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Patriots owner s prostitution case heads to appellate court

By TERRY SPENCER Associated Press FORT LAUDERDALE, Fla. (AP) — Prosecutors charging New England Patriots owner Robert Kraft with twice buying sex from massage parlor prostitutes will attempt to save their case this week by arguing to an appeals court that his rights weren't violated when police secretly video-recorded him in the act. Prosecutors will tell the Florida Fourth District Court of Appeal during an online hearing Tuesday that a county judge erred when he invalidated the January 2019 search warrant allowing police to install secret cameras at Orchids of Asia spa as part of an alleged sex trafficking investigation. The judge said the warrant didn’t sufficiently protect the privacy of innocent customers who received legal massages, and he barred the videos’ use at trial as well as testimony about what they showed. If the ruling stands, it will deal a fatal blow to the prosecution's case. “Mr. Kraft's guilt is a virtual certainty” and he has no right to benefit from any possible mistakes police made involving innocent customers, Deputy Solicitor General Jeffrey DeSousa wrote in court documents. Kraft's attorneys vehemently disagreed, arguing that if the three-justice panel allows the videos' use, “civil liberties cherished in Florida and beyond” will be endangered. “If the state wins this appeal, then everyone loses, not just the accused,” attorney Frank Shepherd wrote. “Government could run roughshod over privacy and constitutional rights while evading scrutiny.” The Jupiter police recordings led to misdemeanor charges against Kraft and two dozen other alleged Orchids of Asia customers. The spa owners and some employees are charged with prostitution-related felonies. Most cases are in limbo while the appeals are heard. If prosecutors can’t use the videos, they would almost certainly dismiss any misdemeanor charges awaiting trial. Some defendants took plea deals but Kraft refused. The felony cases could proceed, as those have other evidence besides the videos. Kraft, a 79-year-old widower and part-time Palm Beach resident, has pleaded not guilty but issued a public apology. He faces a possible one-year jail sentence if convicted, but would likely receive a fine, community service and other sanctions. Kraft, whom Forbes Magazine ranks as the 82nd richest American with a worth of almost $7 billion, is employing several high-priced attorneys to fight the charges. DeSousa submitted several arguments against Palm Beach County Judge Leonard Hanser's ruling. Among them: — The warrant is valid because police minimized any privacy invasion by having only three detectives monitor video. Any further minimization, such as recording only snippets of each massage, would have made the investigation impossible. — Kraft illegally paid for sex and is lawfully covered by the warrant, even if the justices determine police violated innocent customers' privacy rights. — If the warrant is invalid, the detectives relied on it “in good faith” and a sanction banning the video is too extreme. Shepherd submitted several counterarguments for Kraft. They include: — Detectives' privacy protection efforts were insufficient because they recorded seminude men and women receiving legal massages, making the Kraft recordings also illegal. — Police had enough evidence to charge the spa owners with felonies without recording, making the cameras “wholly gratuitous." — The evidence detectives presented to obtain the magistrate's warrant approval was “deliberately misleading,” negating any argument they acted in good faith. The justices won’t immediately rule after the hearing; decisions usually takes weeks. The losing side will likely appeal to the Florida Supreme Court, which could accept the case or let the justices’ ruling stand. Authorities say the Orchids of Asia investigation was part of a multicounty probe into possible sex trafficking by spa owners who they believe brought women from China and elsewhere to work as prostitutes. About 300 people were charged with various felonies and misdemeanors, but no trafficking charges were pursued — prosecutors say they received no cooperation from masseuses whom they suspect were trafficked. According to police, Kraft's chauffeur drove him to Orchids of Asia on the evening of Jan. 19, 2019, where detectives recorded him engaging in a sex act with two women and then paying an undetermined amount in cash. Investigators said Kraft returned the next morning and engaged in recorded sex acts with a woman before paying with a $100 bill and another bill. Hours later, Kraft was in Kansas City for the AFC Championship game, where his Patriots defeated the Chiefs. His team then won the 2019 Super Bowl in Atlanta, the Patriots’ sixth NFL championship under his ownership. Prosecutors offered to drop the charges if Kraft entered a diversion program for first-time offenders. That would include an admission he would be found guilty if the case went to trial, a $5,000 fine, 100 hours of community service and attending a class on the dangers of prostitution and its connection to human trafficking. The hearing is scheduled to begin at 10 a.m. EDT Tuesday on the court's YouTube channel......»»

Category: sportsSource: abscbn abscbnJun 29th, 2020

Judges question warrants in Kraft massage parlor sex case

By TERRY SPENCER Associated Press FORT LAUDERDALE, Fla. (AP) — Florida appellate judges on Tuesday questioned the legality of search warrants that let police secretly video record New England Patriots owner Robert Kraft and others paying for massage parlor sex, pressing a prosecutor on his contention that the warrants were legally valid. Deputy Solicitor General Jeffrey DeSousa found himself repeatedly queried by the three-judge panel as he tried to persuade them that the warrants and searches met all constitutional protections and that they should overturn lower court rulings that barred the recordings' use at trial. Misdemeanor charges against Kraft, 79, and other customers would have to be dropped if those rulings stand, although felony charges against the spa owners might proceed as there is other evidence against them. Kraft and others were charged in February 2019 in a multi-county investigation of massage parlors that included the secret installation of video cameras in the spas' lobbies and rooms. Police say the recordings show Kraft and other men engaging in sex acts with women and paying them. Police say they twice recorded Kraft, a widower, paying for sex at the Orchids of Asia massage parlor. Kraft has pleaded not guilty but issued a public apology. Judge Robert Gross, who presided at the Florida Fourth District Court of Appeal hearing, seemed taken aback by DeSousa's contention that he and his colleagues should primarily consider the plain language of the Fourth Amendment. It says judges can issue warrants if police demonstrate probable cause of a crime, that warrants must specify the place to be searched and what can be seized. Gross told DeSousa he seemed to be ignoring numerous rulings by the U.S. Supreme Court expanding Fourth Amendment protections since the 1960s, including some that restrict electronic surveillance by police. “You are getting us off on the wrong foot by focusing on the language of the Fourth Amendment when we should be focusing on the Supreme Court jurisprudence....that is heavily weighted against you,” Gross told DeSousa. The 90-minute hearing included arguments on whether cameras were necessary; on whether the police violated the privacy of customers who simply received massages; and on the proper sanction if the defendants' rights were violated. The attorneys for Kraft and the other defendants argued that police failed to minimize the privacy violations they committed by recording innocent customers, including women, who received legal massages. “These cameras, that were put into private massage rooms where patrons would be undressing as a matter of course, they recorded everything," Kraft attorney Derek Shaffer said. He said Kraft “had the same reasonable expectation of privacy that any massage patron going to a licensed facility would be entitled.” Attorneys also argued the cameras weren't necessary as police already had enough evidence to charge the spa owners, including bank records, website advertising, outside video surveillance and napkins containing bodily fluids retrieved from garbage bins. The only proper punishment for prosecutors and police, they argued, is to throw out all recordings. DeSousa argued that police and prosecutors need the recording to convict the owners of felonies. The owners must be shown receiving payments from the prostitutes and the only way to get that is to install cameras, he said. He said detectives had to fully record all massages, because the sex acts happened at their conclusion and 95% of male customers received one. While no female customers paid for sex, they were few in number and to not record them could be seen as discriminating against men, he said. DeSousa said even if the court finds police violated innocent customers' privacy rights, the Supreme Court has ruled that in most circumstances, only improperly seized evidence should be thrown out. Since Kraft, the other men and the masseuses were engaged in crimes, their recordings should be permitted, he said. “Given the unique and difficult circumstances confronting these officers, the conspiracy, the logistics of the operation, what they reasonably anticipated they would see and the difficulty of knowing at the start of any given massage will this end with a happy ending or will it not, we think what law enforcement did here was entirely reasonable,” DeSousa said. The court usually takes weeks to issue rulings. The losing side will likely appeal to the state Supreme Court, which could accept the case or let the decision stand. If convicted, Kraft would likely receive a fine, community service and other sanctions, but he could also be suspended or otherwise punished by the National Football League......»»

