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Tax cut proposals Filipino workers need.

September 14, 2015, 11:40 pm
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See - PNoy rejection of tax cut proposals hurts workers who help build economy - TUCP-Nagkaisa



"x x x.

The labor group Trade Union Congress of the Philippines-Nagkaisa (TUCP-Nagkaisa) balked at the statement of President Benigno Aquino III rejecting proposals in Congress to cut the income tax rates of workers.

“We resent President Aquino’s outright rejection of proposed legislative measures aimed at reducing the very oppressive existing income tax," TUCP-Nagkaisa spokesperson Alan Tanjusay said in a statement.

"We were expecting that he the least he would do is to revise the figure into a compromise, if not, phased tax cut. But to rather shoot down the entire measure outright, President Aquino has permanently sealed further the fate of workers in the hopeless dungeon,” he added.

The group said that the President has also turned down several proposals that would give relief to ordinary workers from the rising prices of basic goods and services, including the Security of Tenure bill and proposals to make the cost of electricity affordable to workers.

The chief executive also thumbed down a two-month unemployment insurance to help workers who lost their jobs cope while looking for employment.

“He has not provided any relief for workers who helped build a competitive economy under his administration. How unfortunate can we get from a President we thought who could give back. If this is the legacy that he intends Filipino workers remembers him by, so be it,” Tanjusay said.

As proponents of the bills to cut the income tax rate of taxpayers expressed optimism that the measure would hurdle Congress, President Aquino indicated he was closing the door to it.

He said the options offered to fill the revenue gap will hurt more people across all classes, defeating the purpose of "progressive" taxation.

For one, he said, the proposal to make up for the expected revenue loss (some estimates put this at P30 billion), by increasing the value added tax on petroleum products, will impact prices and hurt everyone.

TUCP-Nagkaisa is a huge formation of workers from both the moderate and militant sides.

x x x."
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Lawmakers seek repeal of memo allowing soldiers in schools

September 15, 2015, 12:26 am
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See - Lawmakers seek repeal of memo allowing soldiers in schools



"x x x.

"The Department of Education strongly condemns these alleged incursions of schools. Once it came to our attention, we immediately brought it to the proper investigating body," Luistro said.

The policy being referred to by Ilagan was DepEd Memorandum No. 221 on the Guidelines on the Protection of Children During Armed Conflict, issued on December 13, 2013.

Signed by Secretary Luistro, the issuance allowed the Armed Forces of the Philippines (AFP) to conduct "civil-military" activities "inside or within a school or a hospital."

Under the memo, Luistro said, the AFP activities will be governed by its own guidelines dated 15 July 2013.

The school principals receive written requests for the conduct of AFP activities, and then forward them to the DepEd division office for approval. After the activity, the school principal is to submit a report to the division office.

The AFP Guidelines indicated that the activities were needed "to prevent" the occurrence of the Grave Violations Against Children During Armed Conflict pursuant to and in compliance with the United Nations Security Council Resolution 1612 and 1882, more specifically the violations known as Attacks on Schools and Hospitals.

The main intent of the above policies/guidelines was "to prevent/ bring to unnecessary risk and/or endanger all children, teachers, medical/dental professionals, health workers, and/or employees/workers of the school and hospital concerned, and the school or hospital itself."





x x x.
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The registered owner is primarily responsible for the damage caused to the vehicle of the plaintiff-appellee, but the said registered owner has the right to be indemnified by the real or actual owner of the amount that he may be required to pay as damage

September 15, 2015, 2:14 am
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CONRADO AGUILAR, SR. VS. COMMERCIAL SAVINGS BANK AND FERDINAND BORJA, G.R. No. 128705, June 29, 2001. 



(THE LAWYER'S POST).

 

“x x x,

 “In BA Finance Corporation vs. Court of Appeals, 215 SCRA 715, we had already held that the registered owner of any vehicle, even if not for public service, is primarily responsible to third persons for deaths, injuries and damages it caused.  This is true even if the vehicle is leased to third persons. In that case, petitioner’s Isuzu ten-wheeler truck driven by an employee of a certain Lino Castro met an accident. Neither the driver nor Lino Castro was connected to petitioner, for at the time of the incident, the truck was on lease to Rock Component Philippines, Inc.  The Court held petitioner liable as the truck’s registered owner, despite the absence of employer-employee relationship between petitioner and the driver.  Though petitioner in said case had a right of reimbursement against Rock Component for the total amount of its liability, the Court per Melo, .. made clear petitioner remained legally responsible to the victim of vehicular mishap on the basis of jurisprudential dogmas.


As early as Erezo vs. Jepte, 102 Phil. 103, the Court, through Labrador, had synthesized the rationale for holding the registered owner of a vehicle directly liable.  There we said:


Registration is required not to make said registration the operative act by which ownership in vehicles is transferred, as in land registration cases, because the administrative proceeding of registration does not bear any essential relation to the contract of sale between the parties (Chinchilla vs. Rafael and Verdaguer, 39 Phil. 888), but to permit the use and operation of the vehicle upon any public highway (section 5 [a], Act No. 3992, as amended.)  The main aim of motor vehicle registration is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can be fixed on a definite individual, the registered owner.  Instances are numerous where vehicles running on public highways caused accidents or injuries to pedestrians or other vehicles without positive identification of the owner or drivers, or with very scant means of identification. It is to forestall these circumstances, so inconvenient or prejudicial to the public, that the motor vehicle registration is primarily ordained, in the interest of the determination of persons responsible for damages or injuries caused on public highways.


“One of the principal purposes of motor vehicles legislation is identification of the vehicle and of the operator, in case of accident; and another is that the knowledge that means of detection are always available may act as a deterrent from lax observance of the law and of the rules of conservative and safe operation. Whatever purpose there may be in these statutes, it is subordinate at the last to the primary purpose of rendering it certain that the violator of the law or of the rules of safety shall not escape because of lack of means to discover him.’  The purpose of the statute is thwarted, and the displayed number becomes a `snare and delusion,’ if courts would entertain such defenses as that put forward by appellee in this case.  No responsible person or corporation could be held liable for the most outrageous acts of negligence, if they should be allowed to place a `middleman’ between them and the public, and escape liability by the manner in which they recompense their servants.”  (King vs. Brenham Automobile Co., 145 S.W. 278, 279.)


With the above policy in mind, the question that defendant-appellant poses is: should not the registered owner be allowed at the trial to prove who the actual and real owner is, and in accordance with such proof escape or evade responsibility and lay the same on the person actually owning the vehicle?  We hold with the trial court that the law does not allow him to do so; the law, with its aim and policy in mind, does not relieve him directly of the responsibility that the law fixes and places upon him as an incident or consequence of registration.  Were a registered owner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who possesses no property with which to respond financially for the damage or injury done.  A victim of recklessness on the public highways is usually without means to discover or identify the person actually causing the injury or damage. He has no means other than by a recourse to the registration in the Motor Vehicles Office to determine who is the owner.  The protection that the law aims to extend to him would become illusory were the registered owner given the opportunity to escape liability by disproving his ownership.  If the policy of the law is to be enforced and carried out, the registered owner should not be allowed to prove the contrary to the prejudice of the person injured, that is, to prove that a third person or another has become the owner, so that he may thereby be relieved of the responsibility to the injured person.


