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Seamen; claim for permanent total disability benefits.

January 20, 2014, 11:30 pm
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“The State of Permanent Total Disability

Based on the foregoing, both parties failed to discharge their respective burdens to prove the non-work-relatedness of the disease for the petitioners (theory of work-relation) and the substantiation of claims for respondent (theory of work-aggravation). With this, the Court is confronted with the question as to whom it should rule in favor then.

In ECC v. Sanico, 36 GSIS v. CA. 37 and Bejerano v. ECC,38 the Court held that disability should be understood not more on its medical significance, but on the loss of earning capacity. Permanent total disability means disablement of an employee to earn wages in the same kind of work or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do. It does not mean absolute helplessness. Evidence of this condition can be found in a certification of fitness/unfitness to work issued by the company-designated physician.

In this case, records reveal that the medical report issued by the company-designated oncologist was bereft of any certification that respondent remained fit to work as a seafarer despite his cancer. This is important since the certification is the document that contains the assessment of his disability which can be questioned in case of disagreement as provided for under Section 20 (B) (3).of the POEA-SEC.39

In the absence of any certification, the law presumes that the employee remains in a state of temporary disability. Should no certification be issued within the 240 day maximum period,40 as in this case, the pertinent disability becomes permanent in nature.

Considering that respondent has suffered for more than the maximum period of 240 days in light of the uncompleted process of evaluation, and the fact that he has never been certified to work again or otherwise, the Court affirms his entitlement to the permanent total disability benefits awarded him by the CA, the NLRC and the LA.

In the same way that the seafarer has the duty to faithfully comply with and observe the terms and conditions of the PO EA-SEC, including the provisions governing the procedure for claiming disability benefit,41 the employer also has the duty to provide proof that the procedures were also complied with, including the issuance of the fit/unfit to work vertification.

Failure to do so will necessarily cast doubt on the true nature of the seafarer's condition.

When such doubts exist, the scales of justice must tilt in his favor.”


See –


JEBSENS MARITIME, INC.,  ESTANISLAO SANTIAGO, and/or HAP AG-LLOYD AKTIENGESELL SCHAFT vs. ELENO A. BABOL, G.R. No. 204076,  Dec. 4, 2013.
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Disability benefits; Principle of Work-Aggravation.

January 20, 2014, 11:40 pm
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“The Principle of Work-Aggravation

Assuming for the sake of argument that the presumption of work-relation was refuted by petitioners, compensability may still be  established on the basis of the theory of work aggravation if by substantial evidence,21 it can be demonstrated that the working conditions aggravated or at least contributed in the advancement of respondent's cancer. 22 As held in Rosario v. Denklav Marine,23 "the burden is on the beneficiaries to show a reasonable employment disability" connection between the causative circumstances of the deceased employee and his death or permanent total disability.

To determine if indeed respondent sufficiently established the link between his cancer and the working conditions on board MY Glasgow Express, understanding the disease is of utmost importance.

Respondent's cancer is by far, the most common malignant tumor of the nasopharynx.24 Risk factors for this cancer, as derived from the position paper filed by the petitioners and consistent with many medical literatures25 on the matter, include (I) salt-cured foods; (2) preserved meats, (3) Epstein Barr virus, and ( 4) family history. 26 In every detail, it is clear that the dietary factor plays a vital role in increasing the risk of acquiring the disease. For medical purposes, salt-cured fish and preserved meat can, thus, be considered as high risk food that can contribute in the growth of this type of cancer.

Respondent is of the theory that such high risk dietary factor persisted on board the vessel, thus, increasing the probability that the disease was aggravated by his working conditions:

... On the food he took while on board, Complainant is exposed to the risk of contracting his illness. The Supreme Court has taken judicial notice of the fact that seamen are required to stay on board their vessel by the very nature of their duties. It is also of common knowledge that while on board, seamen have no choice but to eat the food prepared by the kitchen staff of the vessel. They are also not at liberty to prepare/cook their own food to suit their health needs.

Their day-to-day "diet" therefore depends on the kind of food served on the vessel for the consumption of the entire crew. Thus, the long voyage on the high seas, the vessel's menu is limited to salt- cured foods (such as salted fish, dried fish, anchovies, dried meat, salted eggs, etc.), frozen meat, processed meat, canned goods, and other preserved foods, thus the diet is mostly salt-cured foods, hence, the increased risk of contracting nasopharyngeal cancer.

Complainant had no other alternative or option but to eat whatever is served at the mess hall, and considering further that his "diet" or sustenance while on board the vessel had presumably contributed to, if not caused by, his present health condition, there is good reason to conclude that his ailment or affliction is work related or, otherwise stated, reasonably connected/aggravated by his work. 27

The above assertions of respondent do not constitute as substantial evidence that a reasonable mind might accept as adequate to support the conclusion that there is a causal relationship between his illness and the working conditions on board the petitioners' vessel. Although the Court has recognized as sufficient that work conditions are proven to have contributed even to a small degree,28 such must, however, be reasonable, and anchored on credible information. 29 The claimant must, therefore, prove a convincing proposition other than by his mere allegations. 30 This he failed to do.

The Court refuses to take judicial notice of said assertions on the basis of an allegation of mere common knowledge. This is in light of the changing global landscape affecting international maritime labor practices. The Court notes the acceptance, albeit steadily, of the minimum standards governing food and catering on board ocean-going vessels as provided in the 2006 Maritime Labor Convention of which the Philippines31 and MY Glasgow's flag country Germany32 have signed, to wit:

(a) food and drinking water supplies, having regard to the number of seafarers on board, their religious requirements and cultural practices as they pertain to food, and the duration and nature of the voyage, shall be suitable in respect of quantity, nutritional value, quality and variety;
(b) the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions; and
(c) catering staff shall be properly trained or instructed for their positions.33


Although not yet fully implemented, this International Labor Organization (!LO) Convention merely underscores that food on board an ocean-going vessel may not necessarily be limited as alleged by respondent.

In this respect, the petitioners submitted documents34 showing that  fresh and varied provisions were provided on board. Respondent, on the other hand, countered that even if there were such provisions, salt-cured fish and diet such as bagoong dilis, bagoong alamang, anchovies, etc.35 were still included as victuals. The Court treats both submissions as equal in their respects and, thus, cannot be the sole determinant of whether respondent is entitled to his claims.”

See –

JEBSENS MARITIME, INC.,  ESTANISLAO SANTIAGO, and/or HAP AG-LLOYD AKTIENGESELL SCHAFT vs. ELENO A. BABOL, G.R. No. 204076,  Dec. 4, 2013.


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Disability benefits of seamen; unless contrary evidence is presented by the employers, the "work-relatedness of the disease" must be sustained (disputable presumption).

January 20, 2014, 11:45 pm
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“The Principle of Work-relation

The 2000 POEA-SEC contract governs the claims for disability benefits by respondent as he was employed by the petitioners in September of 2006.

Pursuant to the said contract, the injury or illness must be workrelated and must have existed during the term of the seafarer's employment in order for compensability to arise. 14 Work-relation must, therefore, be established.

As a general rule, the principle of work-relation requires that the disease in question must be one of those listed as an occupational disease under Sec. 32-A of the PO EA-SEC. Nevertheless, should it be not classified as occupational in nature, Section 20 (B) paragraph 4 of the POEA-SEC15 provides that such diseases are disputably presumed as work-related.

In this case, it is undisputed that NPC afflicted respondent while on board the petitioners' vessel. As a non-occupational disease, it has the disputable presumption of being work-related. This presumption obviously works in the seafarer's favor. 16 Hence, unless contrary evidence is presented by the employers, the work-relatedness of the disease must be sustained. 17

In this wise, the petitioners, as employers, failed to disprove the presumption of NPC's work-relatedness. They primarily relied on the medical report issued by Dr. Co Pefia. The report, however, failed to make a categorical statement confirming the total absence of work relation. Thus:

Dear Dr. Lim,

This is with regards [sic] to Mr. Elena Babol, 45 y/o male, diagnosed case of Nasopharyngeal Carcinoma; S/P Incisional Biopsy of Left Neck Mass on April 2, 2007. Risk factors include:

Diet - salt cured fish
Viral agents - Epstein Barr Virus (EBV)
Genetic Susceptibility - H2 locus antigens, Singapore
Antigen BW46 and B17 Antigen
His condition is likely not work-related.
(Underscoring supplied)

Black's Law Dictionary defines likely as "probable"18 and likelihood as "probability." 19 The use of the word likely indicates a hesitant and an uncertain tone in the stated medical opinion and does not foreclose the possibility that respondent's NPC could be work-related. In other words, as the doctor opined only a probability, there was no certainty that his condition was not work related.

There being no certainty, the Court will lean in favor of the seafarer consistent with the mandate of POEA-SEC to secure the best terms and conditions of employment for Filipino workers. 20 Hence, the presumption of NPC's work-relatedness stays.”

See –

JEBSENS MARITIME, INC.,  ESTANISLAO SANTIAGO, and/or HAP AG-LLOYD AKTIENGESELL SCHAFT vs. ELENO A. BABOL, G.R. No. 204076,  Dec. 4, 2013.


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Probate of wills executed by foreigners abroad. allowed the Rules of Court

January 24, 2014, 8:22 am
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"Our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countries of their execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his country.

In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate may take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that the executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

Our rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) the probable value and character of the property of the estate; (d) the name of the person for whom letters are prayed, and (e) if the will has not been delivered to the court, the name of the person having custody of it. Jurisdictional facts refer to the fact of death of the decedent, his residence at the  time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province. The rules do not require proof that the foreign will has already been allowed and probated in the country of its execution.

In insisting that Ruperta’s will should have been first probated and allowed by the court of California, petitioners Manuel and Benjamin obviously have in mind the procedure for the reprobate of will before
admitting it here. But, reprobate or re-authentication of a will already probated and allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court.

Reprobate is specifically governed by Rule 77 of the Rules of Court. Contrary to petitioners’ stance, since this latter rule applies only to reprobate of a will, it cannot be made to apply to the present case. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established.

Besides, petitioners’ stand is fraught with impracticality. If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance, since our law requires that no will shall pass either real or personal property unless the will has been proved and allowed by the proper court.

