Punzi's Corner Blog

SUSCIPE, Domine, universam meam libertatem. Accipe memoriam, intellectum, atque voluntatem omnem. Quidquid habeo vel possideo mihi largitus es; id tibi totum restituo, ac tuae prorsus voluntati trado gubernandum. Amorem tui solum cum gratia tua mihi dones, et dives sum satis, hec aliud quidquam ultra posco. Amen.

The term "best" logically points to only one.

But why do we have a lot of "best friends?" That thought had just ocurred to me when a "best friend" just called me a few days ago to tell me that he just got out of the seminary (no, he just took his vows) after two years of being cloistered and now, he'll be staying in a place where I can readily "access" him again...

It get's better. He's now a Jesuit Brother and I've seen him deliver a "sharing" in a noon mass last Tuesday. My, how he has become "better."

During the two years that he was "in," he was not aware of what I've been through until a few months back. Hence, he was not around when I needed him the most...

For that, I had my other "best friend" who ironically migrated to Davao a few months back.

With this, I'm just thinking. What a wonderful God we have! He has NEVER let me (or us) down. When I lost my "best friend" to Davao, He gave me back my other "best friend." And I think, He NEVER WILL.

And with this, I now realize that there can never be one "best friend."

Oxymoronic. Illogical. But I'll take it.

Thanks.

For once I want to blog about something less than serious. For a change, let's not talk about what is happening in this country, in my professional life (though, I must say, I'm handling one of the biggest cases of my life right now...but more about that some other time...) or about my personal life. Well, at least for this entry...

So let's break the apparent seriousness of this blog with, of all things, a lawyer joke.

Once, there was this lawyer who won his first big case and hence, his first big payoff. So he bought the things that he could not afford to buy then.

Finally, he bought the car of his dreams, a BMW Z4.

As he was taking the car out for a spin, his inexperience in these cars must have caught up with him so he slammed that magnificent vehicle into the wall. Miraculously, he survived, but his wrist was severely severed and his car was totalled.

As he got out he fell to his knees shouting, "My car! My beautiful car..."

"Hey Mister!" the paramedic shouted. "How can you worry about your car when your hand was almost severed from your arm?"

"Oh no!" the lawyer screamed. "My ROLEX!"

So here's the way our President would do it, at the rate she's going and all for her political survival:

1. For EDSA I: Allow FM to be buried in the Libingan ng mga Bayani (Cemetery of Heroes) in Fort Bonifacio.

2. For EDSA II & III: Grant amnesty/pardon to JEE on the principle of in pari delicto.

If I follow this logic to absurdity, might as well free all the criminals and grant a general amnesty to all those with pending cases in court, just to "clean the slate" so to speak.

Even us lawyers still have principles. To me, healing the wounds does not mean selling out these principles just for political expediency or survival.

And that's the basic problem in Philippine society today. The Philippines has become a culture of compromise, of "I scratch your back, you scratch mine." Be it in court (where we encourage settlement because of our "creeping" justice system), in politics (I'll give you this committee in exchange for two minor committees...) and in life in general (I'm sorry to have run over someone's child. Is there any way we can just "settle" this?), we have wallowed in this culture of smooth interpersonal relationships, of pakikisama.

I say let's bring back principles into our culture. Sure, it's not bad to compromise or settle, but only to a certain extent. There should still be a set of "non-negotiables."

Where do we start? What are these non-negotiables?

Try "right" and "wrong" for starters.

The President is presently giving a press conference today. I think she's filling in the gaps of her State of the Nation Address, filling in the details of her "Phase 2" and somehow downplaying "Phase 3"

Seems that she's heeding our calls. Now she's not playing to the gallery (ala "Braveheart"...) but to those outside...

Of course, she gives the first question to NBN's Rocky Ignacio. She states she's not a "dramatic president" but a "hardworking" one. And now she's saying she'll not be a "hands-on" President anymore but instead concentrate on working for a change in political system.

She has asked her executive "consultative constitutional commission" to propose changes to the constitution, and names one member already, Professor Abueva.

She then takes questions from, you guessed it, the government radio station reporter, asking about her relationship with Cory Aquino and Fidel Ramos. A non-responsive answer...