The above policy and application of the law may appear quite harsh and would seem to conflict with truth and justice.  We do not think it is so. A registered owner who has already sold or transferred a vehicle has the recourse to a third-party complaint, in the same action brought against him to recover for the damage or injury done, against the vendee or transferee of the vehicle.  The inconvenience of the suit is no justification for relieving him of liability; said inconvenience is the price he pays for failure to comply with the registration that the law demands and requires.


In synthesis, we hold that the registered owner, the defendant-appellant herein, is primarily responsible for the damage caused to the vehicle of the plaintiff-appellee, but he (defendant-appellant) has a right to be indemnified by the real or actual owner of the amount that he may be required to pay as damage for the injury caused to the plaintiff-appellant.[1]


The rationale well postulated in Erezo applies in the present case. Thus far no change in jurisprudence has been brought to our attention.  In our view, respondent bank, as the registered owner of the vehicle, is primarily liable for Aguilar, Jr.’s death.  The Court of Appeals erred when it concluded that the bank was not liable simply because (a) petitioner did not prove that Borja was acting as the bank’s vice president at the time of the accident; and (b) Borja had, according to respondent bank, already bought the car at the time of the mishap.  For as long as the respondent bank remained the registered owner of the car involved in the vehicular accident, it could not escape primary liability for the death of petitioner’s son.


X x x.”


 [1] Erezo vs. Jepte, 102 Phil. 103, 108-110 (1957).
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Coconut levy cases; SC junks UCPB, Cocolife claims on SMC shares | mb.com.ph | Philippine News

September 15, 2015, 11:26 am
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"x x x.

The Supreme Court has dismissed the claims of the United Coconut Planters Bank (UCPB) and United Coconut Planters Life Assurance Corporation (Cocolife) over the estimated P60-billion worth of shares in San Miguel Corporation (SMC) that were acquired through coconut levy and registered in the names of the Coconut Industry Investment Fund (CIIF) and its holding companies.

In a unanimous decision written by Justice Martin S. Villarama Jr., the SC ruled in favor of the Presidential Commission on Good Government (PCGG) which challenged the orders of the Makati City regional trial court (RTC) in favor of UCPB and Cocolife.

In April and May 2013, RTC Judge Winlove Dumayas denied the pleas of the PCGG to dismiss the Dec. 28, 2012 joint petitions for declaratory relief filed by UCPB and Cocolife asserting their rights over the SMC shares. With the denial, PCGG elevated the issue before the SC.

Earlier in January 2012, the SC had affirmed a Sandiganbayan decision that reconveyed to the government the 24 percent block of SMC shares or 753.8 million shares acquired through coconut levy and registered in the names of the CIIF and its holding companies.


The decision specifically stated that the proceeds from the 753.8 million SMC shares should be used for the benefit of the country’s coconut industry and its farmers.

Also on Sept. 17, 2009, the SC had ordered the conversion of the 24 percent SMC shares in the names of CIIF and its companies from common shares to preferred shares.


The conversion, the SC said, was necessary to preserve the value of the 753,848,312 sequestered CIIF SMC common shares in light of the worldwide economic crisis that had adversely affected the country’s banks and financial institutions.

In 1986, the 24 percent SMC shares in the names of CIIF and its holding companies was ordered sequestered by the PCGG on suspicion that the shares were illegally acquired by the associates of the late President Ferdinand Marcos.


In October last year, Solicitor General Florin Hilbay asked the SC to execute its 2012 decision on the SMC shares through the issuance of an entry of judgment.

Hilbay said the entry of judgment in a case decided by the SC would pave the way for the execution of the decision.


He said the government’s ownership over the more than 753.8 million SMC Series 1 preferred shares has been final since September 4, 2014.

In granting the PCGG petition against the the Makati City RTC orders, the SC said:


“It is an important fundamental principle in our judicial system that every litigation must come to an end. Litigation must end and terminate sometime and somewhere, and it is essential to an effective and efficient administration of justice that, once a judgment has become final, the winning party be, not through a mere subterfuge, deprived of the fruits of the verdict.

“Adherence to the principle impacts upon the lives of about three million poor farmers who have long waited to benefit from the outcome of the 27-year battle for the judicial recovery of assets acquired through illegal conversion of the coconut levies collected during the Marcos regime into private funds.”


The SC said the trial court has no jurisdiction to hear and resolve suits involving sequestered coco levy assets and coco levy funds.

It said that under Section 4 (c) of Presidential Decree 1606 (the law that created the Sandiganbayan) as amended by Republic Act No. 7975 and Republic Act No. 8249, the jurisdiction of the Sandiganbayan includes suits for recovery of ill-gotten wealth and related cases.


“Respondents’ assertion that the subject matter of their petitions for declaratory relief is different due to private funds used in buying shares in UCPB and CIIF oil mills is but a feeble attempt to create an exception to the Sandiganbayan’s exclusive jurisdiction,” it stressed.

At the same time, the SC said that the petitions before the trial court should be dismissed under the doctrine of res judicata which provides that “a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies and constitutes an absolute bar to subsequent actions involving the claim, demand or cause of action.”


It pointed out that the issue of ownership of the sequestered CIIF companies and CIIF SMC block of shares was directly resolved by the Sandiganbayan in 2004 and was affirmed by the SC in its January 2012 decision.

It also said that in another SC decision in November 2012, the SC declared as “conclusively owned” by the government the 7.2 percent of the outstanding shares of stocks of the UCPB in the name of Eduardo M. Cojuangco Jr. and should be used for the benefit of the country’s coconut farmers.


“Having resolved that subject matter jurisdiction pertains to the Sandiganbayan and not the RTC, and that the petitions for declaratory relief are barred by our Jan. 24, 2012 decision which settled with finality the issue of ownership of the CIIF oil mills, the 14 holding companies and CIIF SMC block of shares, we deem it unnecessary to address the other issues presented,” the SC ruled.



The SC has yet to resolve its temporary restraining order (TRO) issued more than two months ago against the implementation of two Executive Orders (EOs) issued by President Aquino on the privatization, reconveyance to the government, and utilization of the P73.4-billion coconut levy funds.


Stopped by the SC was the implementation of EO Nos. 179 and 180 on a petition filed by the Confederation of Coconut Farmers Organizations of the Philippines, Inc. (CCFOP).

