Reasons Why the SC acquitted Webb, et. al in the Vizconde Massacre Case

In Lejano vs. People of the Philippines (G.R. No. 176389, December 14, 2010), the Honorable Supreme Court acquitted accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt.

According to the SC, the controlling issues in the Vizconde Massacre case are the following:

1.Whether or not Alfaro’s testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief;

2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaro’s testimony that he led the others in committing the crime.

TESTIMONY OF NBI STAR WITNESS

IS NOT ENTITLED TO BELIEF

On the quality of the star witness

“Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an “asset,” a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices.

“According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an “asset.” She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaro’s tip led to the arrest of the leader of the “Martilyo gang” that killed a police officer. Because of her talent, the task force gave her “very special treatment” and she became its “darling,” allowed the privilege of spending nights in one of the rooms at the NBI offices.

“When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. fellester.blogspot.com Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant.” xxx

Please read full text of the Vizconde Massacre SC Decision

On the suspicious details of Alfaros’s story

“Was it possible for Jessica Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes.

Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them.

Secondly, the police had arrested some “akyat-bahay” group in Parañaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaro’s NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents.

Not surprisingly, the confessions of some members of the Barroso “akyat bahay” gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. xxx Please read full text of the Vizconde Massacre SC Decision

ACCUSED WEBB PRESENTED SUFFICIENT EVIDENCE

TO PROVE HIS ALIBI AND REFUT ALFARO’S STORY

a. The travel preparations

“Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money. Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets.”

“Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave. On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.”

b. The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808. Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webb’s visa, stamped, and initialed his passport, and let him pass through. He was listed on the United Airlines Flight’s Passenger Manifest.

On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service, the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991, and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.

c. Details of U.S. sojourn

“In San Francisco, Webb and his aunt Gloria were met by the latter’s daughter, Maria Teresa Keame, who brought them to Gloria’s house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Gloria’s grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco. In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs’ hospitality when she was in the Philippines.

In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California. During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keelerand working at his cousin-in-law’s pest control company. Webb presented the company’s logbook showing the tasks he performed, his paycheck, his ID, and other employment papers. On June 14, 1991 he applied for a driver's license and wrote three letters to his friend Jennifer Cabrera.

“On June 28, 1991, Webb’s parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit. On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car. Later that day, a visitor at the Brottman’s, Louis Whittacker, saw Webb looking at the plates of his new car. To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle and a car plate “LEW WEBB.” In using the car in the U.S., Webb even received traffic citations.

On June 30, 1991 Webb, again accompanied by his father and Aragon, bought a bicycle at Orange Cycle Center. The Center issued Webb a receipt dated June 30, 1991. On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.

“Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez. There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards. In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguez’s house. He left the Rodriguez’s home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.

d. The second immigration checks

“As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry. Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103, certified by Agnes Tabuena confirmed his return trip.

When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webb’s reentry. Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court.

e. Alibi versus positive identification

“The trial court and the Court of Appeals are one in rejecting as weak Webb’s alibi. Their reason is uniform: Webb’s alibi cannot stand against Alfaro’s positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webb’s denial and alibi were fabricated.

“But not all denials and alibis should fellester.blogspot.com be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangman’s noose in the face of a witness positively swearing, “I saw him do it.”? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet?

“There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, “He did it!” without blinking an eye.

Rather, to be acceptable, the positive identification must meet at least two criteria:

First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold.

And second, the witness’ story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims.

Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.

“She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecution’s worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI.

“And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly—just so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that fellester.blogspot.com nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the car’s hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front door—just so to explain the darkened light and foot prints on the car hood.

“Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaro’s story that she agreed to serve as Webb’s messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity.

“To provide basis for Webb’s outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable.

“Ultimately, Alfaro’s quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi.

f. A documented alibi

“To establish alibi, the accused must prove by positive, clear, and satisfactory evidence that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.

“The courts below held that, despite his evidence, Webb was actually in Parañaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm.

If one is cynical about the Philippine system, he could probably claim that Webb, with his father’s connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines’ passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigration’s record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions.