Then on to Paolo Romero of the Philippine Star, stating she was merely stating an opinion that the Constitution has to be changed, but still leaves the details thereon to the correct body to tackle it.

Next, Milky Rigonan of DZRH, asking about the Cabinet 10. Now she states that crisis will still continue until the political system has been changed, and has kind words for her daughter, Luli, but neither confirms nor denies formally meeting former First Lady Imelda Marcos, but admits "bumping into her."

Sorry, a client called, I didn't catch the rest...

"Not because I'm worthy but because God is good..."

Now she's talking about federalism and charter change, saying that it has always been part of her agenda. And has vowed not to answer any more allegations from the opposition.

Next, Lilia Tolentino of Pilipino Star. Now she says she will submit the 2006 Budget proposal next month, of about P1 trillion. But she's not afraid that it would not pass on time because of the re-enactment provision in the Constitution.

Finally, Fel Maragay of Manila Standard Today(?). She's peculiarly speaking of a "body" that will amend Constitution, not "Assembly" or "Convention." Is she back-tracking from her "con-ass" opinion?

So, how am I as a play-by-play reporter?

One of the things the gallery should clap about during the President's State of the Nation Address is the passage of Executive Order No. 358

It reads:

I am a Filipino Citizen and a taxpayer.

Please initiate an inquiry on the travel expenses of all the local executives present at yesterday's State of the Nation Address. I would like to know if my hard-earned tax money was spent for their travel, board and lodging and even their pocket money just so that the President would have a "lusty" reception, as the Unlawyer says, for her State of the Nation Address yesterday.

In my small knowledge of government spending procedures, these local government officials have to be on "official business" so that they can travel to Manila. I am not sure whether going to the SONA constitutes "official business" since they can all watch it in their respective jurisdictions on all major cable and free television channels. Also, there is a lot of paperwork (travel authorities, itineraries, etc.) to be filled-up before such official travel took place. Finally, their travel authorities had to be authorized by someone. Please investigate who made such authorization and have him/her held accountable for it.

The Filipino people are relying on your independence in this investigation. Please publish your independent findings and audit memos to those concerned, should you find irregularities thereon, as soon as possible.

Very truly yours,
Juan Dela Cruz

Jove Francisco stated in his report that she would be giving a SSS speech. Short, simple and straight to the point. (I would like to add "safe.")

Instead of focussing on the President's 2005 State of the Nation Address, let me focus on the crowd.

With the boycott, the President was obviously playing to a friendly crowd. But the crowd was likewise SSS. Stupid, short-sighted and selfish.

Why this characterization?

They did not know when to clap. The howled furiously on the things they wanted to hear, the stuff about charter change, parliamentary form of government and federalism. Someone there even wanted to stand on his desk just to show how pleased hearing charter change... and even his ears was clapping...That's what they wanted to hear because that will allow them to cling into power.

But when it came to the things that needed applause, like education, the pre-need industry and energy, they gave their usual "golf claps." These things did not interest them because they had nothing to gain from them. And if I were the Senate President, I should have clapped on the things that mattered, just to show how stupid the crowd was...

Then, all of a sudden, the chants! So stupid and so childish. The military officers present showed more decorum that they did.

Instead of showing strength, that showed weakness. Instead on unity, this crowd drew the line in front of those outside.

The shape of things to come...

MLQ3 pointed out this news item that a certain Pedro Ferrer filed an answer "ex abudante ad cautelam (with extreme caution, usually an answer filed without prejudice to how the court would treat the complaint, or in this case, whether Congress would shoot down or transmit the impeachment complaint to the Senate)" to the Lozano impeachment complaint, allegedly for an on behalf of the respondent, President Gloria Macapagal Arroyo. With this ploy, some opposition lawmakers threatened to pull out from participating in the impeachment proceedings.

It can be argued that this answer has supposedly "joined the issues" and boxed or cornered the opposition into just making do with the suppossedly weak Lozano complaint instead of the "much improved" amended complaint now being prepared by a battery of lawyers.

There is no provision in the old impeachment rules that provides for an answer. As a matter of fact, even the 1987 Constitution did not provide for such possibility.