EO 179 requires the inventory and privatization, and reconveyance in favor of the government of all coconut levy assets, including, but not limited to, the shares of stock in the United Coconut Planters Bank (UCPB), Coconut Industry Investment Fund (CIIF) Companies and CIIF Holding Companies and the 5,500,000 San Miguel Corporation (SMC) shares registered in the name of the Presidential Commission on Good Government (PCGG) as arbitration fee, within 60 days from its effectivity.


The EO also directed that all money and funds constituting the coconut levy or accruing from the coco levy assets should be deposited to a Special Account in the General Fund for Coco Levies.

EO 180, on the other hand, ordered the immediate transfer and reconveyance of coco levy assets to the government and its utilization after the approval by President Aquino of the “Integrated Coconut Industry Roadmap and the Coconut Roadmap for Coco Levy.”


President Aquino and PCGG Acting Commissioner Richard Roger Amurao have been asked to comment on the petition filed by CCFOP.

In its petition, CCFOP told the SC that the enforcement of the two EOs would result in the plunder of the multi-billion-peso coconut levy funds that were collected from farmers for every kilo of copra sold in the market.


It said the EOs violated the 2012 SC ruling which held that the coco levy funds “are owned by the government to be used only for the benefit of all coconut farmers and for the development of the coconut industry.”

The petition pointed out that while CCFOP does not object to inventory of all coco-levy assets and investments, the government should not hastily privatize them since it is merely the trust owner of the assets.

x x x."


Read more at http://www.mb.com.ph/sc-junks-ucpb-cocolife-claims-on-smc-shares/#4uxVASDjQZ9JZp1h.99
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Tax administration and the paradigm of non-retroactivity of tax issuances

September 15, 2015, 5:12 pm
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"x x x.

Just like any other power vested by law, this power to interpret tax laws is not absolute. It is subject to limitations that ensure it is properly exercised and implemented, thus safeguarding taxpayers from the abuses by the BIR against the right of taxpayers. This is the limitation on non-retroactivity of tax issuances which was highlighted by the Court of Tax Appeals (CTA) in its very recent case of Commissioner of Internal Revenue (CIR) vs. COL Financing Group, Inc., CTA EB Case No. 1187, June 30, 2015.

In this case, the taxpayer COL Financing Group, Inc. filed its income tax return for the first three quarters of the taxable year 2009 using the itemized method of deduction for claiming its expenses. At the time of its filing, RR No. 16-2008 allows the taxpayer to use either the Itemized or Optional Standard Deduction (OSD) method, but the option to choose the method of deduction shall be determined in its annual ITR.

However, on Feb. 24 and 26, 2010, the BIR issued RR No. 02-2010 and RMC 16-10, respectively, which now provides the method of deduction shall be determined in the taxpayer’s first quarterly ITR instead of the annual ITR, and that this rule shall be applicable for taxable year 2009.

Despite this new regulation, COL filed its annual ITR on April 12, 2010 using the OSD. It, however, paid under protest, an additional income tax under that would have been due had it used the itemized deduction. It then filed an application for refund with the BIR on the excess income tax paid. 

In arriving at a decision to allow a refund to COL, the CTA in an en banc decision applied the principle of non-retroactivity of laws. This principle of law prohibits the application of a retrospective law, which in the legal sense, is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect of transactions or considerations already past. The court explained that when COL filed its first 3 quarterly ITRs for 2009, it was with the belief that it can still change its method of deduction for its annual ITR. With the issuance of RR 02-2010, it had lost this option. It then ruled that the issuance of RR No. 02-2010 should not be given retroactive application for being prejudicial to the rights of the taxpayers. 

The Court emphasized the NIRC itself prohibits retroactive rulings under Section 246 stating that any revocation, modification or reversal of any of the rules and regulations shall not be given retroactive application, if prejudicial to the taxpayers. This rule, however, is subject to three exceptions: (a) If the taxpayer deliberately misstates or omits material facts from his return or any document required by the BIR; (b) If the facts subsequently gathered by the BIR are materially different from the facts on which the ruling is based; or (c) If the taxpayer acted in bad faith.

Since there was no showing by the BIR that there exist any of the exceptions enumerated in Section 246 of the NIRC against the taxpayer, the Court ruled RR No.02-2010 cannot be given retroactive application.

With this principle of non-retroactivity of laws, taxpayers can resort to this principle in those instances where they believe that issuances by the BIR would prejudice their rights as a taxpayer.

* * *

Glenn D. delos Santos is a supervisor from the tax group of R.G. Manabat & Co. (RGM&Co.), the Philippine member firm of KPMG International.

This article is for general information purposes only and should not be considered as professional advice to a specific issue or entity.

The views and opinions expressed herein are those of the author and do not necessarily represent the views and opinions of KPMG International or RGM&Co. For comments or inquiries, please email ph-inquiry@kpmg.com or rgmanabat@kpmg.com.

For more information on KPMG in the Philippines, you may visit www.kpmg.com.ph.

x x x."

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Gov’t to hurdle another legal battle on coco levy fund—de Lima | Inquirer News

September 16, 2015, 7:40 am
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"x x x.

De Lima is referring to the petition filed by the Conferederation of Coconut Farmers Organization of the Philippines (CCFOP) which seeks to stop the government’s move to utilize the coco levy funds.

The CCFOP asked the high court to nullify Executive Order Numbers 179 and 180.

EO 179 requires the (1) inventory and privatization and (2) reconveyance and in favor of the government of all coconut levy assets, including but not limited to the shares of stock in the United Coconut Planters Bank (UCPB), Coconut Industry Investment Fund (CIIF) Companies and CIIF Holding Companies as well as the 5,500,000 San Miguel Corporation (SMC) shares registered in the name of the Presidential Commission on Good Government (PCGG).

EO180, on the other hand, ordered the immediate transfer and reconveyance of the coconut levy assets to the government and use it for the Integrated Coconut Industry Roadmap and the Roadmap for Coco Levy.

The high court, last June 30, issued a restraining order against the Executive Orders.

“One more legal challenge from these private interest groups is the case filed by the so-called Confederation of Coconut Farmers Organization of the Philippines (CCFOP) against EOs 179 and 180. The government and the public should be vigilant that this case also does not succeed in reversing previous Supreme Court rulings declaring the coco levy as public funds,” de Lima said in a text message.

“We must see these cases for what they are, as last ditch feeble attempts by powerful interest groups to once again rob our coconut farmers of what has already been duly declared to be theirs by the Supreme Court. Our coconut farmers have been robbed long enough. It is now time for them to truly benefit from their decades of toil through scholarships, trainings, equipment and other support services under a PCA (Philippine Coconut Authority ) roadmap for the utilization of the coco levy fund,” de Lima said.

Meanwhile, she lauded the high court for dismissing the bid of UCPB and the United Coconut Planters Life Assurance Corporation (Cocolife) to claim portion of the 753.8 million shares of stocks of SMC valued at about P70-billion.


x x x."