Notably, the assailed RTC order of June 17, 2004, is nothing more than an initial ruling that the court can take cognizance of the petition for probate of Ruperta’s will and that, in the meantime, it was designating Ernesto as special administrator of the estate. The parties have yet to present evidence of the due execution of the will, i.e., the testator’s state of mind at the time of the execution and compliance with the formalities required of wills by the laws of California. This explains the trial court’s directive for Ernesto to submit the duly authenticated copy of Ruperta’s will and the certified copies of the Laws of Succession and Probate of Will of California."


(Abad, J., In Re: In the Matter of the Petition to Approve the Willof Ruperta Palaganas with Prayer for the Appointment of Special Administrator, Manuel Miguel Palaganas and Benjamin Gregorio Palaganas v. Ernesto Palaganas, G.R. No. 169144, January 26, 2011.)
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Executive judges - oca.judiciary.gov.ph/issuances/admin/AM-03-8-02-SC.pdf

January 24, 2014, 9:22 am
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Status quo ante - Fil Metals Corp vs Sec of DTI : 157498 : July 15, 2005 : J. Quisumbing : First Division : Decision

February 10, 2014, 12:06 pm
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See - Fil Metals Corp vs Sec of DTI : 157498 : July 15, 2005 : J. Quisumbing : First Division : Decision





"x x x.



After a careful consideration of the submission by the parties, we are convinced that petitioners herein have established a strong case for the unconstitutionality of Rep. Act No. 8800 sufficient for the grant of a preliminary injunction. Note, however, that a writ of preliminary injunction is issued merely to preserve the status quo ante.[16] Its sole objective is to preserve the status quo until the merits of the case can be heard fully.   It is generally availed of to prevent actual or threatened acts, until the merits of the case can be disposed of.[17]
Respondents tenaciously argue that Rep. Act No. 8800 enjoys the presumption of validity and constitutionality until proven otherwise. True, but for the purpose of issuing a provisional remedy, strictly speaking, this contention lacks relevance. Obviously, a law need not be declared unconstitutional first before a preliminary injunction against its enforcement may be granted.[18]Needless to stress, the moment a law is nullified for being unconstitutional, it ceases to exist. Thus, a writ of injunction would then become superfluous.
Only two requisites are necessary for a preliminary injunction to issue: (1) the existence of a right to be protected and (2) the facts, against which the injunction is to be directed violate said right.[19] While a clear showing of the right is necessary, its existence need not be conclusively established. In fact, the evidence required to justify the issuance of a writ of preliminary injunction need not be conclusive or complete.  The evidence need only give the court an idea of the justification for the preliminary injunction, pending the decision of the case on the merits. Thus, to be entitled to the writ, petitioners are only required to show that they have an ostensible right to the final relief prayed for in their complaint.[20]
In this case, petitioners have demonstrated a clear right threatened by the questioned safeguard measures. Being in a business heavily dependent on importation of steel, they would be severely damaged once safeguard measures are applied against steel imports. Petitioners have shown, to the satisfaction of the trial court and this Court that any increase in tariffs or quantitative restriction on imports will force them to close down their respective businesses and lay off their employees.
This, to us, is sufficient to entitle petitioners to a preliminary injunction. We thus hold that the Court of Appeals erred in reversing the trial court order granting the writ of preliminary injunction.
x x x."
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PDIC power to investigate and examine banks - G.R. No. 176438

February 10, 2014, 12:16 pm
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See - G.R. No. 176438





"x x x.



After an evaluation of the respective positions of the parties, the Court is of the view that the Monetary Board approval is not required for PDIC to conduct an investigation on the Banks.

          The disagreement stems from the interpretation of these two key provisions of the PDIC Charter.  The confusion can be attributed to the fact that although “investigation” and “examination” are two separate and 
distinct procedures under the charter of the PDIC and the BSP, the words seem to be used loosely and interchangeably.

          It does not help that indeed these terms are very closely related in a generic sense.  However, while “examination” connotes a mere generic perusal or inspection, “investigation” refers to a more intensive scrutiny for a more specific fact-finding purpose.  The latter term is also usually associated with proceedings conducted prior to criminal prosecution.

          The PDIC was created by R.A. No. 3591 on June 22, 1963 as an insurer of deposits in all banks entitled to the benefits of insurance under the PDIC Charter to promote and safeguard the interests of the depositing public by way of providing permanent and continuing insurance coverage of all insured deposits.  It is a government instrumentality that operates under the Department of Finance.  Its primary purpose is to act as deposit insurer, as a co-regulator of banks, and as receiver and liquidator of closed banks.[71]

          Section 1 of the PDIC Charter states:

          SECTION 1.    There is hereby created a Philippine Deposit Insurance Corporation hereinafter referred to as the “Corporation” which shall insure, as herein provided, the deposits of all banks which are entitled to the benefits of insurance under this Act, and which shall have the powers hereinafter granted.

            The Corporation shall, as a basic policy, promote and safeguard the interests of the depositing public by way of providing permanent and continuing insurance coverage on all insured deposits.

          Section 1 of R.A. No. 9576 further provides:  An Act Increasing the Maximum Deposit Insurance Coverage, and in connection therewith, to Strengthen the Regulatory and Administrative Authority, and Financial  Capability of the Philippine Deposit Insurance Corporation (PDIC), amending for this purpose R.A. No. 3591, as Amended, otherwise known as the PDIC Charter.

            SECTION 1.  Statement of State Policy and Objectives. -  It is hereby declared to be the policy of the State to strengthen the mandatory deposit insurance coverage system to generate,  preserve, maintain faith and confidence in the country’s banking system, and protect it from illegal schemes and machinations.

            Towards this end, the government must extend all means and mechanisms necessary for the Philippine Deposit Insurance Corporation to effectively fulfill its vital task of promoting and safeguarding the interests of the depositing public by way of providing permanent and continuing insurance coverage on all insured deposits, and in helping develop a sound and stable banking system at all times.

Under its charter, the PDIC is empowered to conduct examination of banks with prior approval of the Monetary Board:

            Eighth – To conduct examination of banks with prior approval of the Monetary Board:  Provided, That no examination can be conducted within twelve (12) months from the last examination date:  Provided, however, That the Corporation may, in coordination with the Bangko Sentral, conduct a special examination as the Board of Directors, by an affirmative vote of a majority of all its members, if there is a threatened or impending closure of a bank; Provided, further, That, notwithstanding the provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the Corporation and/or the Bangko Sentral, may inquire into or examine deposit accounts and all information related thereto          in case there is a finding of unsafe or unsound banking practice; Provided, That to avoid overlapping of efforts, the examination shall maximize the efficient use of the relevant reports,   information, and findings of the Bangko Sentral, which it shall make available to the Corporation; (As amended by R.A. 9302, 12 August 2004, R.A. 9576, 1 June 2009)

            xxx.  [Underlining supplied]





Section 9(b-1) of the PDIC Charter further provides that the PDIC Board shall have the power to:

POWERS AND RESPONSIBILITIES AND PROHIBITIONS

            SECTION 9. xxx

            (b) The Board of Directors shall appoint examiners who shall have power, on behalf of the Corporation to examine any insured bank.  Each such examiner shall have the power to make a thorough examination of all the affairs of the bank and in doing so, he shall have the power to administer oaths, to examine and take and preserve the testimony of any of the officers and agents thereof,  and, to compel the presentation of books, documents, papers, or records necessary in his judgment to ascertain the facts relative to the condition of the bank; and shall make a full and detailed report of the condition of the bank to the Corporation. The Board of Directors in like manner shall appoint claim agents who shall have the power to investigate and examine all claims for insured  deposits and transferred deposits.  Each claim agent shall have the power to administer oaths and to examine under oath and take and preserve testimony of any person relating to such claim.  (As amended by E.O. 890, 08 April 1983; R.A. 7400, 13 April 1992)

            (b-1)  The investigators appointed by the Board of Directors shall have the power on behalf of the Corporation to conduct investigations on frauds, irregularities and anomalies committed in banks, based on reports of examination conducted by the Corporation andBangko Sentral ng Pilipinas or complaints from depositors or from other government agency. Each such investigator shall have the power to administer oaths, and to examine and take and preserve the testimony of any person  relating to the subject of investigation.(As added by R.A. 9302, 12 August 2004)

xxx.  [Underscoring supplied]

As stated above, the charter empowers the PDIC to conduct an investigation of a bank and to appoint examiners who shall have the power to examine any insured bank.  Such investigators are authorized to conduct investigations on frauds, irregularities and anomalies committed in banks, based on an examination conducted by the PDIC and the BSP or on complaints from depositors or from other government agencies.

The distinction between the power to investigate and the power to examine is emphasized by the existence of two separate sets of rules governing the procedure in the conduct of investigation and examination.  Regulatory Issuance (RI) No. 2005-02 or the PDIC Rules on Fact-Finding Investigation of Fraud, Irregularities and Anomalies Committed in Banks covers the procedural requirements of the exercise of the PDIC’s power of investigation.  On the other hand, RI No. 2009-05 sets forth the guidelines for the conduct of the power of examination.

The definitions provided under the two aforementioned regulatory issuances elucidate on the distinction between the power of examination and the power of investigation.

Section 2 of RI No. 2005-02 states that its coverage shall be applicable to “all fact-findinginvestigations on fraud, irregularities and/or anomalies committed in banks that are conducted by PDIC based on: [a] complaints from depositors or other government agencies; and/or [b] final reports of examinations of banks conducted by the Bangko Sentral ng Pilipinas and/or PDIC.”

The same issuance states that the Final Report of Examination[72] is one of the three pre-requisites to the conduct of an investigation, in addition to the authorization of the PDIC Board[73]and a complaint.[74]  Juxtaposing this provision with Section 9(b-1) of the PDIC Charter, since an examination is explicitly made the basis of a fact-finding examination, then clearly examination and investigation are two different proceedings.  It would obviously defy logic to make the result of an “investigation” the basis of the same proceeding.  Thus, RI No. 2005-02 defines an “investigation” as a “fact-finding examination, study or inquiry for determining whether the allegations in a complaint or findings in a final report of examination may properly be the subject of an administrative, criminal or civil action.”[75]

The Banks cite the dictionary definitions of “examination” and “investigation” to justify their conclusion that these terms refer to one and the same proceeding.  It is tempting to use these two terms interchangeably, which practice may be perfectly justified in a purely literary sense.  Indeed, a reading of the PDIC Charter shows that the two terms have been used interchangeably at some point. However, based on the provisions aforecited, the intention of the laws is clearly to differentiate between the process of investigation and that of examination.