Category: sportsSource:  abscbnRelated NewsJul 1st, 2020

Rule 108 on substantial change

Ramon filed a petition under Rule 108 of the Rules of Court, with the trial court for the correction of his name on his birth certificate from “Ramon Corpuz Tan Ko” to “Ramon Corpuz Tan”. He argued that all his life, he only went by the latter name; that is without the “Ko”. He submitted as evidence all documents he deemed necessary to justify the correction of his birth certificate. The trial court went through the proceedings. The court, upon rendition of judgment, dismissed his petition. It decreed that while Rule 108 was correctly invoked, Ramon did not comply with what is incumbent upon him in adversarial proceedings. The court noted that his petition involved a substantial correction, which under the rules, clearly mandated adversarial proceedings and not merely a summary. It opined that Ramon should have impleaded his mother in the proceedings. For his failure to do so, his petition could not be granted. Of course, Ramon did not agree to this. He argued that the dropping of the name “Ko” was no substantial correction and thus, his mother was not necessarily a party. The trial not giving in to his plea, Ramon elevated the matter to the Court of Appeals. The higher court, however, disagreed with him. It affirmed that the lower court that it is indeed a substantial correction. Ramon thus now had no other alternative but to resort to Supreme Court. The issue to be resolved before the Highest Court is whether his request for correction, that is the removal of the name “Ko” from his name is substantial or not. If it is, then indeed adversarial proceedings should have been observed. If not, then a mere summary hearing could be had. Thus the Supreme Court ruled: “Rule 108 of the Revised Rules of Court governs the proceeding for the cancellation or correction of any entry concerning the civil status of persons which has been recorded in the civil register. “In Republic of the Philippines v. Valencia, the Court declared that a petition for correction of entry under Rule 108 of the Rules of Court covers not only clerical errors, but also substantial changes. The difference lies only in the procedure which would govern the correction sought. “If the correction is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship, or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. “A clerical error is one which is visible to the eyes or obvious to the understanding; an error made by a clerk or a transcriber; a mistake in copying or writing, or a harmless change such as a correction of a name that is clearly misspelled or of a misstatement of the occupation of the parent. On the other hand, substantial or contentious alterations may be allowed only in adversarial proceedings, in which all interested parties are impleaded and due process is properly observed. Substantial and controversial alterations include those which may affect the citizenship, legitimacy of paternity or filiation, or legitimacy of marriage. The issue to be resolved before the Highest Court is whether his request for correction, that is the removal of the name ‘Ko’ from his name is substantial or not “Corrections in the name, whether of the owner of the Certificate of Live Birth or any of the parents indicated therein, may also involve substantial and controversial matters which would require an adversarial proceeding. “In this case, the alleged error could not be considered a clerical error or a readily apparent mistake. Contrary to the petitioner’s claim, the correction sought would definitely have an effect on his filiation with the persons named in his Certificate of Live Birth. “As aptly observed by the appellate court, the name ‘Tan Ko’ has been consistently used not only in the entries for petitioner’s name, but also for that of his parents. In entry No. 7, the name of petitioner’s father was entered as ‘Tan Ko,’ while his mother’s name was entered as ‘Trinidad Corpus Tan Ko’ in entry No. 12. Furthermore, his mother, as the informant for petitioner’s birth certificate, signed as ‘T.C. Tan Ko’ in entry No. 17. “Verily, the ‘correction’ of petitioner’s name from ‘Ramon Corpus Tan Ko’ to ‘Ramon Corpuz Tan’ would necessarily affect not only his name, but also the names of his parents as entered in his Certificate of Live Birth. “As correctly explained by the appellate court, altering petitioner’s surname from ‘Tan Ko’ to “Tan” would, in effect, be an adjudication that the first name of his father is indeed ‘Ko’ and his surname ‘Tan.’ Clearly, the correction would affect the identity of petitioner’s father. Moreover, there would be a need to correct his mother’s name from ‘Trinidad Corpus Tan Ko’ to ‘Trinidad Corpuz Tan.’ This would require deleting the word ‘Ko’ from ‘Tan Ko’ and changing the letter “s” to ‘z’ in ‘Corpus.’ Following Benemerito, to effect the correction, it would be essential to establish that ‘Trinidad Corpus Tan Ko’ and ‘Trinidad Corpuz Tan’ refer to the same person. A summary proceeding would certainly be insufficient to effect such substantial corrections.” The facts and quoted part of the decision are from Ramon Corpus Tan v. Office of the Civil Registrar et al. G.R. 211435 promulgated on 10 April 2019. The post Rule 108 on substantial change appeared first on Daily Tribune......»»