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LIBEL; elements of; accused acquitted; victim not clearly identified in the libelous article.

September 16, 2015, 9:10 am
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OGIE DIAZ vs. PEOPLE OF THE PHILIPPINES, G.R. No. 159787, May 25, 2007

“x x x.

On May 12, 1998, the trial court rendered its judgment convicting petitioner and Pichel of the crime charged. The dispositive portion reads:

WHEREFORE, in view of the above discussion and findings, the Court finds both accused Manny Pichel and Ogie Diaz guilty beyond reasonable doubt of the crime of libel, defined in Article 353 and penalized under Article 355 of the Revised Penal Code, as amended, and hereby sentences each of them to suffer an indeterminate penalty of SIX (6) MONTHS AND ONE (1) DAY as minimum to FOUR (4) YEARS AND TWO (2) MONTHS of prision correcional in its Minimum and Medium Periods,as maximum and to pay a fine of P3,000.00 each.
SO ORDERED.

On appeal, the Court of Appeals, in its Decision, sustained the conviction of petitioner but acquitted Pichel.

X  x x.

Hence, the instant petition for review on certiorari.

The sole issue for our resolution is whether the subject article is libelous.
Article 353 of the Revised Penal Code, as amended, provides:

ART. 353. Definition of libel.– A libel is a public and malicious imputation of a crime, or of a vice, or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

This provision should be read in relation with Article 355 of the same Code which states:

ART. 355. Libel by means of writings or similar means. – A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

Thus, for an imputation to be libelous, the following requisites must be present: (a) it must be defamatory; (b) it must be malicious; (c) it must be given publicity; and (d) the victim must be identifiable. (Novicio v. Aggabao, G.R. No. 141332, December 11, 2003, 418 SCRA 138, 143, citing Alonzo v. Court of Appeals, 241 SCRA 51 (1995). Absent one of these elements, a case for libel will not prosper.

We find the first element present. In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain, natural, and ordinary meaning as they would naturally be understood by the persons reading them, unless it appears that they were used and understood in another sense. (Novicio v. Aggabao, id.). In the instant case, the article in question details the sexual activities of a certain "Miss S" and one "Philip Henson" who had a romantic liaison. In their ordinary sense, the words used cast aspersion upon the character, integrity, and reputation of "Miss S." The words convey that "Miss S" is a sexual libertine with unusually wanton proclivities in the bedroom. In a society such as ours, where modesty is still highly prized among young ladies, the behavior attributed to "Miss S" by the article in question had besmirched both her character and reputation.

As to the element of malice, we find that since on its face the article is defamatory, there is a presumption that the offender acted with malice. In Article 354 of the same Code, every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. (Alonzo v. Court of Appeals, supra.). We agree with the Court of Appeals that there was neither good reason nor motive why the subject article was written except to embarrass "Miss S" and injure her reputation.
On the element of publication, there can be no question that the article appeared in the December 28, 1991 issue ofBandera, a local tabloid.

The last element of libel is that the victim is identified or identifiable from the contents of the libelous article. In order to maintain a libel suit, it is essential that the victim be identifiable, although it is not necessary that the person be named. It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such person could and did understand that he was the person referred to. (Borjal v. Court of Appeals, G.R. No. 126466, January 14, 1999, 301 SCRA 1; Corpus v. Cuaderno, Sr., No. L-16969, April 30, 1966, 16 SCRA 807; People v. Monton, No. L-16772, November 30, 1962, 6 SCRA 801).  Kunkle v. Cablenews-American and Lyons, 42 Phil. 757 (1922), laid the rule that this requirement is complied with where a third person recognized or could identify the party vilified in the article.

The libelous article, while referring to "Miss S," does not give a sufficient description or other indications which identify "Miss S." In short, the article fails to show that "Miss S" and Florinda Bagay are one and the same person.

Although the article is libelous, we find that Florinda Bagay could not have been the person defamed therein. In Uy Tioco v. Yang Shu Wen, 32 Phil. 624 (1915), we held that where the requirement for an identified or identifiable victim has not been complied with, the case for libel must be dismissed.

X x x.”


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Press freedom must be responsible

September 16, 2015, 10:31 am
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ERWIN TULFO  Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T. SO, G.R. No. 161032;  and the accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008


“x x x.

The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive to protect and respect the fourth estate, the freedom it enjoys must be balanced with responsibility. There is a fine line between freedom of expression and libel, and it falls on the courts to determine whether or not that line has been crossed.

X x x.”


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Press freedom and the corollary duty to publish responsibly.

September 16, 2015, 10:34 am
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ERWIN TULFO  Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T. SO, G.R. No. 161032;  and the accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008

“x x x. 

The press wields enormous power. Through its widespread reach and the information it imparts, it can mold and shape thoughts and opinions of the people. It can turn the tide of public opinion for or against someone, it can build up heroes or create villains.

It is in the interest of society to have a free press, to have liberal discussion and dissemination of ideas, and to encourage people to engage in healthy debate. It is through this that society can progress and develop.

Those who would publish under the aegis of freedom of the press must also acknowledge the corollary duty to publish responsibly. To show that they have exercised their freedom responsibly, they must go beyond merely relying on unfounded rumors or shadowy anonymous sources. There must be further investigation conducted, some shred of proof found to support allegations of misconduct or even criminal activity. It is in fact too easy for journalists to destroy the reputation and honor of public officials, if they are not required to make the slightest effort to verify their accusations. Journalists are supposed to be reporters of facts, not fiction, and must be able to back up their stories with solid research. The power of the press and the corresponding duty to exercise that power judiciously cannot be understated.

But even with the need for a free press, the necessity that it be free does not mean that it be totally unfettered. It is still acknowledged that the freedom can be abused, and for the abuse of the freedom, there must be a corresponding sanction. It falls on the press to wield such enormous power responsibly. It may be a clich that the pen is mightier than the sword, but in this particular case, the lesson to be learned is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but always guided by conscience and careful thought.

A robust and independently free press is doubtless one of the most effective checks on government power and abuses. Hence, it behooves government functionaries to respect the value of openness and refrain from concealing from media corruption and other anomalous practices occurring within their backyard. On the other hand, public officials also deserve respect and protection against false innuendoes and unfounded accusation of official wrongdoing from an abusive press. As it were, the law and jurisprudence on libel heavily tilt in favor of press freedom. The common but most unkind perception is that government institutions and their officers and employees are fair game to official and personal attacks and even ridicule. And the practice on the ground is just as disconcerting. Reports and accusation of official misconduct often times merit front page or primetime treatment, while defenses set up, retraction issued, or acquittal rendered get no more, if ever, perfunctory coverage. The unfairness needs no belaboring. The balm of clear conscience is sometimes not enough.
Perhaps lost in the traditional press freedom versus government impasse is the fact that a maliciously false imputation of corruption and dishonesty against a public official, as here, leaves a stigmatizing mark not only on the person but also the office to which he belongs. In the ultimate analysis, public service also unduly suffers.