“The Court of Appeals rejected the evidence of Webb’s passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent, the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court.

The U.S. Immigration certification and the computer print-out of Webb’s arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that fellester.blogspot.com Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webb’s passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.

The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webb’s passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.xxx Please read full text of the Vizconde Massacre SC Decision

“The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.

If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webb’s passport and the certifications of the Philippine and U.S.’ immigration services regarding his travel to the U.S. and back. The prosecution’s rebuttal evidence is the fear of the unknown that it planted in the lower court’s minds.” xxx (Lejano vs. People of the Philippines G.R. No. 176389, December 14, 2010)

SC: Philippine Truth Commission of 2010 Void

At the dawn of his administration, President Noynoy signed Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission). The Philippine Truth Commission (PTC) is created to investigate reports of graft and corruption committed by third-level public officers and employees, their co-principals, accomplices and accessories during the administration of Gloria Macapagal Arroyo, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman. Barely a month after the issuance of EO No. 1, two cases were filed before the SC assailing the validity and constitutionality of the said EO.

The first case is a special civil action for prohibition instituted by petitioner Louis Biraogo in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the Constitution as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor. Biraogo argues that EO No. 1 is unconstitutional because there is no provision in the Constitution or any specific law that authorizes the President to create a truth commission.

The second case is a special civil action for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives. Petitioners-Legislators argue that the said Order is unconstitutional because the creation of a public office lies within the province of Congress and not with the executive branch of government.

The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that the authority of the President to create public offices within the Office of the President Proper has long been recognized. According to the OSG, the Executive, just like the other two branches of government, possesses the inherent authority to create fact-finding committees to assist it in the performance of its constitutionally mandated functions and in the exercise of its administrative functions.

The OSG also cites the recent case of Banda v. Ermita, where it was held that the President has the power to reorganize the offices and agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing statutes. The OSG concludes that the power of control necessarily includes the power to create offices.

1. Does the creation of the PTC fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code?

SUGGESTED ANSWER:

No. The power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates “reorganization” as limited by the following functional and structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or an office is already existent but a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in the negative.

2. May the President legally create the Philippine Truth Commission (PTC)? Is there a valid delegation of power from Congress empowering the President to create a public office?


Yes.The creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads:

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

“Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.”

“On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. fellester.blogspot.com Further, there is no need to specify the amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, “whatever funds the Congress has provided for the Office of the President will be the very source of the funds for the commission. Moreover, since the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.”

3. According to petitioners, E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the “Truth Commission” with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution and the Department of Justice created under the Administrative Code of 1987. Is this correct?

No. Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or office. “Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the overall task of the commission to conduct a fact-finding investigation.”

The actual prosecution of suspected offenders, much less adjudication on the merits of the charges against them, is certainly not a function given to the commission. The phrase, “when in the course of its investigation,” under Section 2(g), highlights this fact and gives credence to a contrary interpretation from that of the petitioners. The function of determining probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman.

4. Petitioners argue that E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and personnel of the previous administration as if corruption is their peculiar species even as it excludes those of the other administrations, past and present, who may be indictable. Are the petitioners correct?

Yes! “Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution.”

“Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class. “Superficial differences do not make for a valid classification.”

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth “concerning the reported cases of graft and corruption during the previous administration” only. The intent to single out the previous administration is plain, patent and manifest.

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. fellester.blogspot.com It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo administration and other past administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the “previous administration” only. (Biraogo vs. The Philippine Truth Commission of 2010 G.R. No. 192935 & G.R. No. 19303, December 7, 2010)

Void Citihood Laws

In GR No. 178056, League of Cities of the Philippines v. Comelec, August 24, 2010, the Supreme Court granted the motions for reconsideration of the League of Cities of the Philippines (LCP) and reinstated its November 18, 2008 decision declaring unconstitutional the Cityhood Laws or Republic Acts (RAs) converting 16 municipalities into cities.

