. Please let this be a secret, though,” she said or otherwise she would be reprimanded from Chinese authorities.
Warning is a precaution!
“But China cures everything,” in dad’s heartbreaking words but we just laughed at him.
Christian had been talkative, while at the same time excited, as some tourists eavesdropped to the tour guide, on our way to the station. After a smooth travel on the Kowloon Canton Railway, we fell in line again when we reached China’s southern gateway. This time around, we were paired by two's. While we stood up and watched Chinese people come and go at the sprawling immigration, unfortunately, a snake-like queue bored our zest at the stiff immigration rules.
Hongkong and Shenzhen denizens have been abiding astringent rules even when Britain turned over the prosperous island to Mainland China since 1997. This was the product of one country, two systems policy imposed by current government of Red China.
In a sudden haste, all of us turned like obedient pupils to our tour guide, in an excursion to Shenzhen. The perception of a Chinese communist, iron-fist discipline, innately prevailed in us as we stepped into the newest megacity of China.
We listened in then chuckled at the intonation of native speakers here as they spoke Cantonese, the lingua franca in Guandong province. After long hours of waiting, another mass wave welcomed us again. However, even with sophistication reflected through massive skyscrapers in this young industrialized southern city, Hongkong remains to be the city of life.
In Shenzhen, men spit around and street children either slept in pavements or under the bridges, which were unseen in Hongkong.
As we toured around, it was recounted to us by the tour guide, that Shenzhen started as a simple and meager fishing village. And now it ascended to become the next mighty city of China; still growing and booming, compared to its giant capitalist neighbor Hongkong.
Subsequently, we smelled the scent of China. The aroma of the favorite lychee was everywhere. Until now, the place is known for this special fruit. As early as June, lychee trees bore this sweet produce. But every July of the year, it is always proclaimed as the Lychee Festival in this fertile region.
Native people are pompous of their delicacy. Even ancient emperors and empresses from Beijing had commanded their men to harvest lychee fruits from this southern province, gifted with fine weather. The richness of soil suitable for the delicate pink fruit to grow here is also the chief ingredient for making lychee teas. For many ages, it was said that this concoction was used as a beauty secret of a beautiful empress, who in her old age, her youthful beauty had encompassed more other concubines. Because of that fantastic story, ladies in the tour, hurriedly bought packs of beauty secret.
Apparently, part of our tour was a free acupressure – purely electric transmission, and not the acupuncture with needle on it. Colossal oriental Chinese herbs and wildlife species, preserved in huge bottles, are used inside the experimental room. And perhaps, aimed at broaching to foreigners, and launching to tourists, the power of ying and yang (the balance of nature).
Dad was ultimately gladdened of what he saw and experienced.
Midday, after a series of trips to the museum, orchards and lychee teas, and laureate lunch from a world-renowned Canton cuisine, we opted to stop in another landmark of the city. Shenzhen’s factories. Shopping never elapsed from the minds of our fellow Filipino visitors. After all, China is the world’s factory, and the adjacent special economic zone, is known as one of its manufacturing bases.
Midnight when we arrived at the immigration. A multitude of visitors to Hongkong awaited their chances to cross the border. All of us felt tired after a hectic day, of touring and watching cultural shows, shopping, and picture taking in mainland China.
Afraid that something might happen to us, in her kind act to accompany us to the other side’s territory, and turn over us safely to her counterpart tour guide in Hongkong, our brisk petite tour guide from Shenzhen, also took her chance to cross the border, yet she was restrained of entry. In the end, she bid farewell to us in her melancholic face, right after, when stern officers barred her. But nothing we could do about, not even enough for the small amount of tip, given by the few of us.
When we reached Hongkong – Asia’s city that never sleeps, as they said, we were worn out but filled with joyful reflections. In a few minutes, the twinkling lights of Asia’s New York kicked our spirits alive again.