In 2009, to clarify procedural matters, PDIC released RI No. 2009-05 or the Rules and Regulations on Examination of Banks.  Section 2 thereof differentiated between the two types of examination as follows:

Section 2.  Types of Examination

            a. Regular Examination -  An examination conducted independently or jointly with the BSP.  It requires the prior approval of the PDIC Board of Directors and the Monetary Board (MB).  It may be conducted only after an interval of at least twelve (12) months from the closing date of the last Regular Examination.

            b.  Special Examination – An examination conducted at any time in coordination with the BSP, by an affirmative vote of a majority of all the members of the PDIC Board of Directors,  without need of prior MB approval, if there is a threatened or impending bank closure as determined by the PDIC Board of Directors. [Underscoring supplied]


Section 3 of RI No. 2009-05 provides for the general scope of the PDIC examination:

Section 3.  Scope of Examination

            The examination shall include, but need not be limited to, the following:

            a. Determination of the bank’s solvency and liquidity position;

            b. Evaluation of asset quality as well as determination of sufficiency of valuation reserves on loans and other risk assets;

c.       Review of all aspects of bank operations;


d. Assessment of risk management system, including the evaluation of the effectiveness of the bank management’s oversight functions, policies, procedures, internal control and audit;

e.  Appraisal of overall management of the bank;

f. Review of compliance with applicable banking laws, and rules and regulations, including PDIC issuances;

g. Follow-through of specific exceptions/ violations noted during a previous examination; and

h.     Any other activity relevant to the above.


Rule 2, Section 1 of PDIC RI No. 2005-02 or the PDIC Rules on Fact-Finding Investigation of Fraud, Irregularities and Anomalies Committed in Banks provides for the scope of fact-finding investigations as follows:

SECTION 1.  Scope of the Investigation.

Fact-finding Investigations shall be limited to the particular acts or omissions subject of a complaint or a Final Report of Examination.


From the above-cited provisions, it is clear that the process of examination covers a wider scope than that of investigation.

Examination involves an evaluation of the current status of a bank and determines its compliance with the set standards regarding solvency, liquidity, asset valuation, operations, systems, management, and compliance with banking laws, rules and regulations.




Investigation, on the other hand, is conducted based on specific findings of certain acts or omissions which are subject of a complaint or a Final Report of Examination.

Clearly, investigation does not involve a general evaluation of the status of a bank.  An investigation zeroes in on specific acts and omissions uncovered via an examination, or which are cited in a complaint.

An examination entails a review of essentially all the functions and facets of a bank and its operation.  It necessitates poring through voluminous documents, and requires a detailed evaluation thereof.  Such a process then involves an intrusion into a bank’s records.

In contrast, although it also involves a detailed evaluation, an investigation centers on specific acts of omissions and, thus, requires a less invasive assessment.

The practical justification for not requiring the Monetary Board approval to conduct an investigation of banks is the administrative hurdles and paperwork it entails, and the correspondent time to complete those additional steps or requirements.  As in other types of investigation, time is always of essence, and it is prudent to expedite the proceedings if an accurate conclusion is to be arrived at, as an investigation is only as precise as the evidence on which it is based.  The promptness with which such evidence is gathered is always of utmost importance because evidence, documentary evidence in particular, is remarkably fungible.  A PDIC investigation is conducted to “determine[e] whether the allegations in a complaint or findings in a final report of examination may properly be the subject of an administrative, criminal or civil action.”[76]  In other words, an investigation is based on reports of examination and an examination is conducted with prior Monetary Board approval. Therefore, it would be unnecessary to secure a separate approval for the conduct of an  investigation. Such would merely prolong the process and provide unscrupulous individuals the opportunity to cover their tracks.

Indeed, while in a literary sense, the two terms may be used interchangeably, under the PDIC Charter, examination and investigation refer to two different processes.  To reiterate, an examination of banks requires the prior consent of the Monetary Board, whereas an investigation based on an examination report, does not.
 x x x."
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Redemption period; writ of possession - G.R. No. 167998

February 10, 2014, 12:26 pm
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See - G.R. No. 167998





"x x x.



Essential to note, the injunction granted by the Makati RTC and upheld by this Court mainly enjoined respondent from consolidating its title over the foreclosed property.  It is not correct for petitioner to assume that the injunction also prohibits respondent from taking possession of the property.
          A writ of possession is a writ of execution employed to enforce a judgment to recover the possession of land.  It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment.[20]  It may be issued in case of an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118.[21]

          Under said provision, the writ of possession may be issued to the purchaser in a foreclosure sale either within the one-year redemption period upon the filing of a bond, or after the lapse of the redemption period, without need of a bond.[22]

          We have consistently held that the duty of the trial court to grant a writ of possession is ministerial.  Such writ issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond.  No discretion is left to the trial court.  Any question regarding the regularity and validity of the sale, as well as the consequent cancellation of the writ, is to be determined in a subsequent proceeding as outlined in Section 8[23] of Act No. 3135.  Such question cannot be raised to oppose the issuance of the writ, since the proceeding is ex parte.  The recourse is available even before the expiration of the redemption period provided by law and the Rules of Court.[24]

          To emphasize the writ’s ministerial character, we have in previous cases disallowed injunction to prohibit its issuance, just as we have held that issuance of the same may not be stayed by a pending action for annulment of mortgage or the foreclosure itself.[25]

          A writ of possession may also be issued after consolidation of ownership of the property in the name of the purchaser.  It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of sale. Hence, he is entitled to the possession of the property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title.  In such a case, the bond required in Section 7 of Act No. 3135 is no longer necessary.  Possession of the land then becomes an absolute right of the purchaser as confirmed owner.  Upon proper application and proof of title, the issuance of the writ of possession becomes a ministerial duty of the court.[26]
          Inasmuch as respondent was enjoined to consolidate its title over the foreclosed property, possession thereof did not become an absolute right of respondent.  The temporary restraining order issued on March 13, 2000 and the writ of injunction that followed effectively halted the tolling of the redemption period three days short of its expiration.[27]

Nonetheless, respondent, as the purchaser in the foreclosure sale, may apply for a writ of possession during the redemption period.  In fact, it did apply for a writ on December 27, 1999, wellwithin the redemption period.  The San Fernando RTC, given its ministerial duty to issue the writ, therefore, should have acted on the ex parte petition.  The injunction order is of no moment because it should be understood to have merely stayed the consolidation of title.  As previously stated, an injunction is not allowed to prohibit the issuance of a writ of possession.  Neither does the pending case for annulment of foreclosure sale, mortgage contract, promissory notes and damages stay the issuance of said writ.
x x x."
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Before an injunctive writ is issued, it is essential that the following requisites are present: (1) the existence of a right to be protected and (2) the acts against which the injunction is directed are violative of the right. - G.R. NO. 164324

February 10, 2014, 12:32 pm
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See - G.R. NO. 164324





"x x x.



 Before an injunctive writ is issued, it is essential that the following requisites are present: (1) the existence of a right to be protected and (2) the acts against which the injunction is directed are violative of the right. The onus probandi is on the movant to show that the invasion of the right sought to be protected is material and substantial, that the right of the movant is clear and unmistakable, and that there is an urgent and paramount necessity for the writ to prevent serious damage.[35]

         San Miguel claims that the requisites for the valid issuance of a writ of preliminary injunction were clearly established. The clear and unmistakable right to the exclusive use of the mark “Ginebra” was proven through the continuous use of “Ginebra” in the manufacture, distribution, marketing and sale of gin products throughout the Philippines since 1834. To the gin-drinking public, the word “Ginebra” does not simply indicate a kind of beverage; it is now synonymous with San Miguel’s gin products.[36]

         San Miguel contends that “Ginebra” can be appropriated as a trademark, and there was no error in the trial court’s provisional ruling based on the evidence on record. Assuming that “Ginebra” is a generic word which is proscribed to be registered as a trademark under Section 123.1(h)[37] of Republic Act No. 8293 or the Intellectual Property Code (IP Code),[38] it can still be appropriated and registered as a trademark under Section 123.1(j)[39] in relation to Section 123.2[40] of the IP Code, considering that “Ginebra” is also a mark which designates the kind of goods produced by San Miguel.[41] San Miguel alleges that although “Ginebra,” the Spanish word for “gin,” may be a term originally incapable of exclusive appropriation, jurisprudence dictates that the mark has become distinctive of San Miguel’s products due to its substantially exclusive and continuous use as the dominant feature of San Miguel’s trademarks since 1834. Hence, San Miguel is entitled to a finding that the mark is deemed to have acquired a secondary meaning.[42] San Miguel states that Tanduay failed to present any evidence to disprove its claims; thus, there is no basis to set aside the grant of the TRO and writ of preliminary injunction.[43]

         San Miguel states that its disclaimer of the word “Ginebra” in some of its registered marks is without prejudice to, and did not affect, its existing or future rights over “Ginebra,” especially since “Ginebra” has demonstrably become distinctive of San Miguel’s products.[44] San Miguel adds that it did not disclaim “Ginebra” in all of its trademark registrations and applications like its registration for “Ginebra Cruz de Oro,” “Ginebra Ka Miguel,” “Ginebra San Miguel” bottle, “Ginebra San Miguel,” and “Barangay Ginebra.”[45]

         Tanduay asserts that not one of the requisites for the valid issuance of  a preliminary injunction is present in this case. Tanduay argues that San Miguel cannot claim the exclusive right to use the generic word “Ginebra” for its gin products based on its registration of the composite marks “Ginebra San Miguel,” “Ginebra S. Miguel 65,” and “La Tondeña Cliq! Ginebra Mix,” because in all of these registrations, San Miguel disclaimed any exclusive right to use the non-registrable word “Ginebra” for gin products.[46] Tanduay explains that the word “Ginebra,” which is disclaimed by San Miguel in all of its registered trademarks, is an unregistrable component of the composite mark “Ginebra San Miguel.” Tanduay argues that this disclaimer further means that San Miguel does not have an exclusive right to the generic word “Ginebra.”[47] Tanduay states that the word “Ginebra” does not indicate the source of the product, but it is merely descriptive of the name of the product itself and not the manufacturer thereof.[48]

         Tanduay submits that it has been producing gin products under the brand names Ginebra 65, Ginebra Matador, and Ginebra Toro without any complaint from San Miguel. Tanduay alleges that San Miguel has not filed any complaint against other liquor companies which use “Ginebra” as part of their brand names such as Ginebra Pinoy, a registered trademark of Webengton Distillery; Ginebra Presidente and Ginebra Luzon as registered trademarks of Washington Distillery, Inc.; and Ginebra Lucky Nine and Ginebra Santiago as registered trademarks of Distileria Limtuaco & Co., Inc.[49] Tanduay claims that the existence of these products, the use and registration of the word “Ginebra” by other companies as part of their trademarks belie San Miguel’s claim that it has been the exclusive user of the trademark containing the word “Ginebra” since 1834.