Apparently, this ploy relies on two things:

1. The alleged inherent weakness of the Lozano complaint
2. The principle of "joining the issues"

"Joining the issues" occurrs when the allegations in a complaint have been answered. When this happens, a complaint cannot be amended anymore as a matter of right, and only with the court's permission. The Rule 10 of the 1997 Revised Rules of Civil Procedure states:

Sec. 2. Amendments as a matter of right.

A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (l0) days after it is served.

Sec. 3. Amendments by leave of court.

Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.

But will this stop the opposition from amending the impeachment complaint?

In my opinion, it will not because of the following:

1. Since the Lozano complaint has been filed when Congress was not in session, it can be safely pressumed that such has not been formally served upon respondent. Hence, the supposed answer is premature.

2. The current legal framework does not provide for the effect of filing an answer and the above-quoted provisions of the Rules of Court cannot be applied in an impeachment case. Even the Revised Rules of Criminal Procedure on Preliminary Investigation cannot apply.

3. A premature answer, I think, has no effect in both Civil and Criminal proceedings. Moreso in impeachment which is neither civil nor criminal. In impeachment proceedings, there is not even a provision of service to respondent in this stage and the President (respondent) only gets to participate therein once trial by the Senate gets underway.

In any case, however, it will still be Congress that will decide on how to deal with this answer and define its effects on the amended complaint. Let's just see how this monkey wrench will be used by the Administration...

Back to blogging about our leisure time...

As stated yesterday, I devoted this Sunday to my kids. First, I took them grocery shopping. I have to admit I'm still in awe when I see my youngest child's eyes light up exploring unfamiliar territory, albeit just the grocery in the mall. I don't take him out often because he gets car sick easily. But today, there were no problems.

So Bea and I dropped Nico along with the groceries at home so we could watch a movie. Our time together went well. It was a nice family movie. Besides, the original Love Bug and the other Herbie movies were childhood favorites of mine.

Then off to a late lunch. Bea ate as much as I did, which means she ate a lot. Then I bought her a pair of jeans. My, oh my! My little angel is growing so fast and before long she'll be a girl soon... which means I better start planning my "security" measures.... heheheheheheheh!

Again, another good day...

Tomorrow's agenda: Watch Herbie: Fully Loaded with Bea and buy Nico his milk and diapers...and probably attend choir in the afternoon mass...

I'll forego some seriousness this weekend to prepare for the grueling week ahead...

I'll blog further tomorrow. But nothing serious, though...let's reserve that for Monday...

Hello folks! This is probably going to be my shortest blog lecture, because I'm in a hurry...

What is a State of the Nation Address (SONA)?

From the past SONA's this seems to be both the President's report to the nation, much like the Chairman of the Board's report to the stockholders of a corporation. In it, the President reports achievements and gains, as well as (supposedly) what needs to be done, the direction the President wants to take the nation for the next year and possibly, her legislative agenda.

Why is the SONA held during the start of the regular session of Congress?

The simple reason is Section 23, Article VII of the 1987 Constitution that says:

Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.

While there is nothing the above-quoted provision that tells the President the topic he will discuss, the topics I have stated above has been traditionally the ones tackled by the President in such address.

When is the start of the regular session of Congress?

Section 15 of Article VI has the answer:

Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.

The fourth Monday of July this year falls on 25 July 2005.

See how short this is?

Have to admit it was a pretty darn fine good idea (I like the overkill of adjectives...) by Manolo Quezon (Manuel L. Quezon III) to have a chat roundtable discussion among bloggers dubbed as the "Blogs of the Round Table."

I thought the session was from 11:00 p.m. to 1:00 a.m., but it turned out to be 11:00 a.m. to 1:00 p.m. So I was caught using my consultancy office's dial-up (that really really sucked) instead of my soho's fantabulous WiFi DSL connection.

The topic was impeachment, whether it is a political or legal process and what the people would have to watch out for.

Present were, of course, MLQ3 as moderator, and four lawyers, La Vida Lawyer, Edwin Lacierda, Sassy and of course, me and The Ca t.

Apart from technical problems (some of my comments keep on getting lost in cyberspace and my constant disconnections), the discussion went pretty well. There were no grandstanding lawyers getting at each other's throat. Most were in agreement on the issues posited by our moderator. It's a good thing there were none of those "old" lawyers around to disagree for the sake of disagreement. Impeachment is both a legal and political process and people have to watch out for the legal maneuverings that will be employed by both camps. I personally made an undertaking to explain these legalities as the saga unfolds...