II
Three years after my family’s tour in the coastal cities of China, out of the blue, I enrolled for basic Chinese Mandarin at the National Defense College of the Philippines. I told myself that I really needed to study the current number one spoken language and future tongue of the world. I tried my best to learn, grasped new words and sentences, with proper intonation, which I deemed would be useful to me, when I will visit again southern China and other Southeast Asian countries, with assimilated Chinese minorities. As well as, dreaming to wander around in Beijing and Shanghai, sometime.
I thought learning mandarin Chinese was fun!
Actually, it is not difficult learning Chinese. Only the stigma attached with it makes it thorny! As I recalled, this foreign language uses morphemes to represent characters with corresponding meaning. It requires simple logic. Unlike other romance and austronesian languages which are more syllabic. In mandarin Chinese, it needs neither particles nor prefixes. Somehow, this is the reason, why most Tsinoys speaking Tagalog, can utter choppy sentences.
According to my laŏshi or teacher, upon studying mandarin, I also needed to understand their culture. Chinese people are very welcoming to outsiders who eagerly want to learn their language and appreciate acculturation to their customs. Although, I myself had to admit that calligraphy writing and reading characters were the hardest thing to do in any Sinitic language, which I suffered the same fate when I learned Nihonggo. Good thing now in Chinese mandarin, pinyin or the romanized characters of standard mandarin, based on the Beijing dialect, are easy to follow.
It was said to me, that in the realm of communication, an average person in China needs to memorize at least 2,000 characters to be able to read and write efficiently. In the Chinese kinship system, one needs to recognize a relative based on the latter’s seniority and position within a chronological sequence of kinsmen. In other words, Chinese society is very hierarchic. More so, the traditional Chinese numeration system is a base-ten system employing nine numerals and additional symbols for the place-value components of powers of ten.
I deemed that practice is so important for any language proficiency.
Every after classes, I tried to pronounce tonal queries with right intonation to my two-year old son, so he could mimic some Chinese words. I repeatedly ask and say words like - Nĭ haŏ ma? Nĭ hĕn haŏ! Bàba yě hĕn haŏ. Wŏ aì nìmen? Shì, xieixe! Qin wĕn? Nĭ hĕn haŏ kãn! Bàba hàn mamå aì nì (How do you do? You’re fine! Daddy is also fine. Do you love me? Yes, thank you. Can I kiss you then? You look very good. Daddy and mommy love you so much).
In August of 2008, Cathay - Marco Polo’s name to China, shone with the much-celebrated summer Olympics showdown, and blasted with über and mammoth spectacles. Yet, it was dubbed as a belated kick-off party for the Middle Kingdom, as a major power in today’s world affairs.
In my reading, the last time the People’s Republic of China was featured in Newsweek, its editor Fareed Zakaria, bashed Cathay as a fragile superpower, which didn’t know it was already a superpower. China looked like a confused great actor who won a grand prize award on the stage and couldn’t believe that it had achieved an award.
I heard that it took only 10 years for this dragon power to double its economic output, which bested other Atlantic superpowers such as Britain to develop for 58 years, and the United States to progress for 47 years. Faster than a fellow powerful East Asian neighbor Japan, which built-up its economy for 33 years. China defied all the odds and gauged its power as the world’s factory. And more promises and surprises will come its way, reviving its former elegance and wealth, during the peak of the mighty Han, T’ang and Ming dynasties.
My paternal grandparents once said to me when they visited Macau last year, after their long vacation to Las Vegas, the later place is getting bigger and promising. The face-lift of the ex-Portuguese colony is more handsome than the deserted and sinful city of Las Vegas. Surprisingly, my lolo said that Ivy league universities in the States are luring bright and wealthy Chinese students to study in the US. And in many instances, these elite Chinese scholars even tops their chosen fields, mostly, in engineering and hard sciences.