         Tanduay argues that before a court can issue a writ of preliminary injunction, it is imperative that San Miguel must establish a clear and unmistakable right that is entitled to protection. San Miguel’s alleged exclusive right to use the generic word “Ginebra” is far from clear and unmistakable. Tanduay claims that the injunction issued by the trial court  was based on its premature conclusion that “Ginebra Kapitan” infringes “Ginebra San Miguel.”[50]

         In Levi Strauss & Co. v. Clinton Apparelle, Inc.,[51] we held:

         While the matter of the issuance of a writ of preliminary injunction is addressed to the sound discretion of the trial court, this discretion must be exercised based upon the grounds and in the manner provided by law. The exercise of discretion by the trial court in injunctive matters is generally not interfered with save in cases of manifest abuse. And to determine whether there was grave abuse of discretion, a scrutiny must be made of the bases, if any, considered by the trial court in granting injunctive relief. Be it stressed that injunction is the strong arm of equity which must be issued with great caution and deliberation, and only in cases of great injury where there is no commensurate remedy in damages.[52]


         The CA upheld the trial court’s ruling that San Miguel has sufficiently established its right to prior use and registration of the word “Ginebra” as a dominant feature of its trademark.  The CA ruled that based on San Miguel’s extensive, continuous, and substantially exclusive use of the word “Ginebra,” it has become distinctive of San Miguel’s gin products; thus, a clear and unmistakable right was shown.

         We hold that the CA committed a reversible error. The issue in the main case is San Miguel’s right to the exclusive use of the mark “Ginebra.” The two trademarks “Ginebra San Miguel” and “Ginebra Kapitan” apparently differ when taken as a whole, but according to San Miguel, Tanduay appropriates the word “Ginebra” which is a dominant feature of San Miguel’s mark.

         It is not evident whether San Miguel has the right to prevent other business entities from using the word “Ginebra.” It is not settled (1) whether “Ginebra” is indeed the dominant feature of the trademarks, (2) whether it is a generic word that as a matter of law cannot be appropriated, or (3) whether  it is merely a descriptive word that may be appropriated based on the fact that it has acquired a secondary meaning.

         The issue that must be resolved by the trial court is whether a word like “Ginebra” can acquire a secondary meaning for gin products so as to prohibit the use of the word “Ginebra” by other gin manufacturers or sellers. This boils down to whether the word “Ginebra” is a generic mark that is incapable of appropriation by gin manufacturers. 

         In Asia Brewery, Inc. v. Court of Appeals,[53] the Court ruled that “pale pilsen” are generic words, “pale” being the actual name of the color and “pilsen” being the type of beer, a light bohemian beer with a strong hops flavor that originated in Pilsen City in Czechoslovakia and became famous in the Middle Ages,  and hence incapable of appropriation by any beer manufacturer.[54] Moreover, Section 123.1(h) of the IP Code states that a mark cannot be registered if it “consists exclusively of signs that are generic for the goods or services that they seek to identify.” 

         In this case, a cloud of doubt exists over San Miguel’s exclusive right relating to the word “Ginebra.”  San Miguel’s claim to the exclusive use of the word “Ginebra” is clearly still in dispute because of Tanduay’s claim that it has, as others have, also registered the word “Ginebra” for its gin products. This issue can be resolved only after a full-blown trial.

         In Ong Ching Kian Chuan v. Court of Appeals,[55] we held that in the absence of proof of a legal right and the injury sustained by the movant, the trial court’s order granting the issuance of an injunctive writ will be set aside,  for having been issued with grave abuse of discretion.

         We find that San Miguel’s right to injunctive relief has not been clearly and unmistakably demonstrated. The right to the exclusive use of the word “Ginebra” has yet to be determined in the main case.  The trial court’s grant of the writ of preliminary injunction in favor of San Miguel, despite the lack of a clear and unmistakable right on its part, constitutes grave abuse of discretion amounting to lack of jurisdiction.
x x x."
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Service incentive leave

February 11, 2014, 1:25 am
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Pol Sangalang shared Labor Law Made Easy's status update.
Labor Law Made Easy
Did you know that small retail and service establishments are exempted from granting SERVICE INCENTIVE LEAVE to their employees?

Article 95 of the Labor Code provides: 

"Right to service incentive leave. (a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.

(b) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor after considering the viability or financial condition of such establishment."
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Changes to investment rules pushed | Inquirer Business

February 12, 2014, 2:06 am
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See - Changes to investment rules pushed | Inquirer Business





"x x x.



MANILA, Philippines—The Joint Foreign Chambers has urged lawmakers to pass amendments to the Foreign Investments Act that will allow more foreign nationals to practice in the Philippines and make it easier for more foreign investors to set up shop in the country.

In a statement, JFC stressed that the “practice of professions is not a germane provision in the Foreign Investment Negative List (FINL), a document created by the Foreign Investment Act. The FINL is intended to catalogue limitations on foreign equity in non-banking business sectors.”

“The constitution creates a policy bias in favor of Philippine citizens, but not a strict legal barrier to the participation of foreign professionals,’” the group explained.

According to the JFC, there are 47 laws governing specific professions, and 42 contain “reciprocity” provisions allowing foreigners to practice their profession in the Philippines, provided their countries of origin also allow Filipino professionals to practice there.

A Supreme Court rule, meanwhile, limits the practice of law to Philippine nationals. Four laws regulating criminologists, foresters, pharmacists, and radio and X-ray technologists also state that these professions are restricted to Philippine nationals and contain no reciprocity provision, it added.

“Considering that certain laws governing each profession allow foreign nationals to practice in the Philippines under reciprocity arrangements, it is extremely misleading to include such item in the FINL as a nationalized activity. This effectively discourages foreign professionals who could otherwise be allowed to practice here by virtue of reciprocity from working in the Philippines and sharing their ideas and technical know-how, contrary to the inclusive policy of the [Foreign Investments Act],” the group stressed.

Meanwhile, the JFC noted that the existing Foreign Investment Act allows 100-percent foreign ownership in domestic market activities above a minimum investment of $100,000 for those with advanced technology or have at least 50 employees, or otherwise $200,000.

“Operationally speaking, a $100,000 enterprise—only a little over P4.3 million—cannot immediately sustain a labor force of 50 persons. When the law was enacted in 1991, the minimum wage in the National Capital Region was P142 and today, it is P466. P4.3 million is not enough to sustain a labor force of 50 persons at the current minimum wage,” the JFC explained.

“So as not to render pointless this provision of the law, and to align it with the spirit of the FlA, there is a need to retain the employment requirement but lower the threshold to a more reasonable number. This will allow smaller investments to come in and go into industries like tourism, which will facilitate the entry of more foreign nationals and investments,” it added.

Lowering this threshold is expected to benefit the country’s tourism industry, as it will allow more foreign nationals to invest in small retail establishments to meet the cultural and dietary needs of these nationals such as the provision of foreign language guide services, putting up restaurants and the like.


x x x ."

Read more: http://business.inquirer.net/163840/changes-to-investment-rules-pushed#ixzz2t6JNhDts
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Oral defamation, slander - G.R. No. 160351

February 19, 2014, 4:53 pm
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See - G.R. No. 160351





"x x x.





The issues are: (1) whether the Court of Appeals erred in sustaining the conviction of petitioner for grave oral defamation in Criminal Case No. 139-94, and (2) whether the Court of Appeals erred in sustaining the conviction of petitioner for serious slander by deed in Criminal Case No. 140-94.

Anent the first issue, Article 358 of the Revised Penal Code provides:

Art. 358. Slander. – Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise, the penalty shall be arresto menor or a fine not exceeding 200 pesos.


Slander is libel committed by oral (spoken) means, instead of in writing. The term oral defamation or slander as now understood, has been defined as the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood.[20]

There is grave slander when it is of a serious and insulting nature.  The gravity of the oral defamation depends not only (1) upon the expressions used, but also (2) on the personal relations of the accused and the offended party, and (3) the circumstances surrounding the case.[21]  Indeed, it is a doctrine of ancient respectability that defamatory words will fall under one or the other, depending not only upon their sense, grammatical significance, and accepted ordinary meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationship between the offended party and the offender, which might tend to prove the intention of the offender at the time.[22]

In our previous rulings, we held that the social standing and position of the offended party are also taken into account and thus, it was held that the slander was grave, because the offended party had held previously the Office of Congressman, Governor, and Senator and was then a candidate for Vice-President,[23] for which no amount of sophistry would take the statement out of the compass of grave oral defamation.[24]  However, we have, likewise, ruled in the past that uttering defamatory words in the heat of anger, with some provocation on the part of the offended party constitutes only a light felony.[25]

In the case at bar, as a public official, petitioner, who was holding the position of Councilor at that time, is hidebound to be an exemplar to society against the use of intemperate language particularly because the offended party was a Vice-Mayor.  However, we cannot keep a blind eye to the fact that such scathing words were uttered by him in the heat of anger triggered by the fact, as found by the Court of Appeals, that complainant refused, without valid justification to approve the monetization of accrued leave credits of petitioner.  In a manner of speaking, she sowed the wind that reaped the storm.

          In the words of the Court of Appeals:

The already existing animosity between them does not vest in the complainant the prerogative to deny petitioner a right to which he was legally entitled.  Exemplary damages cannot be recovered as a matter of right.  They are designed to permit the court to mould behavior that has socially deleterious consequences.  Its imposition is required by public policy to suppress the wanton acts of the offender. It cannot be invoked as a matter of right. x x x [26]


The above findings of fact of the Court of Appeals supported by substantial evidence are conclusive and binding on the parties and are not reviewable by this Court.[27]  Considering this finding, the Court of Appeals not only should have struck out the award of exemplary damages but should have modified as well the offense committed to be of simple nature punishable by arresto mayor or a fine not exceeding P200.00 under the above-quoted Art. 358 of the Revised Penal Code.