We should have more of these and with more participants. Congratulations, Manolo for a brilliant idea. But as La Vida suggests, why don't we try podcasting it?

You can read the transcript here.

Also, I was listening to the radio coming home when lo and behold, a dear and respected teacher of mine, Atty. Avelino Sebastian, Jr. was asked to comment on Congressman Pichay's statement that election fraud is not a ground for impeachment. He confirmed it was true...

"WHAT!?" like a madman I screamed in the car all by myself. The great Atty. Sebastian making an error?

But just as then, he proved to me that he's still the master and I'm just his padawan apprentice. He said election fraud is evidence of either betrayal of public trust. He made the brilliant distinction between the grounds for impeachment and what it can subsume. The grounds for impeachment are those found in the Constitution (treason, bribery, graft and corruption, betrayal of public trust, culpable violation of the Constitution and other high crimes, etc.). The others may be evidence of these grounds but not grounds for impeachment per se (by itself).

Hence, he was still correct. The ground is betrayal of public trust. Electoral fraud is not a ground for impeachment because it is not one of those the Constitution mentions. It may be evidence of the President's betrayal of the public trust, though.

To Atty. Sebastian, you have proven again that I'm not worthy...

I'll just keep on trying...because lawyers will be in the thick of things to come...

Ok class! You may have been enticed by Ally McBeal, The Practice or Philly enough to consider a career in law (in the Philippines, of course).

So do you want to become one of us?

I want to join your club. What the requirements so I can apply?

Every applicant for admission as a member of the bar must be

1. A citizen of the Philippines, at least twenty-one years of age,
2. Of good moral character,
3. Resident of the Philippines;
4. Must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.

What about the law school?

Hmmm. Of course there is pre-law first.

According to Section 6, Rule 138 of the Rules of Court:

Sec. 6. Pre-Law. No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics.

This rule, however, has been relaxed to include any standard four-year course. You actually have to secure a clearance to study law from the Department of Education.

Then, law school (which can be the subject of numerous blogs).

According to Section 5 of the same rules:

All applicants for admission other than those referred to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court.

No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics.

Law proper (be it a Bachelor's Degree in Law [Ll.B.] or a Juris Doctor [J.D.] is another four year course. As long as the school is recognised by the Department of Education and contains the bar exam subjects, as seen in the above quotation.

Now what about... shudder... the bar exams?

First to the bar reviewees, you have a little over a month before that hell-month of September...

According to the rules:

Sec. 9. Examination; subjects. Applicants, not otherwise provided for in sections 3 and 4 of this rule, shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation; Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing).

Sec. 10. Bar examination, by questions and answers, and in writing. Persons taking the examination shall not bring papers, books or notes into the examination rooms. The questions shall be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each examinee. Examinees shall answer the questions personally without help from anyone.
Upon verified application made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court may allow such examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed to be used.

The committee of bar examiners shall take such precautions as are necessary to prevent the substitution of papers or commission of other frauds. Examinees shall not place their names on the examination papers. No oral examination shall be given.

Sec. 11. Annual examination. Examinations for admission to the bar of the Philippines shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners. The subjects shall be distributed as follows: First day: Political and International Law (morning) and Labor and Social Legislation (afternoon); Second day: Civil Law (morning) and Taxation (afternoon); Third day: Mercantile Law (morning) and Criminal Law (afternoon); Fourth day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon).

Sec. 14. Passing average. In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law; 10 per cent; Political and International Law, 15 per cent; Taxation, 10 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent.

Hey, that's too long for me! How about breaking it down?

Sure. But if you can't handle that, can you handle law?

Briefly, the bar exams are held for four Sundays of September. This is the schedule

First Sunday: Political Law (4 hours, a.m.)
Labor Law and Social Legislation (3 hours, p.m.)

Second Sunday: Civil Law (4 hours, a.m.)
Taxation (3 hours, p.m.)

Third Sunday: Mercantile Law (4 hours, a.m.)
Criminal Law (3 hours, p.m.)

Fourth Sunday: Remedial Law (4 hours, a.m.)
Legal Ethics and Practical Exercises (3 hours, p.m.)