III
It was during the Ming dynasty (1368-1644) when the Philippine-Chinese friendship reached its peak. In one of the accounts of Sino-Sulu relations narrated in the Ming Annals, it was recorded that the Sultan of Sulu, Paduak Patara, visited China in 1417 where he was royally received by the Chinese emperor. But the sultan was stricken ill and died in the city of Dezhou at Shandong province. The benevolent emperor honored the Muslim king with the title of Kong Ting (brother) and ordered the construction of a handsome mausoleum to mark the tomb of a Filipino monarch.
Based on scholastic readings, the above story has often been cited, as the origin of our country’s diplomatic relations with the Middle Kingdom. However, everytime I enter the halls of the National Defense College of the Philippines, I always sight a massive mural, depicting the roles of Chinese soldiers who rebelled against the oppressive colonial rule during the Spanish occupation.
Filipino historians would later refer to the series of revolts as the Chinese Uprising.
In 1953, Chinese rebels led by P’an Ho Wu killed Governor Luis Perez Dasmariñas. The illustrado or bourgeois class, which led the Reform Movement, and the Philippine Revolution, contra the Spaniards and Americans, was basically of Chinese-Filipino mestizo class. Worth mentioning was Jose Ignacio Paua, the full-blooded Chinese general in the revolutionary army. He was in charge for building a munitions factory in Imus, Cavite. Later, he was chosen as the revolutionary army’s main fundraiser who led many battles against the Spaniards.
In the war of resistance opposing the Japanese, the local Chinese organized eight guerilla groups to fight side by side with the Filipino guerillas. Most notable was the Philippine-Chinese Anti-Japanese Guerilla Force, popularly known by its Chinese name as Wha Chi or Squadron 48. The group, composed mainly of Chinese blue-collar workers, was linked-up with the Hukbalahap.
Even in modern times, I thought some Filipinos with well-known Chinese lineages, who are strongly integrated to the mainstream Pinoy culture, have triumphantly succeeded in leading the different sectors of Philippine society. Some even believe though, that Tsinoys in the Philippines, are always partners of Filipino people in the fight for freedom.
IV
Three years ago, I had seen China grow so fast-paced during my last visit to the newest economic superpower in the world. Many more spectators are now convinced that the dragon is truly awake, stretching its muscles, flapping its wings, and soaring high, but perhaps would soon puff potent fires, when intimidated. After all, the Chinese were the first makers of important inventions, the world had ever treasured, such as the paper, compass, gunpowder, block printing, silk and the government service.
I deem that for our archipelagic country to maintain good relations and to maximize its diplomatic skills with the emerging power of China; it must learn how to strategically bandwagon with the Middle Kingdom, but at the same time, to smoothly engage with the United States, which stands still, as the Philippine’s longest ally in modern times.
China’s challenge now is how to effectively convince the Philippines and our neighbors in its intention to stay as a benign power. Although, it has presently adopted the principle of a “peaceful rise”, however, there were still doubts if it would continually rise peacefully in the future.
In my view, uncertainties associated with ‘misunderstood’ China, might still trigger regional or maybe global apprehensions. But now, as a major Asian power, and eventually as a potential rival of the lone superpower in the world, which is the United States, in the near future, some countries would want China to behave well and exercise its power responsibly.
Slowly, China is learning from its past lesson as a claustrophobic, sleeping giant country, and now assimilating itself in the world, to foster its economic and trade, security and culture, around Asia and the deterritorialized globe of the 21st century, in attaining a similar path of prosperity and order.
When it rains it really pours for China.
Did you remember shui?
More glories to Zhongguo!
Rainy June when we visited Hongkong for a five-day vacation, but as fate would have it, when we arrived to this affluent erstwhile British colony, my dad got sick. Mom and dad quickly quarantined themselves in their hotel room for a day but with an instant medication from my physician brother. After a quick recuperation from mild fatigue, he later enjoyed the remaining trips.
That week the weather turned gloomy in the city. Thick gray clouds roofed the islands, while showers of rain dripped over the windowpane of the classic yet modern elevating tram, when we reached this breathtaking famed zenith. The tram was designed elegantly to transport tourists atop Victoria Peak – acropolises of the rich and famous denizens in Hongkong.