Category: sportsSource:  abscbnRelated NewsJul 23rd, 2023

Co-ownership presumed in void marriages

Last week, I wrote about the partition of properties that follows after the marriage between spouses is declared null and void. As discussed then, whatever property regime (absolute community, conjugal partnership or complete separation) the parties followed during marriage will not come into play once the marriage is annulled. This is so because as expressly declared by Article 147 of the Family Code, properties acquired during cohabitation after the same has been declared null, shall be considered co-owned by the parties. By co-ownership means, the once-married spouses now own them fifty-fifty. But note that said provision of the law expressly states that “in the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares.” From the above, co-ownership is a disputable presumption.  So for as long as a party proves otherwise, the fifty-fifty presumption will not be upheld by the courts. Ok, so what if during the marriage, husband A buys a house. In the title, the registered owner is only him, although it explicitly states that he is married to his wife B. B, on the other hand, purchases a condominium unit. The title this time bears only her name as the registered owner, without even any express mention that she is married to A. Let us just say that one day, one of them obtains a declaration of nullity of their marriage and partition of property follows. So we all know that whatever properties they obtained during the time they lived together will be co-owned by them, correct? Yes, that is right. But can A claim that the house he bought is his alone as borne by the title itself. Had they, A and B, jointly bought them, then the registered owners should be them both. Following that argument, can B now claim that her title to the condominium unit is enough proof to show that it was acquired solely through her efforts?  Well as things seem, yes; the presumption of co-ownership has been overcome. And necessarily, the house must go to A alone while the condominium to B exclusively. Will this be a correct interpretation of the provisions of the Family Code? Here is how the Supreme Court resolved the issue in Virginia Ocampo v. Deogracio Ocampo (G.R. No. 198908 promulgated on 3 August 2015).  “From the foregoing, property acquired by both parties through their work and industry should, therefore, be governed by the rules on equal co-ownership.  Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts.  A party who did not participate in the acquisition of the property shall be considered as having contributed to the same jointly if said party’s efforts consisted of the care and maintenance of the family household. Efforts in the care and maintenance of the family and household are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry.  In the instant case, both the trial and appellate courts agreed that the subject properties were in fact acquired during the marriage of Virginia and Deogracio.  We give due deference to factual findings of trial courts, especially when affirmed by the appellate court, as in this case. A reversal of this finding can only occur if petitioners show sufficient reason for us to doubt its correctness.  There is none, in this case.  Likewise, we note that the former spouses both substantially agree that they acquired the subject properties during the subsistence of their marriage.  The certificates of titles and tax declarations are not sufficient proof to overcome the presumption under Article 116 of the Family Code.  All properties acquired by the spouses during the marriage, regardless in whose name the properties are registered, are presumed conjugal unless proved otherwise.  The presumption is not rebutted by the mere fact that the certificate of title of the property or the tax declaration is in the name of one of the spouses only.  Article 116 expressly provides that the presumption remains even if the property is ‘registered in the name of one or both of the spouses’. Thus, the failure of Virginia to rebut this presumption, said properties were obtained by the spouses’ joint efforts, work or industry, and shall be jointly owned by them in equal shares.  Accordingly, the partition of the former spouses’ properties on the basis of co-ownership, as ordered by the RTC and the appellate court, should be affirmed.” Clear as day then.  The fact that a title is solely in the name of a spouse does not overcome the presumption of co-ownership.  It takes more than that.  What then is needed to overcome the presumption?  Consult your counsel. The quoted provision of the decision is from the case mentioned above. The post Co-ownership presumed in void marriages appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsMay 14th, 2023

Kazakhstan: Baseless Extremism Case Heads to Court

(Berlin, February 8, 2024) - A journalist in Kazakhstan is to face trial on February 12, 2024 on unfounded extremism-related charges, as authorities there ramp up prosecutions against critics on similar charges, Human Rights Watch said today. The authorities should drop their unfounded case against the journalist and activist, Duman Mukhammedkarim, and im.....»»

Category: sportsSource:  abscbnRelated NewsFeb 9th, 2024

Reps Duterte and Castro trade barbs anew

House lawmakers Paolo Duterte and France Castro continued to trade barbs, with the former accusing his peer of merely sensationalizing the issue with his father, former president Rodrigo Duterte. Duterte struck back anew at Castro—who filed a grave threat case against the former president—for her swift retaliation against his remark that "public servants should not be onion-skinned." "I just wish that your passion to sensationalize this further is the same as your passion to protect the farmers and innocent victims who were killed and victims of the NPAs," Duterte told Castro. The younger Duterte made the remark in response to Castro's latest tirades against his father, saying the erstwhile president's statement was far from a legitimate criticism but a threat. Recall that Castro sued the ex-president before the Quezon City Prosecutor's Office on Tuesday after threatening to kill her and "all you communists" on a television program. Castro, a member of the Makabayan bloc, stressed that "this is a crime against a person" and that "Duterte's threats should stop." "Death threats and red-tagging aired on television must be must be stopped because it endanger the lives of people. It is far different from criticisms and should not be tolerated because it fosters the state of impunity," Castro said. Congressman Duterte came to the defense of his father, accusing Castro of using her right to silence critics. "The former President has received much harsher and humiliating criticisms in the past but never filed a case against anyone. As public servants, we all are under scrutiny by the Filipino people," Duterte said. He added, "If the former President has said something that threatened her, then maybe she should come out clean. It's not that we hide behind this so-called 'right.'" Furthermore, Duterte stressed that Castro should do away from the drama and publicity. "You filed a case; let the court look at the merits. Simple as that. Like what I've said, it is your right. But I heard worse." Castro has been on the receiving end of the Dutertes tirades following the crusade of the Makabayan bloc to strip Vice President Sara Duterte's office and the Department of Education, which she concurrently heads, of P650 million in confidential funds from the proposed 2024 budget. Ex-president Duterte said Castro would have been the "first target" of his daughter's intelligence fund. The OVP and DepEd were among the five civilian agencies, namely the Department of Agriculture, the Department of Foreign Affairs, and the Department of Information And Communications Technology, awarded zero confidential funds for next year. The post Reps Duterte and Castro trade barbs anew appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsOct 26th, 2023

Dozens U.S. states sue Meta

Dozens of American states on Tuesday accused Facebook and Instagram owner Meta of profiting “from children’s pain,” damaging their mental health and misleading people about the safety of its social media platforms. In total, more than 40 states are suing Meta, though some opted to file in local courts rather than join in the federal case. Meta has exploited young users by creating a business model designed to maximize time they spend on the platform despite harm to their health, the joint lawsuit filed in federal court in California claimed. “Kids and teenagers are suffering from record levels of poor mental health and social media companies like Meta are to blame,” New York Attorney General Letitia James in a statement announcing the suit. The suit urges the federal court to order Meta to stop manipulative tactics and pay hefty financial penalties along with restitution, according to James. Meta said it was “disappointed” by the suit and that the states were not working with the array of social media companies to create age-appropriate standards. Meta maintained that it has developed more than 30 tools in its apps to support teenage users, and made it easier for parents to “shape” online activity. The Silicon Valley tech firm contended it is disappointing that attorneys general have singled out Meta instead of seeking industry-wide solutions given the popularity of rivals including TikTok, YouTube and Snap. Social media can also be a place where young people struggling with other issues in their lives go to find support of community, Meta maintained. The post Dozens U.S. states sue Meta appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsOct 25th, 2023