In Pader v. People,[28] complainant was conversing with his political leaders at the terrace of his house at Morong, Bataan, when petitioner appeared at the gate and shouted “putang ina mo Atty. Escolango.  Napakawalanghiya mo!”  The latter was dumbfounded and embarrassed.  At that time, Atty. Escolango was a candidate for Vice Mayor of Morong, Bataan in the elections of 8 May 1995. We held that the offense committed was only slight slander.  We explained why in this wise:
The issue is whether petitioner is guilty of slight or serious oral defamation.  In resolving the issue, we are guided by a doctrine of ancient respectability that defamatory words will fall under one or the other, depending not only upon their sense, grammatical significance, and accepted ordinary meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationship between the offended party and the offender, which might tend to prove the intention of the offender at the time.
Unquestionably, the words uttered were defamatory.  Considering, however, the factual backdrop of the case, the oral defamation was only slight.  The trial court, in arriving at its decision, considered that the defamation was deliberately done to destroy Atty. Escolango’s reputation since the parties were political opponents.
We do not agree.  Somehow, the trial court failed to appreciate the fact that the parties were also neighbors; that petitioner was drunk at the time he uttered the defamatory words; and the fact that petitioner’s anger was instigated by what Atty. Escolango did when petitioner’s father died.  In which case, the oral defamation was not of serious or insulting nature.
In Reyes v. People [137 Phil. 112, 120 (1969)], we ruled that the expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure.  In fact, more often, it is just an expletive that punctuates one’s expression of profanity.  We do not find it seriously insulting that after a previous incident involving his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger.  Obviously, the intention was to show his feelings of resentment and not necessarily to insult the latter.  Being a candidate running for vice mayor, occasional gestures and words of disapproval or dislike of his person are not uncommon.
In similar fashion, the trial court erred in awarding moral damages without proof of suffering. Accordingly, petitioner may be convicted only of slight oral defamation defined and penalized under Article 358, Revised Penal Code, prescribing the penalty of arresto mayor or a fine not exceeding 200 pesos.[29] (Emphasis supplied.)


Similarly, in Cruz v. Court of Appeals,[30]  petitioner and complainant, a Municipal Judge, were next door neighbors.  Animosity grew between their two families because of some disputes. Petitioner resented the practice of complainant of throwing garbage and animal excrement into her premises. There was also a boundary dispute between petitioner's mother and complainant, which was the subject of a civil suit for "Recovery of Possession, Ownership, Enforcement of Legal Easement and Abatement of Nuisance" filed by the mother before the Court of First Instance of Iloilo against complainant.  Additionally, petitioner's mother had previously instituted an administrative complaint against the complainant before the Supreme Court, but the same was dismissed.  There was a pent-up feeling of being aggrieved, resentment, anger, and vexation on petitioner's part, culminating in her outburst against complainants.  For having called the complainant judge "land grabber,""shameless" and "hypocrite," petitioner was charged and subsequently convicted by the Court of First Instance of three separate offenses of Grave Oral Defamation committed on 5, 6 and 8 August 1976.  On appeal, the Court of Appeals affirmed the verdicts of conviction.  On review, however, we held that although the abusive remarks may ordinarily be considered as serious defamation, under the environmental circumstances of the case, there having been provocation on complainant's part, and the utterances complained of having been made in the heat of unrestrained anger and obfuscation, petitioner is liable only for the crime of Slight Oral Defamation.  Petitioner was sentenced to pay a fine of P200.00 in each of the criminal cases, with subsidiary imprisonment in case of insolvency, and to pay the costs.

Guided by the foregoing precedents, we find petitioner guilty only of slight oral defamationbecause of the attendant circumstances in the case at bar.

Lest we be misconstrued, the Court does not condone the vilification or use of scurrilous language on the part of petitioner, but following the rule that all possible circumstances favorable to the accused must be taken in his favor, it is our considered view that the slander committed by petitioner can be characterized as slight slander following the doctrine that uttering defamatory words in the heat of anger, with some provocation on the part of the offended party, constitutes only a light felony.[31] 

In fact, to be denied approval of monetization of leave without valid justification, but as an offshoot of a political dissension may have been vexing for petitioner and may have been perceived by him as provocation that triggered him to blow his top and utter those disparaging words.  In hindsight, to be denied monetization of leave credits must have stirred upon the petitioner a feeling akin to begging for money that he was legally entitled to.  This oppressive conduct on the part of complainant must have scarred petitioner’s self-esteem, too, to appear as begging for money.  But again, this is not an excuse to resort to intemperate language no matter how such embarrassment must have wreaked havoc on his ego.
x x x."
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Slander by deed - G.R. No. 160351

February 19, 2014, 4:56 pm
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See - G.R. No. 160351





"x x x.



The next issue that faces this Court is whether or not petitioner’s act of poking a dirty finger at complainant constitutes grave slander by deed.

Following the same principle as enunciated in our foregoing discussion of the first issue, we find petitioner guilty only of slight slander by deed in Criminal Case No. 140-94 inasmuch as we find complainant’s unjust refusal to sign petitioner’s application for monetization and her act of throwing a coke bottle at him constituted a perceived provocation that triggered the “poking of finger” incident.

Article 359 of the Revised Penal Code provides:

Art. 359. Slander by deed. – The penalty of arresto mayor in its maximum period to prision correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit, or contempt upon another person. If said act is not of a serious nature, the penalty shall bearresto menor or a fine not exceeding 200 pesos.


Slander by deed is a crime against honor, which is committed by performing any act, which casts dishonor, discredit, or contempt upon another person.  The elements are (1) that the offender performs any act not included in any other crime against honor, (2) that such act is performed in the presence of other person or persons, and (3) that such act casts dishonor, discredit or contempt upon the offended party.  Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the social standing of the offended party, the circumstances under which the act was committed, the occasion, etc.[32]  It is libel committed by actions rather than words.  The most common examples are slapping someone or spitting on his/her face in front of the public market, in full view of a crowd, thus casting dishonor, discredit, and contempt upon the person of another.

In Mari v. Court of Appeals,[33] complainant and petitioner were co-employees in the Department of Agriculture, with office at Digos, Davao del Sur, although complainant occupied a higher position.  On 6 December 1991, petitioner borrowed from complainant the records of his 201 file. However, when he returned the same three days later, complainant noticed that several papers were missing which included official communications from the Civil Service Commission and Regional Office, Department of Agriculture, and a copy of the complaint by the Rural Bank of Digos against petitioner.  Upon instruction of her superior officer, complainant sent a memorandum to petitioner asking him to explain why his 201 file was returned with missing documents.  Instead of acknowledging receipt of the memorandum, petitioner confronted complainant and angrily shouted at her: "Putang ina, bullshit, bugo."  He banged a chair in front of complainant and choked her.  With the intervention of the security guard, petitioner was prevailed upon to desist from further injuring complainant.  We held:

Prescinding from the foregoing, it would serve the ends of justice better if the petitioner were sentenced to pay a fine instead of imprisonment.  The offense while considered serious slander by deed was done in the heat of anger and was in reaction to a perceived provocation.  The penalty for serious slander by deed may be either imprisonment or a fine.  We opt to impose a fine.

ACCORDINGLY, the Court hereby SETS ASIDE the decision of the Court of Appeals and in lieu thereof renders judgment finding petitioner guilty beyond reasonable doubt of serious slander by deed defined and penalized under Article 359 of the Revised Penal Code, and sentencing him to pay a fine of P1,000.00, with subsidiary imprisonment in case of insolvency.[34]  (Emphasis supplied.)


In Mari, the Court found petitioner guilty of serious slander by deed defined and penalized under Article 359 of the Revised Penal Code, and sentenced him to pay a fine of P1,000.00, with subsidiary imprisonment in case of insolvency.  The deed involved was the banging of a chair in front of complainant and choking her.

In another case, Teodoro v. Court of Appeals,[35] the incident, which gave rise to this case, is narrated as follows:

Petitioner Amado B. Teodoro was vice-president and corporate secretary of the DBT-Marbay Construction, Inc., while complainant, Carolina Tanco-Young, was treasurer of the same corporation. Petitioner is the brother of the president of the corporation, Donato Teodoro, while complainant is the daughter of the chairman of the board of the corporation, Agustin Tanco. x x x

Records show that the incident complained of took place at the Board Room of the D.B.T. Mar Bay Construction Incorporated in the afternoon of August 17, 1984.  Present at the meeting were Agustin Tanco, Chairman of the Board; the President, Donato Teodoro; the accused, Amado Teodoro, as Corporate Secretary; the complainant, Carolina Tanco-Young who is the Treasurer; and one OscarBenares.

x x x x

It appears that there was a controversial document being insisted upon by the accused, as secretary, to be signed by the chairman.  The Board Treasurer, Carolina Tanco-Young questioned the propriety of having the document signed as there was, according to her, no such meeting that ever took place as to show a supposed resolution to have been deliberated upon.  A verbal exchange of words and tirades took place between the accused Secretary and the Treasurer.  One word led to another up to the point where Carolina Tanco-Young, the treasurer, either by implication or expressed domineering words, alluded to the accused as a "falsifier" which blinded the accused-appellant to extreme anger and rage, thus leading him to slap Tanco-Young — the alleged name caller.[36]  (Emphasis supplied.)


This Court in Teodoro held that there was grave slander by deed.

In another case, the acts of pushing and slapping a woman in order to ridicule and shame her before other people constitute the felony of slander by deed defined and penalized under Article 359 of the Revised Penal Code by arresto mayor in its maximum period to prision correccional in its minimum period.[37]

In the cases as above-cited, there was no provocation on the part of the complainants unlike the present case.  Moreover, the “poking of the finger” in the case at bar was, palpably, of less serious magnitude compared to the banging of chair, the choking in Mari and the slapping of a face inTeodoro.  Thus, we find that the poking of dirty finger in the case at bar, while it smacks of slander by deed, is of a lesser magnitude than the acts committed in the foregoing cases.

Moreover, pointing a dirty finger ordinarily connotes the phrase “Fuck You,” which is similar to the expression “Puta” or “Putang Ina mo,” in local parlance.  Such expression was not held to be libelous in Reyes v. People,[38]  where the Court said that:  “This is a common enough expression in the dialect that is often employed, not really to slander but rather to express anger or displeasure.  It is seldom, if ever, taken in its literal sense by the hearer, that is, as a reflection on the virtues of a mother.”  Following Reyes, and in light of the fact that there was a perceived provocation coming from complainant, petitioner’s act of pointing a dirty finger at complainant constitutes simple slander by deed, it appearing from the factual milieu of the case that the act complained of was employed by petitioner "to express anger or displeasure" at complainant for procrastinating the approval of his leave monetization. While it may have cast dishonor, discredit or contempt upon complainant, said act is not of a serious nature, thus, the penalty shall be arresto menor meaning, imprisonment from one day to 30 days or a fine not exceeding P200.00. We opt to impose a fine following Mari.[39]

Yes, complainant was then a Vice-Mayor and a lady at that, which circumstances ordinarily demanded respect from petitioner.  But, it was, likewise, her moral obligation springing from such position to act in a manner that is worthy of respect. In the case at bar, complainant’s demeanor of refusing to sign the leave monetization of petitioner, an otherwise valid claim, because of a political discord smacks of a conduct unbecoming of a lady and a Vice-Mayor at that.  Moreover, it appears that she had, indeed, thrown a bottle of coke at petitioner, which actuation reveals that she, too, had gone down to petitioner’s level.