X x x.”




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Press freedom; Journalists Code of Ethics imposes the duty to air the other side, to correct substantive errors, and to presume persons accused of crimes to be innocent until proven otherwise.

September 16, 2015, 10:41 am
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 ERWIN TULFO  Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T. SO, G.R. No. 161032;  and the accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008

X x x.

In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of Appeals, G.R. No. 126466, January 14, 1999, 301 SCRA 1. In essence, he argues that the subject articles fall under qualifiedly privileged communication under Borjal and that the presumption of malice in Art. 354 of the RPC does not apply. He argues that it is the burden of the prosecution to prove malice in fact.

X x x.

There is no question of the status of Atty. So as a public official, who served as the OIC of the Bureau of Customs Intelligence and Investigation Service at the Ninoy Aquino International Airport (NAIA) at the time of the printing of the allegedly libelous articles. Likewise, it cannot be refuted that the goings-on at the Bureau of Customs, a government agency, are matters of public interest. It is now a matter of establishing whether the articles of Tulfo are protected as qualified privileged communication or are defamatory and written with malice, for which he would be liable.

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 Journalists Code of Ethics adopted by the National Union of Journalists of the Philippines shows 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 Journalists 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. He accused Atty. So of stealing from the government with his alleged corrupt activities. And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].
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 South Harbor, 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. Sos 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 Tulfos 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. (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. (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. Tulfos 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. (Brillante v. Court of Appeals, G.R. Nos. 118757 & 121571, October 19, 2004, 440 SCRA 541, 574).  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, A.M. No. 93-2-037 SC, April 6, 1995, 3 SCRA 299, 332:

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.

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 the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona 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 the Philippines.

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 proceedings which are not of confidential nature, or of  a statement, report or speech delivered in said proceedings, or of any other actperformed 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. 
(2 Reyes, Luis B., THE REVISED PENAL CODE 858 (13th ed., 1993).

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 Tulfos 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, Tulfos articles do not meet the standard. Fair is defined as having the qualities of impartiality and honesty. [BLACKS LAW DICTIONARY 595 (6th ed., 1990)]. True is defined as conformable to fact; correct; exact; actual; genuine; honest. 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,  376 US 254, 11 L ed. 2nd 686, and reiterated in Flor v. People, G.R. No. 139987, March 31, 2005, 454 SCRA 440, 456, 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. 
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, 29 Phil. 595 (1915), 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.
Leaving the discussion of qualified privileged communication, Tulfo also argues that the lower court misappreciated the evidence presented as to the identity of the complainant: that Tulfo wrote about Atty. Ding So, an official of the Bureau of Customs who worked at the South Harbor, whereas the complainant was Atty. Carlos So who worked at the NAIA. He claims that there has arisen a cloud of doubt as to the identity of the real party referred to in the articles.
This argument is patently without merit.

The prosecution was able to present the testimonies of two other witnesses who identified Atty. So from Tulfos articles. There is the certification that there is only one Atty. So in the Bureau of Customs. And most damning to Tulfos case is the last column he wrote on the matter, referring to the libel suit against him by Atty. So of the Bureau of Customs. In this article, Tulfo launched further attacks against Atty. So, stating that the libel case was due to the exposs Tulfo had written on the corrupt acts committed by Atty. So in the Bureau of Customs. This last article is an admission on the part of Tulfo that Atty. So was in fact the target of his attacks. He cannot now point to a putative Atty. Ding So at South Harbor, or someone else using the name of Atty. So as the real subject of his attacks, when he did not investigate the existence or non-existence of an Atty. So at South Harbor, nor investigate the alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo cannot say that there is doubt as to the identity of the Atty. So referred to in his articles, when all the evidence points to one Atty. So, the complainant in the present case.

X x x.”




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Libel; 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 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.

September 16, 2015, 10:52 am
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ERWIN TULFO  Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T. SO, G.R. No. 161032;  and the accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008


“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 of Remate, 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. (Smith v. Utley, 92 Wis 133, 65 NW 744; Faulkner v. Martin, 133 NJL 605, 45 A2d 596; World Pub. Co. v. Minahan, 70 Okla 107, 173 P 815).
On the theory that it is the duty of the editor or manager to know and control the contents of the paper, it is held that said person cannot evade responsibility by abandoning the duties to employees, so that it is immaterial whether or not the editor or manager knew the contents of the publication.(Faulkner, supra; Goudy v. Dayron Newspapers, Inc., 14 Ohio App 2d 207, 43 Ohio Ops 2d 444, 237 NE2d 909).

In Fermin v. People of the Philippines,G.R. No. 157643, March 20, 2008, 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. (Whartons Criminal Law, secs. 1627, 1649; 1 Bishops 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.[U.S. v. Ocampo, 18 Phil. 1, 50-52 (1910)].


X x x.”






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Penalty for libel limited to fine; damages awarded.

September 16, 2015, 10:56 am
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ERWIN TULFO  Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T. SO, G.R. No. 161032;  and the accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008

“x x x.

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,G.R. No. 1409, March , 2006, 485 SCRA 275, 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,G.R. No. 120715, March 29, 1996, 255 SCRA 692, 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.(Administrative Circular No. 08-2008. See Fermin v. People, G.R. No. 157643, March 28, 2008). 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.

The award of damages by the lower court must be modified. Art. 2199 of the Civil Code provides, Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. There was no showing of any pecuniary loss suffered by the complainant Atty. So. Without proof of actual loss that can be measured, the award of actual damages cannot stand.

In Del Mundo v. Court of Appeals,   G.R. No. 1045676, January 20, 1995, 0 SCRA 348, 356-357, it was held, as regards actual and moral damages:

A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. We have emphasized that these damages cannot be presumed, and courts, in making an award must point out specific facts which could afford a basis for measuring whatever compensatory or actual damages are borne.

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These damages must be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate the claimant for the injury suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages may be awarded, the amount of indemnity being left to the sound discretion of the court, it is imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have sprung from any of the cases expressed in Article 2219 and Article 2220 of the Civil Code. A causal relation, in fine, must exist between the act or omission referred to in the Code which underlies, or gives rise to, the case or proceeding on the one hand, and the resulting injury, on the other hand; i.e. the first must be the proximate cause and the latter the direct consequence thereof.

It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the award of moral damages. Justification for the award of moral damages is found in Art. 2219(7) of the Civil Code, which states that moral damages may be recovered in cases of libel, slander, or any other form of defamation. As the cases involved are criminal cases of libel, they fall squarely within the ambit of Art. 2219(7).