Dozens of US states sue Meta over harm to children

Dozens of US states on Tuesday filed a lawsuit accusing Facebook and Instagram owner Meta of of profiting "from children's pain," damaging their mental health and misleading the public over the safety of its platforms. "In seeking to maximize its financial gains, Meta has repeatedly misled the public about the substantial dangers of its Social Media Platforms," argued the suit filed in federal court in California. In total more than 40 states are suing Meta, though some opted to file in local courts rather than join in the federal case. Meta has exploited young users by creating a business model designed to maximize time they spend on the platform despite harm to their health, the legal filing argued. "Kids and teenagers are suffering from record levels of poor mental health and social media companies like Meta are to blame," said New York Attorney General Letitia James in a statement announcing the suit. "Meta has profited from children's pain by intentionally designing its platforms with manipulative features that make children addicted to their platforms while lowering their self-esteem." The suit goes on to accuse Meta of misleading the public about the safety of its platforms, including a Horizon World virtual reality offering that is part of the tech titan's vision of the metaverse. The suit urges the federal court to order Meta stop manipulative tactics and pay hefty financial penalties along with restitution, according to James. "Social media companies, including Meta, have contributed to a national youth mental health crisis and they must be held accountable," James said. Meta said it was "disappointed" by the suit. “We share the attorneys general's commitment to providing teens with safe, positive experiences online, and have already introduced more than 30 tools to support teens and their families," a spokesperson said. "We're disappointed that instead of working productively with companies across the industry to create clear, age-appropriate standards for the many apps teens use, the attorneys general have chosen this path." The post Dozens of US states sue Meta over harm to children appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsOct 24th, 2023

Rep. Castro will sue former president Duterte for grave threats

Former president Rodrigo Duterte will be sued for grave threat raps by ACT Teachers Partylist Rep. France Castro, whom he threatened to kill over issues of confidential funds requested by his daughter, Vice President Sara Duterte. Castro said the criminal complaint is scheduled to be filed tomorrow morning before the Quezon City Regional Trial Court with some National Union of Peoples Lawyer members, former Philippine Bar Association head Rico Domingo, and lawyer Antonio La Viña, who volunteered to handle the case. "This is a crime against a person. Former president Duterte's threats should stop," she said in an interview on Monday. The progressive lawmaker has been on the receiving end of Duterte's tirades following the crusade of the Makabayan bloc to strip the VP of multi-million confidential funds from the proposed 2024 budget. VP Duterte sought P500 million and P150 million in confidential funds for OVP and the Department of Education, respectively. The militant group waged a successful battle against the VP's secret funds as the House leadership concurred with their proposal of formally removing it and rather channeled it to agencies in charge of monitoring and protecting the country's national security and territorial rights in the West Philippine Sea. The VP, who claimed her secret funds will be used to promote peace and order, previously accused critics of having "insidious motivations." The OVP and DepEd, which the VP concurrently heads, were among the three civilian agencies, namely the Department of Agriculture, the Department of Foreign Affairs, and the Department of Information And Communications Technology, awarded zero confidential funds for next year. The former president said Castro would have been the "first target" of his daughter's intelligence fund. "It's time for the Dutertes to stop doing this, especially former president Rodrigo Duterte. He admitted he kills. So, it has to be stopped because it has no place in this society," Castro said. According to Castro, she only did her duties as a lawmaker of scrutinizing the budget, particularly the confidential funds, and the Dutertes should not interpret it as a personal affront. House leaders previously said they would not tolerate Duterte's threats and intimidation of any members of the lower chamber. Moreover, they would back Castro's move to file legal action. The House is also geared up to provide Castro additional security following a death threat from Duterte, according to House secretary general Reginald Velasco. The post Rep. Castro will sue former president Duterte for grave threats appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsOct 23rd, 2023

Neither estafa nor qualified theft (2)

In Balerta v. People, the Court found that juridical possession as an element of the crime of estafa by misappropriation was not present because the accused was a cash custodian with no independent right or title to the funds received: In the case at bench, there is no question that the petitioner was handling the funds lent by Care Philippines to BABMPC. However, she held the funds on behalf of BABMPC. She had mere physical or material possession over the funds but held no independent right or title, which she could set up against BARMPC. The petitioner was nothing more than a mere cash custodian. Hence, the Court finds that juridical possession of the funds as an element of the crime of estafa by misappropriation is absent in the instant case. In Reside v. People, the Court came to a similar conclusion and held that the accused, a school principal tasked to receive tuition fees and forward these to the school, did not have juridical possession over the funds received. In the case at bench, it cannot be gainsaid that the petitioner, in addition to her duties as principal, was authorized to receive or collect matriculation fees from the parents and/or students enrolled in TGWSI. Per a verbal agreement with De Dios, the petitioner shall forward all payments received together with the remittance voucher slips to the school. As it happens, the money merely passes into the petitioner’s hands, and her custody is only until the same is remitted to the school. Consequently, as principal and temporary cash custodian of TGWSI, the petitioner acquires only physical or material possession over the unremitted funds. Thus, being a mere custodian of the unremitted tuition fees and not, in any manner, an agent who could have asserted a right against TGWSI over the same, the petitioner had only acquired material and not juridical possession of such funds and, consequently, cannot be convicted of the crime of estafa as charged. The prosecution alleged that petitioner Medina was responsible for collecting remittances from the Department of Education, accepting premium payments from PPSTA members, and depositing these payments in PPSTA’s bank account, as instructed by the PPSTA Treasurer. The record is bereft of any allegation or proof that petitioner Medina had any independent right or title to these funds that she could set up against PPSTA. Contrary to the findings of the CA, petitioner Medina was not a “trustee” of the PPSTA members’ payments, as she received these sums as an employee of, and on behalf of, her employer. Consequently, petitioner Medina only had material and not juridical possession of these funds, and she cannot be convicted for estafa under Article 315 (b) (l) of the Revised Penal Code or RPC. Second, jurisprudence holds that a conviction for simple or qualified theft (in lieu of estafa) is possible if all the elements of theft are alleged in the information. However, the evidence on record needs to be more sufficient to convict petitioner Medina of theft, whether simple or qualified. Simple theft is committed when the following elements concur: (1) taking of personal property; (2) that the said property belongs to another; (3) that the said taking be done with intent to gain; (4) that it be done without the owner’s consent; (5) that it be accomplished without the use of violence or intimidation against persons, nor of force upon things; and (6) that it be done with grave abuse of confidence. Theft becomes qualified when committed with grave abuse of confidence, among other qualifying circumstances enumerated in Article 310 of RPC. (To be continued) The post Neither estafa nor qualified theft (2) appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsOct 22nd, 2023