The islands of Hongkong and Kowloon, 693 miles away from topsy-turvy Metro Manila, sparkled beautifully. It magically coated the sky with rainbow colors that surely awed us. From Victoria Peak, overlooking handsome skyscrapers and green mountains, flanked by panoramic harbor and opulent condominiums, the view transformed into a postcard shimmering in our weary minds.
It eased my childlike admiration of a megacity and virtually massaged dad’s body aches; becoming therapeutic for a weakening soul. From blue to orange painted sky, it magnified the glaze of sunset.
At dusk, steel and glass edifices and numerous ultramodern architectural wonders, reverberated with glowing bright colors. Atop was windy yet full of merry sightseers while looking at the towering skyline. Then, we chatted with friendly people and heard fine testimonials from fellow tourists. We laughed and shared inspiring tales at the center of this global city. And for me, that moment was a perfect setting for us as family.
There was magic at the harbor.
Light rain sprinkled but raindrops soaked us.
Nevertheless, the harbor’s natural beauty, entwined by eastern and western cultures, incessantly gleamed. This reflected China’s gem as one of the continent’s truly dynamic and uniquely Asian tiger. Dancing lights glistened and wavered the way a dragon play with firing balls when excited. Neon lights extendedly surprised almost all travelers. It was only then when I knew the essence of HK’s slogan as the City of Life!
Buildings here are designed and constructed following the primordial influence of feng (wind) and shui (water) to cast away bad spirits and welcome luck. This is a belief of putting things into equilibrium, or in perfect harmony, making Chinese people generally superstitious. They love every single drop of rain. Having been appropriated this blessing with prosperity and money. Remember shui?
The next day’s tour was in Ocean Park and Hongkong’s Disney Land. But the couple had been arguing, especially for dad who wanted to buy Chinese herbs to increase his sex hormones. For an old man seduced at enhancing his ego in bed.
“Stop mimicking me when I say these words to all of you…China cures everything!” dad admonished us, “then you start laughing at me! Why? It is true when I say that medicines in China are miraculous!” dad’s words to mom.
“I thought you had already taken your viagra,” mom would instead tease him.
At night, my three brothers and me would go out for a stroll and shopping spree in Mongkok. A known flea market where a plethora of bogus branded goods is for sale. There we shopped until midnight and practiced briefly how to haggle and bargain - the Hongkong style. Although, buying stuffs here were differently done in Manila, silently, we refused to entertain noisy and aggressive vendors.
Some would mouth us over if we refused to buy their goods. Unfortunately, I even experienced to be embarrassed and shouted at by an angry old woman when I tried to wear a fake Rolex watch from her store, and helplessly, had done nothing to refute myself. In my astonishment, I just kept quiet. Not even appeased by my rough kuya Carlo, who remained urbane, to the rude and aged female Chinese hawker!
Again, glowing and brightly colored billboards, emblazoned with Chinese characters, were massively hanged all over the merchandises. Young and slim sultry fashionistas ramped gorgeously in their posh glossy attires, yet in my amusement, they also knew how to haggle for lower prices at the open-area stalls.
A throng of shoppers made me goofy of buying too many pirated items. The mass wave curled the aisles of the crowded streets while my brothers sought for remembrances and souvenir gifts. Walked here and there. Shortly, my adventurous feet dragged me off in a hoop of shops to search for a laptop, but I ended at an unimpressive restaurant, blowing my hot braised noodles and congee.
The four of us rushed off to the packed Mass Transit Railway, and suddenly, I felt woozy of the mass wave. We emerged from the subway and continued our window-shopping along Nathan Road at the Kowloon side.
Kuya Ian invited us for a drink, so we stopped at Seven Eleven convenient store, where Chinese male chauvinists bought and drank San Miguel beer. As a proud Filipino yuppie, enjoying a vacation in this tiny yet vibrant city, I felt proud for a Pinoy brand going global. I also heard that gorgeous local Hongkong celebrities endorsed this well-loved Filipino beer.