The bar exam is always essay type. For those who have bad handwriting (like me), you can petition the Supreme Court to type your answers, but I have not heard of anyone who has tried and actually typed his or her answers.

This is a very grueling exam in all aspects: be it physical, emotional, intellectual and psychological. In law school, final exams are usually one hour long and still very tiring.

Imagine taking two exams for the whole day, four hours in the morning and three hours in the afternoon. Then imagine doing the same thing for four times in September.

To pass the bar, you have to get an weighted average grade of 75 with no exam lower than 50.

So what if I fail the bar exams?

According to the new rules, you can only take the bar exams five times (the new "Five Strikes, you're out" rule). Before, you can take the bar exams as many times as you want provided you follow this rule:

Sec. 16. Failing candidates to take review course. Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school.

The professors of the individual review subjects attended by the candidates under this rule shall certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject.

So now, you still have to go through a review course after failing three times and still be subject to the five strikes rule.

So what if I pass?

Then:

Sec. 17. Admission and oath of successful applicants. An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribe before the Supreme Court the corresponding oath of office.

Oath taking is technically your first appearance as a lawyer. It is is technically a Supreme Court hearing and we actually rent togas (because you appear before the Supreme Court in togas).

Sometimes, I wish we could wear wigs there... but I digress.

Then, you have the right to put "Atty." in front of your name...

There you have it, class! So do you still want to become one of us?

Take a break first before you decide...

Ok class! Let us go to the topic of malversation of public funds and plunder.

Unknown to many, malversation of public funds is actually contained as a chapter in the Revised Penal Code and subsumes more than one crime.

The pertinent provisions read as follows:

Chapter Four
MALVERSATION OF PUBLIC FUNDS
OR PROPERTY

Art. 217. Malversation of public funds or property. — Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. (As amended by RA 1060.)

Art. 218. Failure of accountable officer to render accounts. — Any public officer, whether in the service or separated therefrom by resignation or any other cause, who is required by law or regulation to render account to the Insular Auditor, or to a provincial auditor and who fails to do so for a period of two months after such accounts should be rendered, shall be punished by prision correccional in its minimum period, or by a fine ranging from 200 to 6,000 pesos, or both.

Art. 219. Failure of a responsible public officer to render accounts before leaving the country. — Any public officer who unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Insular Auditor showing that his accounts have been finally settled, shall be punished by arresto mayor, or a fine ranging from 200 to 1,000 pesos or both.

Art. 220. Illegal use of public funds or property. — Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 per cent of the sum misapplied.

Art. 221. Failure to make delivery of public funds or property. — Any public officer under obligation to make payment from Government funds in his possession, who shall fail to make such payment, shall be punished by arresto mayor and a fine from 5 to 25 per cent of the sum which he failed to pay.

This provision shall apply to any public officer who, being ordered by competent authority to deliver any property in his custody or under his administration, shall refuse to make such delivery.

The fine shall be graduated in such case by the value of the thing, provided that it shall not less than 50 pesos.

Art. 222. Officers included in the preceding provisions. — The provisions of this chapter shall apply to private individuals who in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual.

Malversation is a crime committed by an accountable public officer who appropriates/misappropriates such funds under his control/accountability or allow other persons to take such funds or property, by consent, abandonment or negligence.

Can you break that down?

Ok. The requisites are:

1. He must be a public officer.
2. He must be accountable under such office funds or property.
3. He either:
a. Takes the funds/property himself, either totally or partially; or
b. Allows others to take it, by consent, abandonment or negligence.

What are the other crimes under malversation?

They are:

1. Failure to render accounts
2. Failure to render accounts before leaving the country
3. Illegal use of public funds (otherwise known as "technical malversation")
4. Failure to make delivery of public funds.

The first two are easy to grasp. But can you give an example of the last two?

Sure.

1. For example, an officer uses the funds collected from the Road User's Tax (Republic Act No. 8794) for another public use like funding a public campaign...

As a side note, the funds collected from the Road User's Tax shall be deposited in four special accounts, namely, the Special Road Support Fund, the Special Local Road Fund, the Special Road Safety Fund and the Special Vehicle Pollution Control Fund. The use of such funds other than for these shall be considered technical malversation.

Now, if the same public officer uses such funds for personal gain, such as funding his re-election, that's malversation and not technical malversation.