Makati petitions status quo ante vs Taguig

Makati City Mayor Abby Binay yesterday filed an “Urgent Motion for Clarification with Prayer for the Issuance of a Status Quo Ante Order” before Branch 153 of the Taguig City Regional Trial Court in a case entitled “Municipality of Taguig (Now City of Taguig) v. Municipality of Makati (Now City of Makati) et al.,” Civil Case No. 63896. The lady mayor, in an ambush interview, said there should be a smooth transiton because they don’t want disruption of delivery of basic services to the residents. In the Urgent Motion, Makati City asked RTC-Taguig to issue a status quo order against Taguig City citing its attempts to unilaterally and arbitrarily implement the Supreme Court’s decision without any writ of execution from the trial court and even prior to the metes and bounds of parcels 3 and 4 of Psu-2031 being determined. Binay filed the Urgent Motion accompanied by City Administrator Claro Certeza and City Legal Officer Michael Camiña. The status quo order, which is similar to a cease-and desist order, is an order to maintain the last actual, peaceable, uncontested state of things which preceded the controversy. It was noted in the Urgent Motion that the Supreme Court has consistently ruled that a “status quo order is warranted in order to promote common good as well as protect the public interest.” Binay said the court is the best avenue to address the matter as far as they are concerned because Taguig City doesn’t want to sign the writ of execution and the memorandum of agreement Makati City is proposing to have a smooth transition. “Even the issue of ownership they don’t want to tackle and it seems they have a different interpretation of the SC ruling and we also have a different view and the best solution is for the court to determine this matter,” Binay said. According to Mayor Binay, “Makati only wants an orderly administration of the Supreme Court decision with the least disruption to the residents and the uninterrupted delivery of basic services in the affected areas.” EMBO residents At the moment, Makati City continue to provide the needed services to the affected enlisted men’s barrio residents because they don’t want interruption and they are the ones giving the funding not Taguig City. “The problem with them they are choosing what they want to take over what about disaster, garbage collection, school, health services, electricity? There are so many things that should be settled first and as long as there is no writ of execution we will continue to provide services to the residents,” Binay said. Makati City cited a number of “alarming and highly confusing incidents” caused by Taguig’s attempt to forcibly execute the SC Decision without a valid writ of execution. These include attempts to enter the premises of a housing project owned by Makati City, as well as to forcibly take possession of several school buildings and health centers in the affected barangays. “Taguig cannot simply take the law into its own hands and act as it pleases without any writ of execution issued by the court. Because of Taguig’s arbitrary, whimsical, and capricious attempts to unilaterally implement the SC Decision in a piece-meal manner, the people’s welfare has been unduly prejudiced by Taguig City and has created unwarranted tension and confusion among the residents and various government agencies,” Mayor Binay said. Makati City noted that the Supreme Court did not expressly order any part of the SC Decision to be immediately executory, nor did it expressly mention in the dispositive part the exact metes and bounds of Parcels 3 and 4 of PSU-2031. Makati City, therefore, asked the trial court to clarify and confirm the necessity of Taguig City first obtaining a writ of execution as well as the court determining the exact metes and bounds of Parcels 3 and 4 of PSU-2031 before the SC Decision can be implemented. The Urgent Motion will also allow Makati to assert its rights as owner of properties located in the disputed areas. As stated by Mayor Binay, “[t]he present case involves a territorial dispute. It does not involve ownership of properties located within the disputed territory.” The post Makati petitions status quo ante vs Taguig appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsOct 5th, 2023

The only brief that is long

Jurisprudence holds that the right to appeal is neither a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law. (Fenequito v. Vergara Jr., G.R. No. 172829, 18 July 2012). An appeal being a purely statutory right, an appellant or appealing party must strictly comply with the requisites in the Rules of Court. With respect to ordinary appealed cases to the Court of Appeals (CA), Section 7, Rule 44 of the Revised Rules of Civil Procedure requires an appellant to file an Appellant’s Brief with the CA within 45 days from receipt of the notice of the clerk. According to the Supreme Court in Philippine Coconut Authority v. Corona International Inc. (G.R. No. 13991, 29 September 2000), the purpose of the Appellant’s Brief is to present to the court in coherent and concise form the point and questions in controversy and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion. Failure to file an Appellant’s Brief within the prescribed period is a ground for the dismissal of the appeal. (Section 1(e), Rule 50 of the Revised Rules) However, the SC clarified in Sindophil Inc. v. Republic (G.R. No. 204594, 07 November 2018) that the use of the permissive “may” in the wording of the above-stated provision means the dismissal of an appeal by the CA is directory and not mandatory. This means that the failure to file an appellant’s brief within the reglementary period would not automatically result in the outright dismissal of the appeal, as the CA is bound to exercise its sound discretion whether to allow the appeal to proceed or not. The SC explained that allowing the appeal despite the failure to file an Appellant’s Brief must be decided by the CA, taking into account all the factors surrounding the case. Its discretion must be exercised with due regard to justice and fair play under the circumstances. In several cases, the question of whether or not to sustain the dismissal of an appeal due to the appellant’s failure to file the Appellant’s Brief had been raised before the SC. In some of these cases, the High Court relaxed the Rules and allowed the belated filing of the Appellant’s Brief. In other cases, however, the Court applied the Rules strictly and considered the appeal abandoned, which thus resulted in its eventual dismissal. Finally, in Government of the Kingdom of Belgium v. Court of Appeals (G.R. No. 164150, 14 April 2008), the SC revisited the cases that it had previously decided and laid down the following guidelines in confronting the issue of non-filing of the Appellant’s Brief: 1. The general rule is for the CA to dismiss an appeal when no appellant’s brief is filed within the reglementary period prescribed by the rules; 2. The power conferred upon the CA to dismiss an appeal is discretionary and directory and not ministerial or mandatory; 3. The failure of an appellant to file his brief within the reglementary period does not have the effect of causing the automatic dismissal of the appeal; 4. In case of late filing, the appellate court has the power to still allow the appeal; however, for the proper exercise of the court’s leniency[,] it is imperative that: (a) the circumstances obtaining warrant the court’s liberality; (b) that strong considerations of equity justify an exception to the procedural rule in the interest of substantial justice; (c) no material injury has been suffered by the appellee by the delay; (d) there is no contention that the appellee’s cause was prejudiced; or (e) at least there is no motion to dismiss filed. 5. In case of delay, the lapse must be for a reasonable period; and 6.Inadvertence of counsel cannot be considered as an adequate excuse to call for the appellate court’s indulgence except: (a) where the reckless or gross negligence of counsel deprives the client of due process of law; (b) when application of the rule will result in outright deprivation of the client’s liberty or property or (c) where the interests of justice so require. The post The only brief that is long appeared first on Daily Tribune......»»