Holding an esteemed position is never a license to act capriciously with impunity.  The fact that there was a squabble between petitioner and complainant, both high-ranking local public officials, that a verbal brawl ostensibly took place, speaks very poorly of their self-control and public relations.  For this, they both deserve to be censured and directed to conduct themselves in a more composed manner and keep their pose as befits ranking officials who officially deal with the public.[40]

To be worthy of respect, one must act respectably, remembering always that courtesy begets courtesy.

Anent the award of damages, the Court of Appeals erred in increasing the award of moral damages to P100,000.00 in light of its own finding that petitioner himself was “a victim of complainant’s indiscretion for her refusal, for no reason at all, to approve petitioner’s application for monetization of his accrued leave credits.”  

In similar fashion, considering that petitioner and complainant belong to warring political camps, occasional gestures and words of disapproval or dislike are among the hazards of the job.[41] Considering this political reality and the fact that the Court of Appeals concluded, based on evidence on records, that petitioner himself was a victim of complainant’s indiscretion, her claim for damages and attorney’s fees must, likewise, fail.  Akin to the principle that “he who comes to court must have clean hands,” each of the parties, in the case at bar, must bear his own loss.
 x x x."
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The expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slender but rather to express anger or displeasure. - Pader vs People : 139157 : February 8, 2000 : J. Pardo : First Division

February 19, 2014, 5:03 pm
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"x x x.



The issue is whether petitioner is guilty of slight or serious oral defamation.  In resolving the issue, we are guided by a doctrine of ancient respectability that defamatory words will fall under one or the other, depending not only upon their sense, grammatical significance, and accepted ordinary meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationship between the offended party and the offender, which might tend to prove the intention of the offender at the time.[12]
Unquestionably, the words uttered were defamatory.  Considering, however, the factual backdrop of the case, the oral defamation was only slight.  The trial court, in arriving at its decision, considered that the defamation was deliberately done to destroy Atty. Escolango’s reputation since the parties were political opponents.
We do not agree.  Somehow, the trial court failed to appreciate the fact that the parties were also neighbors; that petitioner was drunk at the time he uttered the defamatory words; and the fact that petitioner’s anger was instigated by what Atty. Escolango did when petitioner’s father died.[13] In which case, the oral defamation was not of serious or insulting nature.
In Reyes vs. People,[14] we ruled that the expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slender but rather to express anger or displeasure.  In fact, more often, it is just an expletive that punctuates one’s expression of profanity.  We do not find it seriously insulting that after a previous incident involving his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger.  Obviously, the intention was to show his feelings of resentment and not necessarily to insult the latter.  Being a candidate running for vice mayor, occasional gestures and words of disapproval or dislike of his person are not uncommon.
In similar fashion, the trial court erred in awarding moral damages without proof of suffering.[15]Accordingly, petitioner may be convicted only of slight oral defamation defined and penalized under Article 358, Revised Penal Code, prescribing the penalty of arresto mayor or a fine not exceeding 200 pesos.
x x x."
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Libel - G.R. No. 161032

February 19, 2014, 5:40 pm
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See - G.R. No. 161032





"x x x.



Freedom of the Press v. Responsibility of the Press

          The Court has long respected the freedom of the press, and upheld the same when it came to commentaries made on public figures and matters of public interest.  Even in cases wherein the freedom of the press was given greater weight over the rights of individuals, the Court, however, has stressed that such freedom is not absolute and unbounded.  The exercise of this right or any right enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that right.  The recognition of a right is not free license for the one claiming it to run roughshod over the rights of others.

          The Journalist’s Code of Ethics adopted by the National Union of Journalists of the Philippinesshows that the press recognizes that it has standards to follow in the exercise of press freedom; that this freedom carries duties and responsibilities.  Art. I of said code states that journalists “recognize the duty to air the other side and the duty to correct substantive errors promptly.”  Art. VIII states that journalists “shall presume persons accused of crime of being innocent until proven otherwise.”

          In the present case, it cannot be said that Tulfo followed the Journalist’s Code of Ethics and exercised his journalistic freedom responsibly.

           In his series of articles, he targeted one Atty. “Ding” So of the Bureau of Customs as being involved in criminal activities, and was using his public position for personal gain.  He went even further than that, and called Atty. So an embarrassment to his religion, saying “ikaw na yata ang pinakagago at magnanakaw sa miyembro nito.”[26]  He accused Atty. So of stealing from the government with his alleged corrupt activities.[27]  And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, “Nagalit itong tarantadong si Atty. Sodahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].”[28]

          In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known him prior to the publication of the subject articles.  He also admitted that he did not conduct a more in-depth research of his allegations before he published them, and relied only on his source at the Bureau of Customs.

          In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for personal gain, and even stated that he had been the victim of such a practice.  He argued then that it may have been someone else using the name of Atty. So for corrupt practices at the SouthHarbor, and this person was the target of his articles.  This argument weakens his case further, for even with the knowledge that he may be in error, even knowing of the possibility that someone else may have used Atty. So’s name, as Tulfo surmised, he made no effort to verify the information given by his source or even to ascertain the identity of the person he was accusing.

          The trial court found Tulfo’s accusations against Atty. So to be false, but Tulfo argues that the falsity of contents of articles does not affect their privileged character.  It may be that the falsity of the articles does not prove malice.  Neither did Borjal give journalists carte blanche with regard to their publications.  It cannot be said that a false article accusing a public figure would always be covered by the mantle of qualified privileged communication.  The portion of Borjal cited by Tulfo must be scrutinized further:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice.  Errors or misstatements are inevitable in any scheme of truly free expression and debate.   Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language.  There must be some room for misstatement of fact as well as for misjudgment.  Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held –

A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies.  It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of “actual malice” on the part of the person making the libelous statement.[29] (Emphasis supplied.)


          Reading more deeply into the case, the exercise of press freedom must be done “consistent with good faith and reasonable care.”  This was clearly abandoned by Tulfo when he wrote the subject articles.  This is no case of mere error or honest mistake, but a case of a journalist abdicating his responsibility to verify his story and instead misinforming the public.  Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor does this margin cover total abandonment of responsibility.

          Borjal may have expanded the protection of qualified privileged communication beyond the instances given in Art. 354 of the RPC, but this expansion does not cover Tulfo.  The addition to the instances of qualified privileged communications is reproduced as follows:
         
          To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.  The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable.  In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition.  If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.[30] (Emphasis supplied.)


          The expansion speaks of “fair commentaries on matters of public interest.”  While Borjal places fair commentaries within the scope of qualified privileged communication, the mere fact that the subject of the article is a public figure or a matter of public interest does not automatically exclude the author from liability.  Borjal allows that for a discreditable imputation to a public official to be actionable, it must be a false allegation of fact or a comment based on a false supposition.  As previously mentioned, the trial court found that the allegations against Atty. So were false and that Tulfo did not exert effort to verify the information before publishing his articles.      

          Tulfo offered no proof for his accusations.  He claimed to have a source in the Bureau of Customs and relied only on this source for his columns, but did no further research on his story.  The records of the case are bereft of any showing that Atty. So was indeed the villain Tulfo pictured him to be.  Tulfo’s articles related no specific details or acts committed to prove Atty. So was indeed a corrupt public official.  These columns were unsubstantiated attacks on Atty. So, and cannot be countenanced as being privileged simply because the target was a public official.  Although wider latitude is given to defamatory utterances against public officials in connection with or relevant to their performance of official duties, or against public officials in relation to matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech.[31]  Journalists still bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest.  As held in In Re: Emil P. Jurado:       

            Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts the truth; or that a newsman may ecape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do so.  It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists’ Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of those sources.[32]


          The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only citing his one unnamed source.  It is not demanded of him that he name his source.  The confidentiality of sources and their importance to journalists are accepted and respected.  What cannot be accepted are journalists making no efforts to verify the information given by a source, and using that unverified information to throw wild accusations and besmirch the name of possibly an innocent person.  Journalists have a responsibility to report the truth, and in doing so must at least investigate their stories before publication, and be able to back up their stories with proof.  The rumors and gossips spread by unnamed sources are not truth.  Journalists are not storytellers or novelists who may just spin tales out of fevered imaginings, and pass them off as reality.  There must be some foundation to their reports; these reports must be warranted by facts.       

          Jurado also established that the journalist should exercise some degree of care even when writing about public officials.  The case stated:
           
            Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other.  And the point of adjustment or accommodation between these two legitimate interests is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish.  The norm does notrequire that a journalist guarantee the truth of what he says or publishes.  But the norm does prohibit thereckless disregard of private reputation by publishing or circulating defamatory statements without anybona fide effort to ascertain the truth thereof.  That this norm represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in thePhilippines.[33]  
         

Tulfo has clearly failed in this regard.  His articles cannot even be considered as qualified privileged communication under the second paragraph of Art. 354 of the RPC which exempts from the presumption of malice “a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”  This particular provision has several elements which must be present in order for the report to be exempt from the presumption of malice.  The provision can be dissected as follows:


In order that the publication of a report of an official proceeding may be considered privileged, the following conditions must exist:

(a)                That it is a fair and true report of a judicial, legislative, or other official proceedingswhich are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions;
(b)               That it is made in good faith; and
(c)                That it is without any comments or remarks.[34]  

The articles clearly are not the fair and true reports contemplated by the provision.  They provide no details of the acts committed by the subject, Atty. So.  They are plain and simple baseless accusations, backed up by the word of one unnamed source.  Good faith is lacking, as Tulfo failed to substantiate or even attempt to verify his story before publication.  Tulfo goes even further to attack the character of the subject, Atty. So, even calling him a disgrace to his religion and the legal profession.  As none of the elements of the second paragraph of Art. 354 of the RPC is present in Tulfo’s articles, it cannot thus be argued that they are qualified privileged communications under the RPC.