2. A public officer who has in his possession funds to pay a government obligation, such as payment for expropriated land, fails to pay up.

What is plunder?

Section 2 of Republic Act No. 7020, as amended by Republic Act No. 7659, defines plunder as follows:

Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00), shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death with perpetual absolute disqualification from holding any public office.

What is "ill-gotten wealth"?

It means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes :

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

Can you give an example of each of the criminal acts that constitutes plunder?

Ok.

1. See the malversation examples above.

2. As consideration for awarding a government project, a certain contractor gives the "Standard Operating Procedure" pay of 20% of the project amount. If the 20% kickback (or series of kickbacks) amounts to P50 Million or above, that's plunder.

3. A government owned or controlled corporation illegally sells a priceless painting it owns and then the management derives ill-gotten wealth from it.

4. A government official accepting shares of stock, instead of cash for any anomalous transaction.

5. A government official issuing memoranda to ensure a monopoly of anything and then derrives ill-gotten wealth from it.

6. A relative of a high government official exploiting such relationship to get favors or engagements to "fix" problems in government for a price.

Whew! Let's break for recess...

Aren't you forgetting someting?

Oh, yes, thank you. For the crime of malversation, the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.

Hence, once a public officer fails to return the funds or property, there is already a prima facie evidence that he has misappropriated it for his personal use. The burden of proof, therefore, shifts to him to prove that that is not the case upon such failure.

I likewise previously posted on my gadget inventory. Likewise long, indeed.

For this weekend, let me tell you my celphone history. I wanted this to be in pictures and I'm starting with the GSM models at the start of the text messaging craze.

My first GSM phone was an Ericsson GA 628 I(we) purchased in 1997. Do you remember that? It looked like this:


This was a fantastic phone. It was easy to use (then) and it looked good, especially with a slim battery. And very tough.



Then we bought a Motorolla Modulus. Unfortunately, I could not, for the life of me, find a picture of it. This was the closest picture I could find but I know this is not exactly how it looked like:




After that we went to Nokia and never switched since. We started with a 5110:



Then to a 3210 during Christmas of 1999:



Then I bought a 7110:



This was a good phone, if you can take the software and mechanical breakdowns (associated with the sliding mechanism). Expect mechanical breakdowns when your phone has moving parts (duh...)

Then to a 6210 since I liked the huge phone directory and its slim design. But it kept on having software problems, though...



Then on to a 3310 during December 2000 that we had for only two weeks:



That's because we immediately bought a 8210 and we immediately sold the 3310 to my ex-wife's sister.



Then I bought an 8310 for myself. From this time until my Communicator, this was the last phone I bought for myself. All the phones I bought were for my ex-wife, and then I got the phone she handed down.



She wanted an 8850 (because my sister bought one) so I bought one for her...



Then, she wanted a 7650:




She thought it was too big so she then wanted a 7210:



Then I bought her a 6800:



I still use this phone today.

She suddenly wanted an Ericsson T610:


It was soooo hard to use, if you're used to Nokia. I wanted to hurl it out the window the day we bought it. She had no choice but to live with it because it was her decision.

Finally, during October 2002, I was able to buy a 9210i Communicator for myself. This was the phone I had the longest, basically because I ran out of resources to engage in this mindless, expensive habbit. But I love this phone and all its features. I even used this to store some basic laws I need for day-to-day practice. And I still have this phone to this very day.



Then on 23 January 2003, I bought my ex-wife the last phone I will ever buy for her. Mere months after the T610, she wanted a Nokia 6600.



This was the last phone I had my hands on. Since 2003, I would never get my hands on a new phone. First, because, my two current phones (the 9210i and the 6800) were still working well and still suited my purposes. Second, I could not afford it.

Until now...Through some sort of sheer opportunity, I was able to get my hands on my new baby...the Nokia 9500 Communicator:



I'm still discovering its features. But with its WiFi features alone, I believe that this phone was worth the wait. I'm sticking to Nokia. I'm too spoiled with its user-friendliness...

There you have it, folks. My nasty habbit I do hope I could break... I'm gunning for a 6230i next as a second phone...



As for my ex-wife, I don't think she even has the 6600 anymore. She probably sold it already....Buti nga....

Sorry class for not posting earlier. I had some problems I had to take care of that took all night...