Category: lifestyleSource:  abscbnRelated NewsOct 5th, 2023

CA junks telco’s frequency plea, mandamus case vs. NTC

The Court of Appeals junked the petition for mandamus filed by NOW Telecom Company Inc. against the National Telecommunications Commission or NTC over the company's provisional authority or PA application to operate a cellular mobile telephone service within specific frequency ranges. In a 16-page decision, the appellate court's Special Ninth Division said "the court is powerless" to grant NOW Telecom's plea, especially since the company failed to show a clear legal right to the frequencies it sought. The CA said the decision, penned by Associate Justice Tita Marilyn B. Payoyo-Villordon and concurred in by Associate Justices Myra V. Garcia-Fernandez and Walter S. Ong, followed a careful examination of the case. The case began from NOW Telecom's request for NTC's automatic approval issued by the Anti-Red Tape Authority or ARTA. NOW Telecom had filed a petition for mandamus under Rule 65 of the Revised Rules of Court to compel the NTC and former Commissioner Gamaliel Asis Cordoba to stick to ARTA's resolution and OAA both dated 1 March 2021. These ARTA documents stated that NOW Telecom's application for a PA to operate in the frequency range 1970 Mhz-1980 Mhz paired with 2160 Mhz to 2170 Mhz and 3.6 GHz to 3.8 GHz frequency ranges was automatically approved by operation of law. It followed Republic Act 11032, otherwise known as the Ease of Doing Business and Efficient Government Service Delivery Act of 2018. However, an ARTA resolution dated 17 June 2022 reversed the previous decisions and formally recommended NOW Telecom's application for frequency assignment to the NTC. NOW Telecom's mandamus petition was notably based on its claim for the rights to specific frequency ranges, alleging that the NTC had unjustly neglected its duty to assign them. Yet, court records showed that as early as December 2005, NTC already found NOW Telecom to be non-compliant and was disqualified from the assignment of 3G frequency bands due to unpaid supervision and regulation fees or SRF and spectrum user fees or SUF amounting to P2.6 billion. NOW Telecom has a pending petition filed before the Supreme Court for this penalty imposed by the NTC. NOW Telecom received its PA in January 2006, but it was not specific to 3G and under the condition of paying its outstanding SRF and SUF obligations. In December 2017, NOW Telecom was designated the 20MHz contiguous bandwidth, 3520 to 3540 MHz, under the 3.5 GHz on the same condition that it resolved its outstanding SUF and SRF fines. NOW Telecom's Provisional Authority was extended until September 2020, but the NTC reiterated that the company failed to fulfill the conditions regarding SUF and SRF. Despite the issues hounding the company, NOW Corp. CEO Mel Velarde said he hopes the "Marcos administration" will aid the immediate settlement of its cases as a way of maintaining a "level playing field." _ The post CA junks telco’s frequency plea, mandamus case vs. NTC appeared first on Daily Tribune......»»

Category: lifestyleSource:  abscbnRelated NewsOct 3rd, 2023

CA junks hazing accused’s inhibition plea

The Court of Appeals has denied the plea of one of the accused in the fatal hazing of University of Santo Tomas freshman law student Horacio Castillo III seeking to compel   Regional Trial Court of Manila City Branch 20 acting presiding judge Shirley Magsipoc- Pagalilauan to inhibit from the case. In a 75-page decision promulgated on 22 September 2023 and written by Associate Justice Rafael Antonio Santos, the appellate court’s First Division held that the claim of Ralph Trangia that the judge acted with grave abuse of discretion in refusing to inhibit has no basis. The CA also did not give weight to Trangia’s claim the alleged failure of the judge to address the issues he raised in his demurrer to evidence shows that she would not be able to decide with utmost partiality. It added that after a careful review of the record of the case and the applicable laws and jurisprudence, it finds that petitioner failed to prove his allegation that the court committed grave abuse of discretion when it denied his motion for inhibition. “Rather it is evident that petitioner’s claim of bias and partiality is merely based on the denial of his Demurrer to Evidence, which in itself is not sufficient to prove that the court a quo acted with bias, bad faith, malice, or corrupt purpose,” said the CA’s decision. “For these reasons, the Court rules that petitioner miserably failed establish that the court a quo acted with manifest impartiality in issuing the assailed Orders,” it added. In denying Trangia’s demurrer, the Manila RTC in an order dated 4 February 2022 held that the evidence presented by the prosecution established all the elements of the offense of hazing as well as the presence and participation of all accused, including petitioner, during the hazing of Castillo by members of the Aegis Juris Fraternity. To recall, Trangia — one of the accused in the death of Castillo — has sought the inhibition of Pagalilauan at the CA on the ground of alleged partiality in denying his motion for demurrer evidence last 24 February 2022, which seeks the immediate dismissal of the case on the ground of insufficiency of evidence. On 10 March 2022, the respondent judge issued an order denying  Trangia’s motion prompting the latter to move for the reconsideration of the said order but the same was denied on 28 March 2022. This prompted Trangia to elevate his plea before the CA arguing that Pagalilauan committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying his motion for inhibition and the subsequent motion for reconsideration considering that she showed partiality in denying his demurrer to evidence despite clear showing that the prosecution failed to prove its case against him. The post CA junks hazing accused’s inhibition plea appeared first on Daily Tribune......»»

Category: lifestyleSource:  abscbnRelated NewsOct 1st, 2023

US federal judge, 96, suspended over ‘mental fitness’

The oldest US federal judge, at age 96, was suspended from her duties Wednesday over questions about her mental competency, in a case evoking the debate over elderly politicians like Joe Biden and Donald Trump. Pauline Newman, an appellate court judge since 1984, was accused by colleagues of working too slowly and of frequently appearing confused, agitated, and belligerent, which raised concerns of "disability," according to the ruling by the Judicial Council of the US Court of Appeals for the Federal Circuit. Interviews with staff "provided overwhelming evidence that Judge Newman may be experiencing significant mental problems including memory loss, lack of comprehension, confusion, and an inability to perform basic tasks," it said. Despite being given a reduced workload, Newman takes four times as long as other judges to issue opinions in cases before the court, it said. The council said that because Newman refused to accept being examined by a council-chosen neurologist and psychiatrist to judge her mental acuity, it was suspending her for one year, which could be extended if she still refused to cooperate. But Newman, who has been deprived of reviewing cases since April, has said the proceedings against her were conducted illegally and suggested they were the product of personal animosity from other judges. She backed her argument with the results of examinations by specialists she herself chose. "Judge Newman demonstrated no substantial emotional, medical, or psychiatric disability that would interfere with continuation of her longstanding duties as a judge," psychiatrist Regina Carney said. The case comes amid questions about the capabilities of an increasing number of elderly politicians -- President Joe Biden, 80, and rival Donald Trump, 77, among them -- to perform their duties. Born in 1927, Newman earned a PhD in chemistry from Yale and then became a patent law expert. In 1984 she was named to the Court of Appeals for the Federal Circuit, a special court dealing with patent laws and government contracts. The ruling against her noted she had been called "the heroine of the patent system." Her attorney, Gregory Dolin of the New Civil Liberties Alliance, said the review of her case was stacked against her. "The bottom line is that Judge Newman did not get due process," he told AFP. He said personal animosities as well as ageism factored into the case. "It's easy to say she's 96, she's past her prime, even if it's not true," Dolin said. "Whatever you might say about some politicians in Washington, Judge Newman is not in that group," he added. The post US federal judge, 96, suspended over ‘mental fitness’ appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsSep 20th, 2023