Moral damages can be awarded even in the absence of actual or compensatory damages. The fact that no actual or compensatory damage was proven before the trial court does not adversely affect the offended partys right to recover moral damages.(Patricio v. Leviste, G.R. No. 51832, April 26, 1989, 172 SCRA 774, 781).

 X x x.”



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Libel; moral damages awarded.

September 16, 2015, 11:01 am
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ERWIN TULFO  Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T. SO, G.R. No. 161032;  and the accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008

“x x x.

And while on the subject of moral damages, it may not be amiss to state at this juncture that Tulfos libelous articles are abhorrent not only because of its vilifying and demeaning effect on Atty. So himself, but also because of their impact on members of his family, especially on the children and possibly even the childrens children.

The Court can perhaps take judicial notice that the sense of kinship runs deeply in a typical Filipino family, such that the whole family usually suffers or rejoices at the misfortune or good fortune, as the case may be, of any of its member. Accordingly, any attempt to dishonor or besmirch the name and reputation of the head of the family, as here, invariably puts the other members in a state of disrepute, distress, or anxiety. This reality adds an imperative dimension to the award of moral damages to the defamed party.

X x x.”


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Libel; Exemplary Damages: No aggravating circumstances accompanied the commission of the libelous acts; thus, no exemplary damages can be awarded.

September 16, 2015, 11:03 am
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ERWIN TULFO  Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T. SO, G.R. No. 161032;  and the accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008

“x x x.

The award of exemplary damages, however, cannot be justified. Under Art. 2230 of the Civil Code, In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. No aggravating circumstances accompanied the commission of the libelous acts; thus, no exemplary damages can be awarded.

X x x.”


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Unconstitutional Laws; Facial challenge vs. As-Applied Challenge; Overbreadth doctrine.

September 16, 2015, 11:17 am
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See  -  Facial challenge - Wikipedia, the free encyclopedia





"x x x.



In U.S. constitutional law, a facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void. It is contrasted with an as-applied challenge, which alleges that a particular application of a statute is unconstitutional.
If a facial challenge is successful, a court will declare the statute in question facially invalid, which has the effect of striking it down entirely. This contrasts with a successful as-applied challenge, which will result in a court narrowing the circumstances in which the statute may constitutionally be applied without striking it down. In some cases—e.g., Gonzales v. Carhart or Crawford v. Marion County Election Board, a facial challenge has been rejected with either the court or concurring Justices intimating that the upheld statute might be vulnerable to an as-applied challenge.
In First Amendment cases, another type of facial challenge is enunciated in the overbreadth doctrine. If a statute reaches to include substantially protected conduct and speech in relation to the legitimate reach of the statute, then it is overbroad and thus void on its face.
x x x."
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Search

RA 10175 - Cybercrime Prevention Act of 2012; dispositive part of 2012 SC decision declaring what provisions are constitutional and unconstitutional

September 16, 2015, 12:51 pm
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DISPOSITIVE PART OF THE DECISION OF THE SUPREME COURT ON THE CONSTITUTIONALITY OF R.A. 10175, CYBERCRIME PREVENTION ACT OF 2012.

SOME PARTS OF THE LAW WERE DECLARED UNCONSTITUTIONAL.

THE DECISION IS A CONSOLIDATION OF MANY CASES. THE LEAD CASE CAPTION IS:

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR. vs. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, G.R. No. 203335, February 11, 2014


DISPOSITIVE PART:


“x x x.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and CONSTITUTIONAL only in relation to

Section 4(a)(1) on Illegal Access,

Section 4(a)(2) on Illegal Interception,

Section 4(a)(3) on Data Interference,

Section 4(a)(4) on System Interference,

Section 4(a)(5) on Misuse of Devices,

Section 4(a)(6) on Cyber-squatting,

Section 4(b)(1) on Computer-related Forgery,

Section 4(b)(2) on Computer-related Fraud,

Section 4(b)(3) on Computer-related Identity Theft,

and

Section 4(c)(1) on Cybersex;


but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,

WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

X x x.”


CONSOLIDATED DECISION:

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR. vs. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, G.R. No. 203335, February 11, 2014

LOUIS "BAROK" C. BIRAOGO vs. NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, G.R. No. 203299, February 11, 2014.

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, ERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL. vs. OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, G.R. No. 203306, February 11, 2014.

SENATOR TEOFISTO DL GUINGONA III vs. EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, G.R. No. 203359, February 11, 2014.

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES vs. THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, G.R. No. 203378, February 11, 2014.

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL. vs. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, G.R. No. 203391, February 11, 2014.

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG vs. BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, G.R. No. 203407, February 11, 2014.

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center) vs. HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the Executive Department of Government), G.R. No. 203440, February 11, 2014.


NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-PETITION vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, G.R. No. 203453, February 11, 2014.

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES vs.THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, G.R. No. 203454, February 11, 2014.

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,

vs. HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, G.R. No. 203469, February 11, 2014.

PHILIPPINE BAR ASSOCIATION, INC. vs. HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National Police, G.R. No. 203501, February 11, 2014.

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES  vs. THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., G.R. No. 203509, February 11, 2014

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity as President and in his personal capacity vs. OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, G.R. No. 203515, February 11, 2014

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, G.R. No. 203518, February 11, 2014
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Sources of Information on Justice for Children

September 30, 2015, 8:44 am
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Content of Sources of Information on Justice for Children:



National Reports and Books p.1

International Reports and Books p.2

Training Manuals on Justice for Children and Children Rights p.3

International Instruments p.3





National Reports and Books:



Ø African Child Policy Forum (2007), Report on the Study of the Treatment of Cg Deprived of their Liberty in 8 Towns in Ethiopia, Draft, Addis Ababa, 72p.

Ø African Child Policy Forum (2006), Harmonisation of Laws relating to Children in Eastern and Southern Africa, A Draft Report, Addis Ababa, 61p.

Ø African Child Policy Forum (2005), A Report on Violence Against Children, Addis Ababa.

Ø Alem, E. (2005), Violence against children in Ethiopia; Manifestations, the Legal and Policy framework and Challenges of Implementation, UNICEF/MOLSA Ethiopia, 58p.

Ø Andargatchew Tesfaye (2000), An Evaluation of the Child Protection Program Operated by the Addis Ababa City Administration Police Commission and Forum on Street Children Ethiopia, Addis Ababa.

Ø Askale Mekonnen (2001), An Assessment Report of Best Practice of the Child Protection Programme undertaken by Police and Forum on Street Children Ethiopia, Addis Ababa.

Ø Askale Mekonnen & Sara T. Mariam (2003), An evaluation report o the performance of the Justice for Children project, Federal Supreme Court, Addis Ababa.

Ø Azeb Adefrsew (2004), Institutional Capacity Needs Assessment Survey: The Addis Ababa Rehabilitation Institute for Juvenile Delinquents, Addis Ababa, 59p.