The next day, Filipino families, honeymooners, travelers and groups congregated at the hotel lobby. A petite tour guide head counted, checked the vouchers, explained restrictions and replied at queries on our trip to Guandong.
As I stepped on the shuttle, immediately, I occupied the first row with kuya Ian who sat beside me; behind us were kuya Carlo and Christian who were seated on the second row; and behind them were mom and dad.
“A friendly reminder,” I heard a high-pitched voice said.
“Avoid buying medicines when we arrive in Shenzhen,” uttered the tour guide in her mangled English, “they may be cheap but a lot of complaints have reached out travel agency. Please let this be a secret, though,” she said or otherwise she would be reprimanded from Chinese authorities.
Warning is a precaution!
“But China cures everything,” in dad’s heartbreaking words but we just laughed at him.
Christian had been talkative, while at the same time excited, as some tourists eavesdropped to the tour guide, on our way to the station. After a smooth travel on the Kowloon Canton Railway, we fell in line again when we reached China’s southern gateway. This time around, we were paired by two's. While we stood up and watched Chinese people come and go at the sprawling immigration, unfortunately, a snake-like queue bored our zest at the stiff immigration rules.
Hongkong and Shenzhen denizens have been abiding astringent rules even when Britain turned over the prosperous island to Mainland China since 1997. This was the product of one country, two systems policy imposed by current government of Red China.
In a sudden haste, all of us turned like obedient pupils to our tour guide, in an excursion to Shenzhen. The perception of a Chinese communist, iron-fist discipline, innately prevailed in us as we stepped into the newest megacity of China.
We listened in then chuckled at the intonation of native speakers here as they spoke Cantonese, the lingua franca in Guandong province. After long hours of waiting, another mass wave welcomed us again. However, even with sophistication reflected through massive skyscrapers in this young industrialized southern city, Hongkong remains to be the city of life.
In Shenzhen, men spit around and street children either slept in pavements or under the bridges, which were unseen in Hongkong.
As we toured around, it was recounted to us by the tour guide, that Shenzhen started as a simple and meager fishing village. And now it ascended to become the next mighty city of China; still growing and booming, compared to its giant capitalist neighbor Hongkong.
Subsequently, we smelled the scent of China. The aroma of the favorite lychee was everywhere. Until now, the place is known for this special fruit. As early as June, lychee trees bore this sweet produce. But every July of the year, it is always proclaimed as the Lychee Festival in this fertile region.
Native people are pompous of their delicacy. Even ancient emperors and empresses from Beijing had commanded their men to harvest lychee fruits from this southern province, gifted with fine weather. The richness of soil suitable for the delicate pink fruit to grow here is also the chief ingredient for making lychee teas. For many ages, it was said that this concoction was used as a beauty secret of a beautiful empress, who in her old age, her youthful beauty had encompassed more other concubines. Because of that fantastic story, ladies in the tour, hurriedly bought packs of beauty secret.
Apparently, part of our tour was a free acupressure – purely electric transmission, and not the acupuncture with needle on it. Colossal oriental Chinese herbs and wildlife species, preserved in huge bottles, are used inside the experimental room. And perhaps, aimed at broaching to foreigners, and launching to tourists, the power of ying and yang (the balance of nature).
Dad was ultimately gladdened of what he saw and experienced.
Midday, after a series of trips to the museum, orchards and lychee teas, and laureate lunch from a world-renowned Canton cuisine, we opted to stop in another landmark of the city. Shenzhen’s factories. Shopping never elapsed from the minds of our fellow Filipino visitors. After all, China is the world’s factory, and the adjacent special economic zone, is known as one of its manufacturing bases.
Midnight when we arrived at the immigration. A multitude of visitors to Hongkong awaited their chances to cross the border. All of us felt tired after a hectic day, of touring and watching cultural shows, shopping, and picture taking in mainland China.