Declared as unconstitutional were R.A. Nos.:

1. 9389 (Baybay City in Leyte)
2. 9390 (Bogo City in Cebu)
3. 9391 (Catbalogan City in Samar)
4. 9392 (Tandag City in Surigao del Sur)
5. 9393 (Lamitan City in Basilan)
6. 9394 (Borongan City in Samar)
7. 9398 (Tayabas City in Quezon)
8. 9404 (Tabuk City in Kalinga)
9. 9405 (Bayugan City in Agusan del Sur)
10.9407 (Batac City in Ilocos Norte)
11.9408 (Mati City in Davao Oriental)
12.9409 (Guihulngan City in Negros Oriental)
13.9434 (Cabadbaran City in Agusan del Norte)
14.9435 (El Salvador City in Misamis Oriental)
15.9436 (Carcar City in Cebu)
16.9491 (Naga City in Cebu)

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Law Creating Dinagat Province Valid? (2011 update)

The National Statistics Office certified that Dinagat Islands’ population is 120,813. Its land area is 802.12 square kilometers and its average annual income is P82,696,433.23, as certified by the Bureau of Local Government Finance. On October 2, 2006, the President approved into law R.A. 9355 creating the Province of Dinagat Islands. On December 3, 2006, the COMELEC conducted the mandatory plebiscite for the ratification of the creation of the province under the LGC which yielded 69,943 affirmative votes and 63,502 negative votes. With the approval of the people from both the mother province of Surigao del Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of provincial officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007.

Meanwhile, on November 10, 2006, petitioners Rodolfo G. Navarro and other former political leaders of Surigao del Norte, filed before the SC a petition for certiorari and prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No. 9355 alleging that that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the provincial territory, Internal Revenue Allocation (IRA), and rich resources from the area. Is R.A. No. 9355 constitutional?

Suggested Answer:

February 10, 2010 Ruling

No. The SC ruled that the population of 120,813 is below the Local Government Code (LGC) minimum population requirement of 250,000 inhabitants. Neither did Dinagat Islands, with an approximate land area of 802.12 square kilometers meet the LGC minimum land area requirement of 2,000 square kilometers. The Court reiterated its ruling that paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code, which exempts proposed provinces composed of one or more islands from the land area requirement, was null and void as the said exemption is not found in Sec. 461 of the LGC. “There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law,” held the Court. (GR No. 180050, Navarro v. Ermita, May 12, 2010)

The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for reconsideration of the Decision. In its Resolution dated May 12, 2010, the Supreme Court denied the said motions.

April 12, 2011 Ruling

Yes. In Navarro vs. Executive Secretary (G.R. no. 180050, April 12, 2011), the Honorable Supreme Court ruled that Republic Act No. 9355 is as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared VALID.

The SC also ruled that the provision in Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, “The land area requirement shall not apply where the proposed province is composed of one (1) or more islands,” is declared VALID.

According to the SC, “with respect to the creation of barangays, land area is not a requisite indicator of viability. However, with respect to the creation of municipalities, component cities, and provinces, the three (3) indicators of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for.”

“But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.”

xxx “There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but fellester.blogspot.com was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of the LGC – and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.”

xxx“Consistent with the declared policy to provide local government units genuine and meaningful local autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally construed in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010 Decision could prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that consists of several municipalities and component cities which, in themselves, also consist of islands. The component cities and municipalities which consist of islands are exempt from the minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several islands. fellester.blogspot.com This would mean that Congress has opted to assign a distinctive preference to create a province with contiguous land area over one composed of islands — and negate the greater imperative of development of self-reliant communities, rural progress, and the delivery of basic services to the constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-kilometer territory of a province is scattered because the islands are separated by bodies of water, as compared to one with a contiguous land mass.”

xxx “What is more, the land area, while considered as an indicator of viability of a local government unit, is not conclusive in showing that Dinagat cannot become a province, taking into account its average annual income of P82,696,433.23 at the time fellester.blogspot.com of its creation, as certified by the Bureau of Local Government Finance, which is four times more than the minimum requirement of P20,000,000.00 for the creation of a province. The delivery of basic services to its constituents has been proven possible and sustainable. Rather than looking at the results of the plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot operate in favor of Dinagat’s existence as a province, they must be seen from the perspective that Dinagat is ready and capable of becoming a province.” (Navarro vs. Executive Secretary (G.R. no. 180050, April 12, 2011)