Anyway, let's proceed to the lesson for today on obstruction of justice.

There is such an offense and this is covered by Presidential Decree No. 1829.

To start, this crime does not involve preventing Supreme Court, Court of Appeals, Sandiganbayan and other justices from arriving at their respective destinations, as the offense suggests. Section 1 thereof states that a penalty is imposed upon any person who knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or aggreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.

Can you give examples of each?

Sure.

1. Telling a witness that the hearing where he will be called will be held on 17 July 2005. The witness did not know that this falls on a Sunday and that the hearing will actually be held on 18 July 2005.

2. To CSI fans, corrupting or destroying cricial evidence.

3. Hiding or providing a safe house for known fellons.

4. Publicly changing one's name from "Malu Hwang" to "Nalu Hwang" to evade a sentence imposed upon Malu.

5. Using bomb threats to delay proceeding in court, prosecutors and the Office of the Ombudsman.

6. Surreptitiously inserting or substituting original specimens of signatures in any investigation or judicial proceeding so that it would match the signature of an impostor (sounds familiar, Mr. Nipa Hut?)

7. A police office taking a bribe for not appearing as a prosecution witness in a case he handled and brought to court.

8. Making death threats on a person to prevent him from appearing as a witness to a case.

9. An informant misleading investigating police officers by giving false leads or tips.

What if the means used in obstruction of justice likewise constitutes a crime?

Then, according to the same law, the offender shall be punished by the crime with the higher penalty.

By the way, what is the penalty for this?

It is prission correccional in its maximum period (imprisonment from 4 years, 2 months and one day to six years) and/or a fine ranging from P1,000.00 to P6,000.00.

If the offender is a public officer, he shall likewise be perpetully disqualified from further holding any other public office.

Ok class! Let's get into another hot topic.

What is contempt?

Contempt is disrespectful behavior towards a court or a quasi-judicial body (translation: a body that is almost like a court), or disobedience to their orders.

What are the kinds of contempt punishable?

They are:

1. Direct Contempt
2. Indirect Contempt

What is Direct Contempt?

It is misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same.

It includes disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so. (from Section 1, Rule 71 of the 1997 Revised Rules on Civil Procedure)

Can you give an example?

Of course!

Calling the judge (or justice) a friggin' a-hole, improper attire, loud ringtones/message tones during hearing, challenging adverse counsel to a fight in the court's presence, cursing, etc. may be considered direct contempt is done in the presence of or so near the court.

What is Indirect Contempt?

Simply put, the following acts that are not committed in the court's presence and punished only after due process constitute indirect contempt:

(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. (Section 3, Rule 71)

Can you give examples?

Why not?

1. Overly provocative or fighting words used in filed pleadings

2. Refusal to vacate premises despite a valid and final court order to do the same

3. Making bomb threats so that court proceedings do not continue

4. Laying land mines around the courthouse to prevent the judges and their staff from doing their jobs

5. Illegally representing oneself as an attorney in court proceedings

6. Not showing up in court despite a duly served subpoena ad testificandum

7. Illegally taking sequestered property subject of a case and in court custody.

What is the difference between direct and indirect contempt?

Direct Contempt is committed in the court's presence or so near the court while Indirect Contempt is not committed within or near the court's presence. It may be done through pleadings, though.

Direct Contempt is punished summarily. This means a judge (or justice) can immediately cite an offending person in direct contempt and mete out the punishment for it. An offender has to go through due process before being cited for indirect contempt.

Because it is summary, it cannot be appealed, unlike indirect contempt.

What is the penalty for Direct Contempt?

1. If done before a Regional Trial Court, its equivalent or a higher court (Court of Appeals or Supreme Court), a maximum fine of P2,000.00 or a maximum prison term of ten days, or a combination of both fine and imprisonment.

2. If done before courts lower than a Regional Trial Court, a maximum fine of P200.00 or a maximum prison sentence of 1 day, or again, a combination of both fine and imprisonment.

What is the penalty for Indirect Contempt?

1. If done before a Regional Trial Court, its equivalent or a higher court (Court of Appeals or Supreme Court), a maximum fine of P30,000.00 or a maximum prison term of six months, or a combination of both fine and imprisonment.