Ø Desalegn Chalchisa (1997), Psychological Guidelines for Child Protection Unit and Procedural Manual for Police Working in Child Protection and Care Units, Addis Ababa.

Ø Endeshaw, Y., (2006), Gebeyehu, M. and Reta, B. (2006), Assessment of Trafficking in Women and Children in and from Ethiopia, IOM, 60p.

Ø Federal Democratic Republic of Ethiopia (2005), Comprehensive Justice System Reform Programme. Baseline Study Report, Ministry of Capacity Building, Justice System Reform Program Office, Addis Ababa.

Ø Federal Democratic Republic of Ethiopia (2005), Country response to the questionnaire on Violence against Children by the Federal Ministry of Labor and Social Affairs, Addis Ababa.

Ø Forum on Street Children Ethiopia (2003), Annual Report 2003.

Ø Forum on Street Children Ethiopia and Save the Children Sweden (2003), Community Based Correction Programme - Individual Treatment Plan, Addis Ababa.

Ø Forum on Street Children Ethiopia (2005), Annual Activity and Financial Report – Advocacy and Child Protection Programme, January – December 2004, Addis Ababa.

Ø Forum on Street Children – Ethiopia (FSCE), Information on Child Abuse in Ethiopia, FSCE, 22p.

Ø Forum on Street Children – Ethiopia (2006), Advocacy and Child Protection Program, Annual Activity and Financial Report, Submitted to Save the Children – Sweden, 46p.

Ø International Office for Migration (2004), Assessment of the magnitude of women and children trafficked within and outside Ethiopia, Addis Ababa.

Ø Justice for Children Project Office (2004), Bi-Annual Report of the Federal Supreme Court Justice for Children Project Office, Addis Ababa.

Ø Meskerem Geset Techane (2002), Critical Evaluation of the Justice for Children Administration in Ethiopia, Addis Ababa.

Ø Ministry of Capacity Building (2005), Federal Democratic Republic of Ethiopia, Comprehensive Justice System Reform Program, Baseline Study Report, Center for International Legal Cooperation, Leiden, 531p.

Ø Ministry of Labour and Social Affairs (2005), National Action Plan on Sexual Abuse and Exploitation of Children (2006 - 2010), MOLSA, Addis Ababa, 74p.

Ø National Committee on the Sexual Abuse and Exploitation of Children in Ethiopia, National Plan of Action on Sexual Abuse and Exploitation of Children (2006-2010), Draft, Addis Ababa, September 2005.

Ø National Plan of Action for Children, (2003-2010 and beyond), Addis Ababa.

Ø National Plan of Action on Orphans and Vulnerable Children (2004-2006), Addis Ababa.

Ø Original Wolde Giorgis, Emebet Kebede, Mellese Damtie (2004), Violence Against Women in Addis Ababa in Berchi, The Annual Journal of Ethiopian Women Lawyers Association, Number 5.

Ø Save the Children Denmark (2005), Prison Fellowship Ethiopia and Daystar Consult International, The Situation of Children in Prisons in Ethiopia, Addis Ababa.

Ø Save the Children Sweden (2005), Diversion of children in conflict with the law to community-based programme centers – a case study from Ethiopia, Addis Ababa.

Ø UNICEF & MOLSA (2005), Violence Against Children in Ethiopia: Manifestations, the Legal and Policy Framework and Challenges of Implementation, Addis Ababa.

Ø Quéré, V. (2005), Justice for Children, Good Practices and Remaining Challenges in the Area of ‘Justice for Children’ in Ethiopia, UNICEF Assessment Report, UNICEF, Ethiopia, 120p.

Ø United Nations Committee on the Rights of the Child (January, 2001), Concluding Observations of the Committee on the Rights of the Child, Ethiopia, U.N. Doc. CRC/C/15/Add.144, Geneva.

Ø van Welzenis, I. (2007)., Project ‘Children Rights Protection Training Development’; Needs Assessment Findings, UNICEF-Ethiopia, Addis Ababa, 70p.





International Reports and Books:



Ø International Save the Children Alliance (2005), The Right Not to Lose Hope: An analysis of violence in the lives of children in conflict with the law, with examples of good practice in community-based responses, Draft.

Ø Lansdown, G. (2005), The Evolving Capacities of the Child, UNICEF/Save the Children, 83p.

Ø Richman, N. (1993), Communicating with Children, Helping children in distress, Development Manual 2, Save the Children, London, 106p.

Ø Save the Children (1992), Helping children in difficult circumstances, A Teacher’s manual, Save the Children, London, 47p.

Ø Roy, N. and Wong, M. (2004), Juvenile Justice, Modern Concepts of Working with Children in Conflict with the Law, Save the Children, 174p.

Ø UNICEF (1998), Justice for Children, Innocenti Digest 3.

Ø UNICEF (2002), Implementation Handbook for the Convention on the Right of the Child (with CD-Rom), United Nations Publications, New York, 762p.

Ø UNICEF (2001), Early Marriage, Child Spouses, Innocenti Digest 7.

Ø UNICEF (2002), Birth Registration Rights from the Start, Innocenti Digest 9.





Training Manuals on Justice for Children and Children Rights:



Ø Philippine National Police, Office of the High Commissioner for Human Rights, UNICEF (2002), Juvenile Justice Training Manual for Law Enforcers : Child Rights Training, Volume One, Philippines.

Ø Save the Children Sweden, Regional Office for Eastern and Central Africa and Forum on Street Children Ethiopia (1999), Protection of Children, Youth and Women: Manual for Training Police Officers, Addis Ababa, Ethiopia.

Ø Save the Children Sweden, Forum on Street Children Ethiopia & Addis Ababa Police Commission (2004), Guidelines for Police Working in Child Protection Programs in Ethiopia& Pocket Book for Police Officers Working in Child Protection Programs, Ethiopia.

Ø Uganda Police Force and UNICEF, The Role of the Uganda Police in the Protection of Women and Children’s Legal Rights, A Trainer’s Manual, Uganda.

Ø UNICEF, Handbook on Juvenile Justice and Children’s Rights for police, magistrates and judges, UNICEF, Bangladesh.

Ø UNICEF, Police Guidelines for Dealing with Children, Mongolia

Ø UNICEF (2004), Timor-Leste Child Protection Section, Training Manual for Police Officers on Child Rights, Juvenile Justice, Child Abuse and Children At-Risk, Draft.