EMBOs, BGC belong to Pateros — Ponce

Not so fast, Taguig City. Hold off on the celebratory toasts and the victory cigars. Pateros Mayor Fernando Miguel “Ike” Ponce asserted yesterday that Taguig City cannot as yet celebrate a Supreme Court ruling that handed it control over the 10 so-called enlisted men’s barrios, or EMBOs. Likewise, the Cayetanos of Taguig should refrain from counting on the revenues the city could get from Bonifacio Global City after the SC stripped Makati City of control over it and the EMBOs. For Mayor Ponce, the EMBOs and BGC, built on military reservations that the national government allegedly took from the town decades back, belong neither to Taguig nor Makati but to Pateros. “Actually, in the oldest map that we hold, it’s clear that jurisdiction over BGC (and the EMBOs) lies with Pateros because they’re inside our town,” Ponce told Dyaryo Tirada’s digital show Hot Patatas on Friday. “That’s very clear from the original map,” he added in Filipino, stressing that they have strong evidence showing that the 10 EMBOs were in Pateros, which had original jurisdiction up to the foot of Guadalupe Bridge straddling the boundary of Mandaluyong City. He said their proof would support their entitlements to BGC, the EMBOs, and the areas near Guadalupe. “That (Guadalupe) would be inside our boundaries (based on the original map),” he asserted.   1800s onward Ponce said that dating back to the 1800s, Pateros had a land area of 1,040 hectares based on official government data, including from the agency that preceded the Philippine Statistics Authority. “Even if you go now to the PSA, they’ll certify our land area to be 1,040 hectares,” the mayor pointed out. “If we go back through history, from the 1800s up to the present, you will see the actual areas of Pateros.” He said the town’s land area had been fluctuating since then from 1,040 hectares to 983 hectares and then 843 hectares. “If you would believe it, our land area now in Pateros is only 168 hectares,” he lamented. Ponce said that from 1,040 hectares, Pateros’ land area shrunk to 168 hectares because the national government converted their territory into a military reservation, starting Taguig’s efforts to take Pateros’ land. When the military reservations were returned, they were not given back to their “rightful owner, Pateros,” the mayor said. He said the Armed Forces of the Philippines, which used the military reservations, and the Office of the President, as the representative of the national government, should have returned the land to Pateros. “Yes, that’s true. Let’s include the national government as represented by the Office of the President,” he said, explaining that a proclamation by then-President Ferdinand Marcos Sr. opened the military reservations to public disposition but erroneously identified the areas as belonging to the then-town of Makati. “That’s the proclamation that both Pateros and Taguig wanted to nullify,” he said, referring to Proclamation 2475, signed by Marcos Sr. in January 1986, which stated that Fort Bonifacio “is situated in Makati and it is open for disposition.”   Fight with Taguig Because of that proclamation, Makati, Taguig, and Pateros had a boundary dispute dating back to the 1990s when Pateros sought the return of the land that belonged to it, Ponce said. Among the EMBOs are Comembo, Pembo, East Rembo, West Rembo, Cembo, South Cembo, Pitogo and Rizal, which became part of Makati and BGC (known then as Post Proper Northside and Post Proper Southside of Makati; and Mamanca, Masilang, San Nicolas and Malapad Na Bato belonging to Pateros). Ponce said all of the facts can be gleaned from the documents and official maps secured by former Pateros Councilor Dominador Rosales from libraries and agencies, including the US Library of Congress and American archives. Among the documents is the 1968 Land Classification Map of the Bureau of Land, which is central to the case filed by Pateros against Taguig that has remained pending in the Supreme Court. “As the land that had been awarded to Taguig and Makati is already out of the issue, we are now concentrating on our fight with Taguig,” Ponce said. “Our case is very much alive, and Taguig has filed a motion for reconsideration. I believe their motion would not amount to anything because all they have are rehashed arguments,” the mayor added. Pateros is the only town among the 16 cities comprising Metro Manila or the National Capital Region. Pateros’ history and land are so intertwined with Taguig that they share a common representative in Congress. The post EMBOs, BGC belong to Pateros — Ponce appeared first on Daily Tribune......»»