2. If done before courts lower than a Regional Trial Court, a maximum fine of P5,000.00 or a maximum prison sentence of one month, or again, a combination of both fine and imprisonment.

If there is disobedience to a temporary restraining order or a writ of preliminary injunction, the penalty also includes restitution for the damage caused or done.

How about contempt of Congress? Is there such a thing?

Yes. Article 150 of the Revised Penal Code, a person becomes criminally liable for disobeying, without legal excuse, summons issued by the National Assembly or any of its committees; or refusing, when present (1) to be sworn or placed under affirmation, or (2) to answer any legal inquiry, or (3) to produce any books, papers, documents, or records in his possession when required to do so by said bodies in the exercise of their functions.

Accordingly, any of those acts may also constitute contempt of Congress and could be punished as such independent of criminal prosecution. (taken from this link).

How about other agencies like the SEC?

Yes. But charges of indirect contempt must be filed with the regular courts...

Micketymoc ("Mr. Poop") tagged me for this one...

Movies, huh? Not much interest in them anymore, the ones I watch now are due to the proddings of my daugher, Bea.

But I am competent to answer your questions nonetheless, Mr. Chairman...

Number of Films owned on home video?

My VCDs reached the hundreds, I think. All originals but most of them are with that girl now because she started that sham video store business of hers. When that sham folded, I never saw most of my VCDs again (I was particularly hurt over the loss of my complete Joyce Jimenez collection... sob ...) I only have a few left with me. Of course the adult videos do not count...

But I have kept my DVDs that total around 50+. Again, save for about 3 or so, all originals.

On VHS... what's VHS?

Five films that I watch a lot/mean a lot to me?

1. Phantom of the Opera (watched the DIBIDI, but I will buy the original when it comes out)
2. The Matrix
3. The Matrix Reloaded
4. The Matrix Revolutions
5. Star Trek VI: The Undiscovered Country (my favorite Star Trek Movie...)

Who to tag?

Can't decide...raincheck again?

Sorry class for not lecturing yesterday. I was busy with some things... like earning a living...

Ok class! Since this is the present catchword, let's talk about conspiracies. This topic is very dear to me because this was the question in my midterm exams the spelled the turning point in my law career:

The second paragraph, Article 8 of the Revised Penal Code states:

Conspiracy exists when two or more persons come into an agreement concerning the commission of a felony and decide to commit it.

Is a conspiracy, in itself, punishable?

No. Only in cases where the provides a punishment does a consipiracy per se becomes punishable.

Can you give examples?

Sure. Conspiracy to commit treason under Article 115 of the Revise Penal Code, conspiracy to commit rebellion, coup d'etat and insurrection under Article 136 of the same code, conspiracy to commit sedition under Article 141, conspiracy to commit arson under Section 7 of Presidential Decree 1613.

Conspiracy to resign and make a dramatic media hype about it is not punishable under the law simply because there in no law punishing such an act. It's like the case I heard over the radio the other day where in an extortion attempt, a traffic enforcer charged his motorist/victim with "stepping on the line." That guy must have been an ameteur basketball referee. He deserved to be caught...

Although a good enough dog can turn this into a case of conspiracy to commit sedition... again if the dog is good enough.


But why is conspiracy given such a bad connotation?

Conspiracy in participation of any crime creates co-responsibility. There is a saying that in a conspiracy, "The act of one is the act of all." (People vs. Masangkay, 155 SCRA 113 [1987]). Hence, once conspiracy in the commission of a crime is proven, all those in it are considered principals by direct participation, regardless of whether their actual participation is merely that of an accomplice or a accessory. See my related blog-lecture on this here.

But how do you prove conspiracy?

You have to prove that a conspirator performed an overt act in furtherance of the conspiracy. It is not enough the you prove that the conspiracy exists.

Can you give an example of this?

Of course. Prove that there is a conspiracy first and then one of them lends his car or merely present at the scene of crime while it was being committed may be enough to impute liability on this conspirator... (People vs. Cortez, 57 SCRA 308, 316 [1974], cited in Criminal Law, by Kapunan (+) and Faylona, 1990 Edition)

Being present when the crime is being committed or lending one's car to facilitate the commission of the crime, coupled with proof of existence of such conspiracy is enough to implicate everyone as co-principals by direct participation in any crime.