Mikey Arroyo as Tricycle Drivers' Rep

Sometime in 2010, the Comelec voted 4-2-1 to allow Juan Miguel “Mikey” Arroyo to represent the party-list group Ang Galing Pinoy. Mikey was allowed to represent the marginalized security guards and tricycle drivers in the House of Representatives. The Comelec explained that the nominee himself need not be marginalized so long as he is a bona fide member of the party organization whose members are marginalized and underrepresented. Is the Comelec correct?

SUGGESTED ANSWER:

No. When Congress finally enumerated the qualifications of a party-list representative it said in Section 9 of RA 7941: “No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.”

xxx But what does being a bona fide member of a party-list organization mean? The meaning cannot be a departure from the constitutional provision which says that he must be elected “from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” Or, as the Supreme Court said in 2001, he must be chosen from among those “1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but 3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”

xxx The Supreme Court reiterated this in Banat v. Comelec when it said that “it is not necessary that the party-list organization’s nominee ‘wallow in poverty, destitution and infirmity’ as there is no financial status required in the law. It is enough that the nominee fellester.blogspot.com of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.” (Mikey as party-list rep? By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer, 07/26/2010)

Change of Last Name in Passports

Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring on 27 October 2000. Petitioner being married to Francisco R. Rallonza, the following entries appear in her passport: “Rallonza” as her surname, “Maria Virginia” as her given name, and “Remo” as her middle name. Prior to the expiry of the validity of her passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with the DFA office in Chicago, Illinois, U.S.A., with a request to revert to her maiden name and surname in the replacement passport. The DFA denied her request ruling that Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 “offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport purposes.” Is the DFA correct?

SUGGESTED ANSWER:

Yes. The SC ruled that for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will.

Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil Code provides:

ART. 370. A married woman may use:

(1)HER MAIDEN FIRST NAME AND SURNAME AND ADD HER HUSBAND’S SURNAME, OR

(2)HER MAIDEN FIRST NAME AND HER HUSBAND'S SURNAME, OR

(3)HER HUSBAND’S FULL NAME, BUT PREFIXING A WORD INDICATING THAT SHE IS HIS WIFE, SUCH AS “MRS.”


Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent.

In the present case, petitioner, whose marriage is still subsisting and who opted to use her husband’s surname in her old passport, requested to resume her maiden name in the replacement passport arguing that no law prohibits her from using her maiden name. Petitioner cites Yasin v. Honorable Judge Shari’a District Court as the applicable precedent.

However, Yasin is not squarely in point with this case. Unlike in Yasin, which involved a Muslim divorcee whose former husband is already married to another woman, petitioner’s marriage remains subsisting. Another point, Yasin did not involve a request to resume one’s maiden name in a replacement passport, fellester.blogspot.com but a petition to resume one’s maiden name in view of the dissolution of one’s marriage.


The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d).


The Court notes that petitioner would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. However, petitioner consciously chose to use her husband’s surname before, in her previous passport application, and now desires to resume her maiden name. If we allow petitioner’s present request, definitely nothing prevents her in the future from requesting to revert to the use of her husband’s surname. Such unjustified changes in one's name and identity in a passport, which is considered superior to all other official documents, cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. Thus, for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will. (Remo vs. DFA, G.R. No. 169202, March 5, 2010)

Implied Warranties Prescriptive Period

On November 27, 1997, petitioner purchased from respondent a brand new white Toyota Hi-Lux. The vehicle was delivered to petitioner two days later. On October 18, 1998, petitioner demanded the replacement of the engine of the vehicle because it developed a crack after traversing Marcos Highway during a heavy rain. Petitioner asserted that respondent should replace the engine with a new one based on an implied warranty.