Afraid that something might happen to us, in her kind act to accompany us to the other side’s territory, and turn over us safely to her counterpart tour guide in Hongkong, our brisk petite tour guide from Shenzhen, also took her chance to cross the border, yet she was restrained of entry. In the end, she bid farewell to us in her melancholic face, right after, when stern officers barred her. But nothing we could do about, not even enough for the small amount of tip, given by the few of us.
When we reached Hongkong – Asia’s city that never sleeps, as they said, we were worn out but filled with joyful reflections. In a few minutes, the twinkling lights of Asia’s New York kicked our spirits alive again.
II
Three years after my family’s tour in the coastal cities of China, out of the blue, I enrolled for basic Chinese Mandarin at the National Defense College of the Philippines. I told myself that I really needed to study the current number one spoken language and future tongue of the world. I tried my best to learn, grasped new words and sentences, with proper intonation, which I deemed would be useful to me, when I will visit again southern China and other Southeast Asian countries, with assimilated Chinese minorities. As well as, dreaming to wander around in Beijing and Shanghai, sometime.
I thought learning mandarin Chinese was fun!
Actually, it is not difficult learning Chinese. Only the stigma attached with it makes it thorny! As I recalled, this foreign language uses morphemes to represent characters with corresponding meaning. It requires simple logic. Unlike other romance and austronesian languages which are more syllabic. In mandarin Chinese, it needs neither particles nor prefixes. Somehow, this is the reason, why most Tsinoys speaking Tagalog, can utter choppy sentences.
According to my laŏshi or teacher, upon studying mandarin, I also needed to understand their culture. Chinese people are very welcoming to outsiders who eagerly want to learn their language and appreciate acculturation to their customs. Although, I myself had to admit that calligraphy writing and reading characters were the hardest thing to do in any Sinitic language, which I suffered the same fate when I learned Nihonggo. Good thing now in Chinese mandarin, pinyin or the romanized characters of standard mandarin, based on the Beijing dialect, are easy to follow.
It was said to me, that in the realm of communication, an average person in China needs to memorize at least 2,000 characters to be able to read and write efficiently. In the Chinese kinship system, one needs to recognize a relative based on the latter’s seniority and position within a chronological sequence of kinsmen. In other words, Chinese society is very hierarchic. More so, the traditional Chinese numeration system is a base-ten system employing nine numerals and additional symbols for the place-value components of powers of ten.
I deemed that practice is so important for any language proficiency.
Every after classes, I tried to pronounce tonal queries with right intonation to my two-year old son, so he could mimic some Chinese words. I repeatedly ask and say words like - Nĭ haŏ ma? Nĭ hĕn haŏ! Bàba yě hĕn haŏ. Wŏ aì nìmen? Shì, xieixe! Qin wĕn? Nĭ hĕn haŏ kãn! Bàba hàn mamå aì nì (How do you do? You’re fine! Daddy is also fine. Do you love me? Yes, thank you. Can I kiss you then? You look very good. Daddy and mommy love you so much).
In August of 2008, Cathay - Marco Polo’s name to China, shone with the much-celebrated summer Olympics showdown, and blasted with über and mammoth spectacles. Yet, it was dubbed as a belated kick-off party for the Middle Kingdom, as a major power in today’s world affairs.
In my reading, the last time the People’s Republic of China was featured in Newsweek, its editor Fareed Zakaria, bashed Cathay as a fragile superpower, which didn’t know it was already a superpower. China looked like a confused great actor who won a grand prize award on the stage and couldn’t believe that it had achieved an award.
I heard that it took only 10 years for this dragon power to double its economic output, which bested other Atlantic superpowers such as Britain to develop for 58 years, and the United States to progress for 47 years. Faster than a fellow powerful East Asian neighbor Japan, which built-up its economy for 33 years. China defied all the odds and gauged its power as the world’s factory. And more promises and surprises will come its way, reviving its former elegance and wealth, during the peak of the mighty Han, T’ang and Ming dynasties.