Ø United Nations (2001), Asia-Pacific Answers: Good Practices in Combating Commercial Sexual Exploitation of Children and Youth, www.unescap.org/esid/hds/sexual/inter-agency.doc

Ø Wernham, M. (2004), An Outside Change, Street Children and Juvenile Justice, An International Perspective, CCS, www.streetchildren.org.uk/resources

Ø Wernham, M. (2005), Police Training on Children Rights & Child Protection: Lessons Learned & Manual, CCS, www.streetchildren.org.uk/resources





International Instruments:



Ø UN Convention on the Rights of the Child: www.ohchr.org/english/law/crc.htm

Ø African Charter on the Rights and Welfare of the Child: www.achpr.org/english/_info/child_en.html

Ø Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict: www.unicef.org

Ø Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography: www.unicef.org

Ø UN Guidelines on the Prevention of Juvenile Delinquency (Riyadh Guidelines): www.ohchr.org/english/law/juvenile.htm

Ø UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules): www.ohchr.org/english/law/beijingrules.htm

Ø UN Rules for the Protection of Juveniles Deprived of their Liberty (JDLs): www.ohchr.org/english/law/res45_113.htm

Ø UN Guidelines for Action for Children in the Criminal Justice System (Vienna Guidelines): www.ohchr.org/english/law/system.htm

Ø UN Standard Minimum Rules for the Treatment of Prisoners: www.ohchr.org/english/law/treatmentprisoners.htm



Ø UN Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules): www.ohchr.org/english/law/tokyorules.htm
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Independence and impartiality of judges, prosecutors, lawyers

September 30, 2015, 8:50 am
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Inquest Proceedings | Remedial Law Notes

September 30, 2015, 8:58 am
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"x x x.

Sec. 6. When accused lawfully arrested without warrant. – When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.


NOTES:

Section 6 is called INQUEST PROCEEDINGS, related to Rule 113, Section 5 [a] and [b] on warrantless arrest. Inquests proceedings follow in cases where persons are arrested without the benefit of an arrest order or warrant, or are caught in the act of committing a criminal offense. 

Only offenses that would require preliminary investigation will have to go through inquest. Those not requiring preliminary investigation need not go through an inquest proceeding.

Here, there is no need for preliminary investigation because there is a deadline for the accused to be detained. Otherwise the peace officer will be guilty of arbitrary detention – delay in the delivery. 

The purpose of the inquest proceedings in these cases is that while the state acknowledges the law enforcers’ authority to arrest and detain persons without a warrant, the state must also ensure that these persons are not unlawfully detained, and that they are not denied due process. The inquest establishes whether the evidence is sufficient enough to seek court approval to keep the person in detention.

Prosecutors have a heavy burden to oversee police investigations in cases involving inquest proceedings (DOJ Circular 61 on New Rules on Inquest). Each police station or headquarters should in principle also have designated inquest prosecutors to process inquest procedures with a schedule of assignments for their regular inquest duties.

The inquest requires the prosecutors to resolve the complaint the police filed in a prescribed period, which varies depending on the gravity of the offense. Cases punishable with light penalties must be resolved in 12 hours; those punishable with correctional penalties within 18 hours; and those punishable by afflictive or capital penalties, within 36 hours. If the inquest prosecutor fails to complete the proceedings in the prescribed period then the person must be released. - http://www.article2.org



How should the complaint or information be filed when the accused is lawfully arrested without warrant?


The complaint or information may be filed by a prosecutor without need for a preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules. (Sec. 6, Rule 112, Rules of Court)


Suppose there is no inquest prosecutor? Or there is an inquest prosecutor but he is not available, what will happen now to the case?

In the absence of an inquest prosecutor, the offended party or any peace officer may file the complaint directly in court on the basis of the affidavit of the offended party or peace officer. (Sec. 6, Rule 112, Rules of Court)


What is an inquest?



An inquest is an informal and summary investigation conducted by a public prosecutor in a criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly charged in court. (Section 1, DOJ Circular No. 61)



What is the remedy of the person arrested without warrant if he wants a preliminary investigation?


BEFORE the complaint or information is filed, he may ask for one provided that he signs a waiver of his rights under Article 125 of the Revised Penal Code in the PRESENCE of his counsel. He may still apply for bail in spite of the waiver. The investigation must be terminated within 15 days.


● Correlate this with Section 2 [e] of RA 7438 – Law Protecting Rights of Persons under custody– i.e. he must be assisted by his counsel. Otherwise the waiver is not valid.

AFTER the complaint of information is filed but before arraignment, the accused may, within 5 days from the time he learns of its filing, ask for a preliminary investigation. (Sec. 6, Rule 112, Rules of Court)


● The request for preliminary investigation should be made before plea, otherwise the right to ask for a preliminary investigation shall be deemed waived.

● The period for filing a motion for preliminary investigation after an information has been filed against an accused who was arrested without a warrant has been characterized as mandatory by the court. In People vs Figueroa, the Supreme Court held that as the accused in that case did not exercise his right within the five-day period, his motion for reinvestigation was denied.


What are the guidelines to safeguard the rights of an accused who has been arrested without a warrant?


1. The arresting officer must bring the arrestee before the inquest prosecutor to determine whether the person should remain in custody and charged in court or if he should be released for lack of evidence or for further investigation.


2. The custodial investigation report shall be reduced to writing, and before such report is signed or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to him, otherwise, such investigation report shall be null and void and of no effect whatsoever. (DOJ Circular No. 61)


x x x."
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When may DOJ Sec. decline to render an opinion?

September 30, 2015, 10:21 am
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20 April 2012

MEMORANDUM CIRCULAR NO. 026

SUBJECT: GROUNDS FOR DECLINING TO RENDER AN OPINION



"x x x.

In order for the Department to more faithfully fulfill its mandate and function as legal counsel for the government (Sections 1 to 3, Chapter 1, Title III, Book IV, Administrative Code of 1987) the Office of the Legal Staff - which is, in turn, mandated to, among others, assist the Secretary in the performance of his duties as Attorney General of the Philippines and as ex-officio legal adviser of government-owned or controlled corporations or enterprises and their subsidiaries, and prepare and finally act for and in behalf of the Secretary on all queries and/or requests for legal advice or guidance coming from private parties, and minor officials and employees of the government (Section 7, Chapter 2) - is hereby advised that, henceforth, the Department shall retain only the following grounds for declining to render opinions:


1. Issues posed have already been passed upon by the courts, Provided that the Department shall not decline rendering an opinion where, although related matters have already been passed upon by the courts, what is being sought from the Department is, for instance, an opinion on the implications of the courts' decision, and other similar matters;

2. Issues that are subjudice;

3. Issues the resolution of which properly pertains to the prosecuting officers;

4. Issues raised by subordinate officials of other offices or agencies, Provided that the Department shall not decline rendering an opinion where there exists exceptional reasons to do so, such as the issue/s raised is/are of national interest or importance, or the subordinate official has raised other sufficient justification as to why his/her request for advice/opinion ought to be granted, including absence of other adequate recourse or remedy, etc.;

5. Issues which are already moot and academic;

6. Issues that do not involve specific legal issues but questions of facts or mixed questions of fact and law; and

7. Issues which are purely hypothetical and speculative.

x x x."
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