On the other hand, respondent maintains that petitioner’s cause of action was already barred by the statute of limitations under Article 1571 of the Civil Code for having been filed more than six months from the time the vehicle was purchased and/or delivered. Respondent reiterates that Article 169 of Republic Act No. 7394 does not apply.

SUPREME COURT:

Under Article 1599 of the Civil Code, once an express warranty is breached, the buyer can accept or keep the goods and maintain an action against the seller for damages. In the absence of an existing express warranty on the part of the respondent, as in this case, the allegations in petitioner’s complaint for damages were clearly anchored on the enforcement of an implied warranty against hidden defects, i.e., that the engine of the vehicle which respondent had sold to him was not defective.

By filing this case, petitioner wants to hold respondent responsible for breach of implied warranty for having sold a vehicle with defective engine. Such being the case, petitioner should have exercised this right within six months from the delivery of the thing sold. Since petitioner filed the complaint on April 20, 1999, or more than nineteen months counted from November 29, 1997 (the date of the delivery of the motor vehicle), his cause of action had become time-barred.

Petitioner contends that the subject motor vehicle comes within the context of Republic Act No. 7394. Thus, petitioner relies on Article 68 (f) (2) in relation to Article 169 of Republic Act No. 7394. Article 4 (q) of the said law fellester.blogspot.com defines “consumer products and services” as goods, services and credits, debts or obligations which are primarily for personal, family, household or agricultural purposes, which shall include, but not limited to, food, drugs, cosmetics, and devices. The following provisions of Republic Act No. 7394 state:

Art. 67. Applicable Law on Warranties. — The provisions of the Civil Code on conditions and warranties shall govern all contracts of sale with conditions and warranties.

Art. 68. Additional Provisions on Warranties. — In addition to the Civil Code provisions on sale with warranties, the following provisions shall govern the sale of consumer products with warranty:

e) Duration of warranty. The seller and the consumer may stipulate the period within which the express warranty shall be enforceable. If the implied warranty on merchantability accompanies an express warranty, both will be of equal duration.

Any other implied warranty shall endure not less than sixty (60) days nor more than one (1) year following the sale of new consumer products.

Consequently, even if the complaint is made to fall under the Republic Act No. 7394, the same should still be dismissed since the prescriptive period for implied warranty thereunder, which is one year, had likewise lapsed.(De Guzman vs. Toyota, G.R. No. 141480, November 29, 2006)

Please read full text of the SC Decision. Click here.

COMMENTS TO SC RULING

The conclusion of the Supreme Court in the above-mentioned Decision stresses that the warranty provisions in Article 68 is not merely a duration of warranties but also to be interpreted as a period within which a buyer must file an action arising from warranty against hidden defects.

This also leads one to ask: what types of action then should accrue within two (2) years as contemplated by the phrase “in case of hidden defects, from discovery thereof” in Article 169 of RA No. 7394?

SC on Controversial CJ Midnight Appointment

SC Chief Justice Reynato Puno’s compulsory retirement will be on May 17, 2010 or seven (7) days after the coming presidential elections on May 10, 2010.

Legal dilemmas:

1. May President GMA appoint CJ Puno’s successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term (MIDNIGHT APPOINTMENTS), except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety?

2. What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the SC shall be filled within 90 days from the occurrence thereof, from a list of at least three nominees prepared by the JBC for every vacancy, to the matter of the appointment of his successor?


SUGGESTED ANSWER:


Yes. The SC ruled that the President may appoint CJ Puno’s successor because “Article VII of the Constitution does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary. “Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so.” Thus, the SC resolves to reverse its ruling in Valenzuela (298 SCRA 408).

The Court said that “Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.

The SC also ruled that Section 15, Article VII does not apply as well to all other appointments in the Judiciary. “Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department.”

“The lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, fellester.blogspot.com the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President,” the Court ruled. (De Castro vs. JBC, G. R. No. 191002, March 17, 2010)



May the President appoint the next Chief Justice from among the sitting justices of the Court even without a JBC list?


SUPREME COURT:

“As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President – any President – to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.
xxx


The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile’s statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list.(De Castro vs. JBC, G. R. No. 191002, March 17, 2010)