My paternal grandparents once said to me when they visited Macau last year, after their long vacation to Las Vegas, the later place is getting bigger and promising. The face-lift of the ex-Portuguese colony is more handsome than the deserted and sinful city of Las Vegas. Surprisingly, my lolo said that Ivy league universities in the States are luring bright and wealthy Chinese students to study in the US. And in many instances, these elite Chinese scholars even tops their chosen fields, mostly, in engineering and hard sciences.
III
It was during the Ming dynasty (1368-1644) when the Philippine-Chinese friendship reached its peak. In one of the accounts of Sino-Sulu relations narrated in the Ming Annals, it was recorded that the Sultan of Sulu, Paduak Patara, visited China in 1417 where he was royally received by the Chinese emperor. But the sultan was stricken ill and died in the city of Dezhou at Shandong province. The benevolent emperor honored the Muslim king with the title of Kong Ting (brother) and ordered the construction of a handsome mausoleum to mark the tomb of a Filipino monarch.
Based on scholastic readings, the above story has often been cited, as the origin of our country’s diplomatic relations with the Middle Kingdom. However, everytime I enter the halls of the National Defense College of the Philippines, I always sight a massive mural, depicting the roles of Chinese soldiers who rebelled against the oppressive colonial rule during the Spanish occupation.
Filipino historians would later refer to the series of revolts as the Chinese Uprising.
In 1953, Chinese rebels led by P’an Ho Wu killed Governor Luis Perez Dasmariñas. The illustrado or bourgeois class, which led the Reform Movement, and the Philippine Revolution, contra the Spaniards and Americans, was basically of Chinese-Filipino mestizo class. Worth mentioning was Jose Ignacio Paua, the full-blooded Chinese general in the revolutionary army. He was in charge for building a munitions factory in Imus, Cavite. Later, he was chosen as the revolutionary army’s main fundraiser who led many battles against the Spaniards.
In the war of resistance opposing the Japanese, the local Chinese organized eight guerilla groups to fight side by side with the Filipino guerillas. Most notable was the Philippine-Chinese Anti-Japanese Guerilla Force, popularly known by its Chinese name as Wha Chi or Squadron 48. The group, composed mainly of Chinese blue-collar workers, was linked-up with the Hukbalahap.
Even in modern times, I thought some Filipinos with well-known Chinese lineages, who are strongly integrated to the mainstream Pinoy culture, have triumphantly succeeded in leading the different sectors of Philippine society. Some even believe though, that Tsinoys in the Philippines, are always partners of Filipino people in the fight for freedom.
IV
Three years ago, I had seen China grow so fast-paced during my last visit to the newest economic superpower in the world. Many more spectators are now convinced that the dragon is truly awake, stretching its muscles, flapping its wings, and soaring high, but perhaps would soon puff potent fires, when intimidated. After all, the Chinese were the first makers of important inventions, the world had ever treasured, such as the paper, compass, gunpowder, block printing, silk and the government service.
I deem that for our archipelagic country to maintain good relations and to maximize its diplomatic skills with the emerging power of China; it must learn how to strategically bandwagon with the Middle Kingdom, but at the same time, to smoothly engage with the United States, which stands still, as the Philippine’s longest ally in modern times.
China’s challenge now is how to effectively convince the Philippines and our neighbors in its intention to stay as a benign power. Although, it has presently adopted the principle of a “peaceful rise”, however, there were still doubts if it would continually rise peacefully in the future.
In my view, uncertainties associated with ‘misunderstood’ China, might still trigger regional or maybe global apprehensions. But now, as a major Asian power, and eventually as a potential rival of the lone superpower in the world, which is the United States, in the near future, some countries would want China to behave well and exercise its power responsibly.
Slowly, China is learning from its past lesson as a claustrophobic, sleeping giant country, and now assimilating itself in the world, to foster its economic and trade, security and culture, around Asia and the deterritorialized globe of the 21st century, in attaining a similar path of prosperity and order.
When it rains it really pours for China.
Did you remember shui?
More glories to Zhongguo!
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