Breaking down the provision further, looking at the terms “fair” and “true,” Tulfo’s articles do not meet the standard.  “Fair” is defined as “having the qualities of impartiality and honesty.”[35] “True” is defined as “conformable to fact; correct; exact; actual; genuine; honest.”[36]  Tulfo failed to satisfy these requirements, as he did not do research before making his allegations, and it has been shown that these allegations were baseless.  The articles are not “fair and true reports,” but merely wild accusations.

Even assuming arguendo that the subject articles are covered by the shield of qualified privileged communication, this would still not protect Tulfo. 

In claiming that his articles were covered by qualified privileged communication, Tulfo argues that the presumption of malice in law under Art. 354 of the RPC is no longer present, placing upon the prosecution the burden of proving malice in fact.  He then argues that for him to be liable, there should have been evidence that he was motivated by ill will or spite in writing the subject articles. 

The test to be followed is that laid down in New York Times Co. v. Sullivan,[37] and reiterated in Flor v. People, which should be to determine whether the defamatory statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.[38] 

The trial court found that Tulfo had in fact written and published the subject articles with reckless disregard of whether the same were false or not, as proven by the prosecution.  There was the finding that Tulfo failed to verify the information on which he based his writings, and that the defense presented no evidence to show that the accusations against Atty. So were true.  Tulfo cannot argue that because he did not know the subject, Atty. So, personally, there was no malice attendant in his articles.  The test laid down is the “reckless disregard” test, and Tulfo has failed to meet that test.

The fact that Tulfo published another article lambasting respondent Atty. So can be considered as further evidence of malice, as held in U.S. vs. Montalvo,[39] wherein publication after the commencement of an action was taken as further evidence of a malicious design to injure the victim. Tulfo did not relent nor did he pause to consider his actions, but went on to continue defaming respondent Atty. So.  This is a clear indication of his intent to malign Atty. So, no matter the cost, and is proof of malice. 
x x x."
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The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. - G.R. No. 161032

February 19, 2014, 5:50 pm
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"x x x.





Having discussed the issue of qualified privileged communication and the matter of the identity of the person referred to in the subject articles, there remains the petition of the editors and president ofRemate, the paper on which the subject articles appeared.

In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the editing or writing of the subject articles, and are thus not liable. 

The argument must fail.

The language of Art. 360 of the RPC is plain.  It lists the persons responsible for libel:
            Art. 360. Persons responsible.—Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.

            The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.


The claim that they had no participation does not shield them from liability.  The provision in the RPC does not provide absence of participation as a defense, but rather plainly and specifically states the responsibility of those involved in publishing newspapers and other periodicals.  It is not a matter of whether or not they conspired in preparing and publishing the subject articles, because the law simply so states that they are liable as they were the author.

Neither the publisher nor the editors can disclaim liability for libelous articles that appear on their paper by simply saying they had no participation in the preparation of the same.  They cannot say that Tulfo was all alone in the publication of Remate, on which the subject articles appeared, when they themselves clearly hold positions of authority in the newspaper, or in the case of Pichay, as the president in the publishing company.

As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility as a journalist, the other petitioners cannot simply say that they are not liable because they did not fulfill their responsibilities as editors and publishers.  An editor or manager of a newspaper, who has active charge and control of its management, conduct, and policy, generally is held to be equally liable with the owner for the publication therein of a libelous article.[40]  On the theory that it is the duty of the editor or manager to know and control the contents of the paper,[41] it is held that said person cannot evade responsibility by abandoning the duties to employees,[42] so that it is immaterial whether or not the editor or manager knew the contents of the publication.[43]  In Fermin v. People of the Philippines,[44]  the Court held that the publisher could not escape liability by claiming lack of participation in the preparation and publication of a libelous article.  The Court cited U.S. v. Ocampo, stating the rationale for holding the persons enumerated in Art. 360 of the RPC criminally liable, and it is worth reiterating:


According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof.  With regard to a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any connection with its publication are liable as publishers.

x x x x

In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of the manager or proprietor of a newspaper was discussed.  The court said, among other things (pp. 782, 783):

“The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent.  When a libel is published in a newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication.

“The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for whatever appears in his paper; and it should be no defense that the publication was made without his knowledge or consent, x x x.

“One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to servants or employees whom he selects and controls may be said to cause to be published what actually appears, and should be held responsible therefore, whether he was individually concerned in the publication or not, x x x.  Criminal responsibility for the acts of an agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the publisher; x x x.

“We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or consent of its proprietor or manager is no defense to a criminal prosecution against such proprietor or manager.”

In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in the criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have published the libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication until it was pointed out to him and that an apology and retraction were afterwards published in the same paper, gave him no ground for exception.  In this same case, Mr. Justice Colt, speaking for the court, said:

“It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to use reasonable caution in the conduct of his business that no libels be published.”  (Wharton’s Criminal Law, secs. 1627, 1649; 1 Bishop’s Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)

The above doctrine is also the doctrine established by the English courts.  In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was “clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants or agents for misconduct in the management of the paper.”

This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.

Lofft, an English author, in his work on Libel and Slander, said:

“An information for libel will lie against the publisher of a papers, although he did not know of its being put into the paper and stopped the sale as soon as he discovered it.”

In the case of People vs. Clay (86 Ill., 147) the court held that –

“A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing it.”[45]


Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel, so too must Cambri, Salao, Barlizo, and Pichay.

Though we find petitioners guilty of the crime charged, the punishment must still be tempered with justice.  Petitioners are to be punished for libel for the first time.  They did not apply for probation to avoid service of sentence possibly in the belief that they have not committed any crime. In Buatis, Jr. v. People,[46] the Court, in a criminal case for libel, removed the penalty of imprisonment and instead imposed a fine as penalty.   In Sazon v. Court of Appeals,[47] the accused was merely fined in lieu of the original penalty of imprisonment and fine.  Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly.  In light of this, considering the necessity of a free press balanced with the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with subsidiary imprisonment in case of insolvency, should suffice.[48]  Lastly, the responsibilities of the members of the press notwithstanding, the difficulties and hazards they encounter in their line of work must also be taken into consideration.
x x x."
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Proper Deposition Objections

February 26, 2014, 10:41 pm
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see - Proper Deposition Objections





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Improper deposition objections
  • Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is too far afield, though, a relevance objection may be warranted. The line is hard to draw here. It boils down to a judgment call on whether the question is likely to lead to admissible evidence.
  • Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example, if your client is asked “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. If you are taking the deposition, you can determine based on the answer whether you should take Jane’s deposition, and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial. Remember, the reason you can’t ask someone else what Jane said at trial is that you need to be able to cross examine Jane to determine her credibility. (There are, of course, exceptions that I won’t discuss here.)
  • Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence. For example, it is permissible to ask “If you had known X, how would you have behaved differently?” However, be careful here, as this could be a proper objection depending on the question. Do not let your client speculate and object if the question calls for speculation. You may want to let your client answer if she knows how she would have behaved if she had known X.
  • Calls for an opinion. Foundation does not need to be established to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion.Q: “Do you think that the brakes were in working order on the Toyota?”
    A: “No.”
    Q: “Why not?”
    A: “When I drove it 2 weeks before the accident they were acting funny.”
    The lawyer taking the deposition can obtain information that may not otherwise have been received in written discovery and the answers can lead to discoverable evidence.
  • Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections. The lawyer cannot say that she does not understand the question. It is up to the deponent to ask for clarification. “If you know” and “if you remember”are coaching objections. However, you may ask, “Who is she?” when the deponent uses the word “she” unclearly in a question. That is not speaking or coaching, because it does not suggest the answer. Objections must be stated succinctly in a non-argumentative and non-suggestive manner.
Do not let yourself get bullied by an opposing counsel who is making improper objections. If several improper objections are made, there are a few ways to respond. You can ask, for example, why the objections are being made, as they are not required for the record. Be prepared for that to lead to an argument.
If that discussion gets you nowhere, you may wish to tell the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so the objection no longer needs to be made. If neither of those things works, just try to tune out the objections and proceed with the deposition.
Inform the deponent that unless her lawyer instructs her not to answer, that she should answer the question. (There are rare instances in which a lawyer can properly instruct a deponent to refuse to answer.)
Proper deposition objections
  • Privilege. This is the big one. It must be made or it is waived. This covers anyprivilege, such as attorney-client and physician-client. Object if your client is asked what he said to his lawyer. Of course, the deposing lawyer can properly ask “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is also the one case in which you should instruct your client not to answer. If the opposing lawyer continues to attempt to invade the privilege, you can threaten to terminate the deposition. If the privilege questions continue, terminate the deposition.
  • Form of the question. This objection is usually asserted to make a clear record. Form questions fall in several categories. Some jurisdictions only require that the lawyer state a general “form” objection. Others require that the type of form objection be stated as well. Form questions are waived if they are not made during the deposition.
    • Compound. If the question is compound and the person answers yes, what portion of the question are they agreeing with? For example, if your client is asked “When you turned left were you in the turn lane and was your signal on and was the light green and how do you know”— object! Ask the lawyer to ask one question at a time.
    • Confusing. I know I stated above that it is improper to ask for clarification, but it depends. If the question is truly confusing, an objection may be proper.
    • Calls for speculation. A form objection should also be made to a question that calls for the witness to speculate. Be careful, though. Don’t suggest an answer, which would not be proper.
  • Mischaracterizes earlier testimony. This is also to make sure there is a clear record. For example, if the deponent earlier stated he was not sure of his speed, and was then asked: “So you testified earlier that you were speeding …” it is proper to object as mischaracterizing earlier testimony. The deponent said she did not know how fast she was going; she did not admit she was speeding.
  • Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than he gave earlier in the deposition. If you don’t make the objection and your client does provide differing information, your client loses credibility. And the testimony can be used for impeachment at trial. The opposing lawyer may not realize that he asked the question earlier, and making the objection can throw him off and make him doubt himself.
  • Calls for a legal conclusion. Deponents are there to testify about facts, not legal conclusions. If the deponent is a lawyer, it may be a proper question, depending on the circumstances. Otherwise, it’s not.
  • Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, describe the specific conduct that is objectionable for the record, and further state on the record that you will terminate the deposition if the behavior continues. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed or bullied. As with privilege, if the lawyer does not stop the harassment, terminate the deposition.
  • x x x."
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Community work to ease up jails - Manila Standard Today

March 7, 2014, 10:09 pm
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See - Community work to ease up jails - Manila Standard Today





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Las Piñas City Rep. Mark Villar on Friday filed a measure seeking to decongest jails by opening Community Work Camps in lieu of imprisonment.
In House Bill 3903, he proposed which provides work within a community as alternative to detainees serving sentences ranging from one day to six months and those with six months or less remaining to serve.
Villar said the life of a prisoner doing time can be very frustrating, unproductive, unhealthy or even harmful.
“More than serving the sentence, what is more punishing to the inmates is extreme overcrowding, which may pose danger to life and health,” he said.
Citing a 2010 report of the Philippine Statistical Authority National Statistical Coordination Board, Villar said there were 59,289 inmates under the Bureau of Jail Management and Penology.
Villar said 56,479 or 95.3 percent were detained and 2,810 or 4.7 percent were sentenced. At least 1,147 were held by the Philippine National Police on a temporary basis, an increase of 5 percent from 2009.
He said the ideal jail density per inmate on the average of these 423 BJMP jails with a total cell area of 50,351 square meters, is 4.7 square meters.
Villar said the national jail congestion rate, which is the number of extra inmates over the jail capacity in December 2010, was 446.1 percent. The total number of prisoners in the Bureau of Corrections penal institutions was 35,937.
Under the measure, Community Work Camps are created so that these individuals can take an active role in helping nurture the environment.
The bill also provides for a preparatory rehabilitation phase for prisoners before they rejoin society.
Community service shall include tree planting, building artificial reefs, and participating in farm projects demonstration or other livelihood projects. Depending on their good behavior and performance, a part of the sentence can be reduced.
The bill mandates the Department of Justice) to issue the rules and regulations of implementation in coordination with the Supreme Court and the Departments of Interior and Local Government, Agriculture, Environment and Natural Resources and National Defense.
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What Went Before: Fugitives Palparan, Reyes brothers, Ecleo, Lee | Inquirer News

March 7, 2014, 10:33 pm
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In August 2012, President Benigno Aquino III offered a reward of P2 million each for the arrest of high profile fugitives retired Army Maj. Gen. Jovito Palparan, former Palawan Gov. Joel Reyes and his brother, former Coron Mayor Mario Reyes, former Dinagat Island Rep. Ruben Ecleo Jr. and Globe Asiatique developer Delfin Lee.

On Aug. 28, 2013, the President announced a P10-million bounty for the arrest of Janet Lim-Napoles, alleged architect of the P10-billion pork barrel scam. Napoles surrendered to President Aquino on the same day the bounty was announced, but her brother Reynald “Jojo” Lim remains at large.

According to presidential spokesperson Edwin Lacierda, while Napoles’ P10-million bounty had been withdrawn following her surrender, the P5 million reward for Lim’s arrest still stands.

The Napoles siblings disappeared on Aug. 14, 2013, hours before the Makati City Regional Trial Court issued a warrant for their arrest in connection with the serious illegal detention of their cousin and former aide Benhur Luy. Luy blew the whistle on his employers’ alleged racket, which involved the alleged conversion of P10 billion in pork barrel funds into kickbacks, using dummy foundations set up by Napoles and the forged signatures of several officials.

Labeled “The Butcher” by political activists, Palparan went into hiding in December 2011 when he was ordered arrested by the regional trial court in Malolos, Bulacan province, in connection with the 2006 abduction of University of the Philippines students Sherlyn Cadapan and Karen Empeño.

The Reyes brothers disappeared in March 2012 after the regional trial court in Puerto Princesa City issued warrants for their arrest in connection with the murder of Palawan broadcaster and environmentalist Gerry Ortega.

Ecleo went into hiding after he was meted a 31-year jail sentence for graft by the Sandiganbayan in 2006.  In April 2012, a Cebu City court sentenced Ecleo to life imprisonment for the killing of his wife. He remains the object of a nationwide manhunt.
Lee, who had a standing arrest warrant issued by a Pampanga court in May 2012 for syndicated estafa, was arrested in a five-star hotel in Manila on March 6 this year.  Lee’s estafa charge stemmed from a  P7-billion housing loan scandal involving Globe Asiatique’s Xevera housing projects in Bacolor and Mabalacat towns in Pampanga. Inquirer Research

Source: Inquirer Archives


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Read more: http://newsinfo.inquirer.net/583369/what-went-before-fugitives-palparan-reyes-brothers-ecleo-lee#ixzz2vLmanmxx
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Can't understand the jargon in the Cybercrime Law?

March 7, 2014, 10:39 pm
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see - Can't understand the jargon in the Cybercrime Law?





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BY REYNALDO SANTOS JR
POSTED ON 03/01/2014 6:02 PM  | UPDATED 03/02/2014 8:48 AM
MANILA, Philippines – The Supreme Court ruled on February 18 to uphold the constitutionality of most provisions of Republic Act 10175 or the Cybercrime Prevention Act of 2012.
The SC ruled that the controversial provision on online libel is constitutional, but is subject to one condition: only the original author, not those who simply receive or react to the post, can be penalized.
To help readers understand the Cybercrime Law and the Supreme Court ruling on its constitutionality, Rappler will publish a series of "explainers" to help non-lawyers understand key points.
We start with this Q&A on the petitions filed, and the terminologies in the Supreme Court decision.
CHAINED NETIZEN. A protester demonstrates his interpretation of the effect of the Cybercrime Prevention Act. File photo by Hoang VuCHAINED NETIZEN. A protester demonstrates his interpretation of the effect of the Cybercrime Prevention Act. File photo by Hoang Vu
What is the aim of the cybercrime law?
The cybercrime law "aims to regulate access to and use of the cyberspace" and imposes penalties for violations enumerated under it.
In recognizing the wisdom of the law, the Supreme Court said: “The ill-motivated can use the cyberspace for committing theft by hacking..for illicit trafficking in sex or for exposing to pornography guileless children who have access to the internet.
How many petitions sought to invalidate the law?
Since President Benigno Aquino III signed the law, at least 15 petitions were sent to the Supreme Court to question the validity of the law.
How many provisions were questioned for their constitutionality?
A total of 21.
What issues were raised by the petitioners?
  • freedom of speech and expression
  • freedom of the press
  • creation of a "chilling and deterrent effect" on guaranteed freedoms
  • rights to due process
  • right to privacy and correspondence
  • legality of libel
  • vagueness and ambiguity of certain provisions
What provisions were struck down by the SC?
The Court declared unconstitutional the provisions that (1) penalize posting of spam messages, (2) authorize the collection and recording of traffic data in real-time, and (3) authorize the Department of Justice to restrict or block access to suspected computer data.
LEGALESE under the law
Petitioners claim that the provision on Illegal Access (under Cybercrime Offenses) fails to meet the strict scrutiny standardrequired of human rights laws. What does the phrase mean?
The SC says the strict scrutiny standard is "an American constitutional construct, useful in determining the constitutionality of laws that tend to target a class of things or persons."
It is also used to "assess the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights."
The law also identifies cyber-squatting as a cybercrime offense. What does the term mean?
Cyber-squatting is defined as the "acquisition of a domain name over the internet in bad faith to profit, mislead, destroy the reputation, and deprive others from registering the same." Petitioners claim that this provision violates the equal protection clause, but is deemed baseless by the Court.
Petitioners claim that cyber-squatting violates the equal protection clause. What is this clause all about?
This clause refers to Article 3, Section 1 of the 1987 Constitution, which states: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws."
Petitioners contend that the laws on libel should be considered unconstitutional, otherwise jurisprudence requiring actual malice could easily be overturned. What is "actual malice"?
The SC explained that there is "actual malice" when "an offender makes a defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not." Evidence must be sufficient to prove that the accused entertained serious doubts as to the truth of the statement he or she published. The Court also said that gross or extreme negligence is not sufficient to establish actual malice.
The Court voided the provision that penalizes aiding or abetting in committing the cybercrime law. How does SC define this term?
The SC explained that in current laws, "aiding or abetting" is an action that is essentially physical, and is susceptible to easy assessment as criminal in character. In cybercrime law, except for the original author of the assailed statement, likes and shares are just sentiments of readers and are not forms of "aiding or abetting." The SC added that the term constitutes a broad sweep that generates a chilling effect on those who express themselves online.
What does this one degree higher actually mean?
Under the Revised Penal Code, libel carries a penalty of prision correccional in its minimum (6 months and 1 day) and medium periods (2 years, 4 months and 1 day to 4 years and 2 months). Under the cybercrime law, the penalty for online libel “carries a 2-fold increase in the maximum penalty – from 4 years and 2 months to 8 years,” Chief Justice Maria Lourdes Sereno pointed out in her concurring and dissenting separate opinion.
Petitioners also attacked the provision on collecting traffic data. What does the term mean?
"Traffic data" refer only to the communication's origin, destination, route, time, data, size, duration, or type of underlying service. They exclude content or identities.
The SC declared unconstitutional the section that penalizes posting of unsolicited commercial communications. What does the term mean?
These are simply "spam messages" like unexpected ads by mail. They seek to advertise, sell, or offer for sale products and services.
In discussing the issue of privacy, the SC mentioned decisional privacy and informational privacy. What's the difference between the two?
Decisional privacy refers to "the right to independence in making certain important decisions," while informational privacy refers to the interest in "avoiding disclosure of personal matters."
The SC further explained that informational privacy, which petitioners want to protect, has 2 aspects: (1) the right not to have private information disclosed, and (2) the right to live freely without surveillance and intrusion.
The Court said it uses a two-fold test – a subjective and objective test – in determining entitlement to the right to privacy. What is the difference between these two tests?
In a subjective test, the person claiming the right to privacy "must have an actual or legitimate expectation of privacy over a certain matter."
In an objective test, the person's expectation of privacy "must be one that society is prepared to accept as objectively reasonable."
The SC used the concept of zones of privacy in discussing the right to privacy. What does this term mean?
The Court described zones of privacy as a field where "any form of intrusion is impermissible unless excused by law and in accordance with customary legal process."
The zones of privacy are created by two constitutional guarantees: (1) the right against unreasonable searches and seizures, and (2) the right to privacy of communication and correspondence. – Rappler.com
Do you have any questions regarding the provisions in the Cybercrime Law? Do you wish to clarify parts of the Supreme Court's ruling on the law? Tweet your questions using the hashtag #cyberlaw to @rapplerdotcom, or email them to research@rappler.com.
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