Category: lifestyleSource:  abscbnRelated NewsSep 8th, 2023

Handwritten letters a lifeline in war-devastated Darfur

With no cell service or phone calls, people in Sudan's war-ravaged western region of Darfur are resorting to a bygone means of communication: handwritten letters, carried by taxi drivers. Ahmed Issa, 25, sits on a plastic chair in a roadside cafe, penning a message to relatives he left behind in Nyala, the capital of South Darfur state. In the safety of El Daein, 150 kilometers (93 miles) southeast, he told AFP the letters are often the only way to get news in and out of his hometown, the second-biggest city in Sudan and the site of brutal battles between the regular army and the paramilitary Rapid Support Forces. "Even at the start of the fighting, it was hard to get in touch with people in other neighborhoods inside Nyala," he said, nearly five months after the war began. The situation has only grown worse since, with horrific violence reported across Darfur, a region the size of France that is home to around a quarter of Sudan's 48 million people. They remember all too painfully the years-long war and atrocities that began in 2003. Hundreds of thousands were killed and more than two million displaced after the government of Omar al-Bashir unleashed the Janjaweed militia in response to a rebel uprising. Hunched forward in a black patterned shirt and a neat crew cut, Issa carefully folds his letter over and over. "You wait a week for the letter to arrive, and you don't know for sure if they'll get it," he told AFP. "And if they do, there's no guarantee they can send one back" through the treacherous roads in and out of Nyala. Three months ago, the West Darfur state capital of El Geneina seemed to be the nucleus of the fighting, becoming a symbol of the return of ethnic violence in Darfur. Western countries and the UN linked the violence to the RSF and its allies. It triggered the International Criminal Court to open a new investigation into alleged war crimes. Now Nyala is the centre of clashes between the army and the RSF. On one day last week 39 civilians, most of them women and children, were killed when shelling hit their homes in Nyala, medics and witnesses said. Over 10 days in August, more than 50,000 people fled Nyala's violence, according to the United Nations. Water and electricity networks quickly failed, compounding threats in a city where one in four people already needed humanitarian aid before the war, the UN said. The messenger Residents on Sunday looked up to see a new escalation of the violence: Air Force fighter jets -- whose strikes have been largely limited to the capital Khartoum -- were flying overhead. Their bombs struck both RSF bases and the residential neighborhoods they inhabit, witnesses told AFP. People will do anything to make sure their loved ones are alright, according to human rights defender Ahmed Gouja, who left Nyala but is trying to inform the world of the gruesome violence unfolding. Last week, he reported on Twitter, which is being rebranded as X, that five entire families were "killed in one day". He himself spent 16 days "with no info" about his family in Nyala, before finally reaching "one of my brothers who arrived at El Daein, searching for an internet signal". "We die every moment that passes while we are deprived" of news of loved ones, he wrote. For weeks, Suleiman Mofaddal has seen families like Gouja's walk through his El Daein office, a small room with yellow walls, anxious for news of those who cannot or refuse to leave their homes in Nyala. On his desk sits a pile of small, neatly folded paper rectangles, each with a name scrawled in blue ink. Some have a phone number, just in case the recipient gets cell service for even a moment. All wait to be handed to drivers on Mofaddal's team, who will carry the letters on their way to Nyala. "Most often, the recipient immediately writes a response and hands it back to the driver before he leaves," Mofaddal told AFP. Then the driver heads back out, hoping the road ahead won't be closed -- by either the bombs, militia checkpoints, or the downpours of Sudan's rainy season. The post Handwritten letters a lifeline in war-devastated Darfur appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsSep 6th, 2023

The power of eminent domain

Stripped of all the legal technicalities, the power of eminent domain is the right of the State to take one’s property and use it for public purpose upon payment of just compensation, even against the will of its owner. While primarily lodged with Congress, this power may also be delegated to local government units, other public entities, and public utility corporations, albeit much more restrictive in the sense that compliance with the limitations of the delegating law is a must for the exercise of the power to be held valid. Essentially, the exercise of the power of eminent domain has two stages namely: First, the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in accordance with the surrounding facts; and second, that the taking of the land be subject to payment of just compensation. Once both requirements have been satisfied, the Court may issue a writ of possession without even conducting a hearing on the merits of the case. In view of this, is the issuance of a writ of possession a ministerial duty on the part of the trial court upon the filing of the complaint and payment of the deposit money? Answering in the negative, the Supreme Court in the case of Iloilo Grains v. Hon. Enriquez Gaspar (G.R. 265153, 12 April 2023) explained that in cases where there is a question on whether the entity exercising the right to expropriate does so in conformity with its delegating law, the same should be heard and determined first by the court pursuant to its vested authority. In this case, the expropriating entity is the National Grid Corporation of the Philippines or NGCP which was vested by the right of eminent domain under Republic Act 9511. Notably, one of the conditions under NGCP’s franchise is the need for prior approval by the Energy Regulatory Commission or ERC of any plan for expansion or improvement of the facilities of TransCo. The Supreme Court emphasized that in expropriation cases, questions regarding the validity of the exercise of the power of eminent domain which primarily pertains to its necessity must first be resolved before the court may even tackle the issue of the propriety of just compensation. Furthermore, in cases where such power is merely delegated as in this case, it is imperative to ensure that the exercise of such right conforms with the delegating law. Lastly, it must also be shown that the complaint is sufficient not just in terms of form but more importantly, in terms of the substance of its allegations. Pursuant to this, the Court has laid down the following criteria used to determine the sufficiency of a complaint namely: (1) That the property taken must be private property; (2) there must be genuine necessity to take the private property; (3) the taking must be for public use; (4) there must be payment of just compensation; (5) and the taking must comply with due process. Lastly, for entities exercising a mere delegated power of expropriation, there is a need to demonstrate possession of the authority to exercise such power of expropriation. Applying the foregoing to the present case, the Supreme Court held that the failure of NGCP to allege in its complaint that it had secured the required ERC approval for the projects that were used as the basis of the expropriation proceedings as well as NGCP’s failure to choose the portion that is least burdensome to the landowner rendered the complaint insufficient in substance. Accordingly, a hearing must first be conducted to resolve these matters as they essentially hinge on the issue of necessity vis-a-vis the expropriator’s compliance with the statutory requirements for a valid exercise of the power of eminent domain. In essence, courts should not issue a writ of possession if the very authority of the plaintiff is in question.     For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cabdo@ The post The power of eminent domain appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsSep 3rd, 2023

Correct me if I’m wrong: SALN and second chances

SALN which stands for Statements of Assets, Liabilities and Net Worth has become a familiar term in Philippine society. From the campaign of public officials to the confirmation of presidential appointees and impeachment of Justices, SALN has found its way creeping into various political controversies. Under Section 8 of Republic Act 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, public officials and employees are mandated to file sworn SALNs. In the recent case of Jessie Carlos v. Department of Finance — Revenue Integrity Protection Service et al. (G.R. 225774, 18 April 2023), the Supreme Court revisited the procedure before any public official or employee can be held accountable for errors or omissions in, or non-submission of, their SALNs. In this case, a public employee was dismissed for dishonesty after failing to disclose real properties, motor vehicles, business interests, and liabilities in his SALN. He pleaded for reversal from the Supreme Court claiming good faith and deprivation of due process since he was never granted the opportunity to rectify his alleged omission or mistakes. Ruling in favor of the public employee, the Supreme Court reiterated the review and compliance procedure under Section 10 of RA 6713 which institutes a mechanism for review and rectification of errors with respect to: (1) failure to submit SALNs on time; and (2) incomplete SALNs, and formally defective SALNs. According to the High Court, the foregoing procedure is mandatory hence any concerned public official or employee cannot be subjected to disciplinary action without having been granted a non-extendible period of 30 days to perform corrective action. Only in case of failure can such an official or employee be held accountable. Accordingly, without compliance with the foregoing procedure, no violation shall arise. Consequently, no liability for failure to file, or for omissions or errors in SALNs will be attached. In fact, it is the head of an office who omitted to comply with the foregoing mechanism who can be held accountable for simple neglect of duty. By so ruling, the Supreme Court expressly abandoned its previous pronouncements maintaining the jurisdiction of the Office of the Ombudsman in prosecuting officials for non-submission or omissions/errors in their SALNs independently of the head of concerned agencies. While it recognized that the duty to conduct the review and compliance procedure is vested to the heads of agencies, the Supreme Court nevertheless points out that the Office of the Ombudsman cannot prosecute the concerned official if the latter was not afforded by the head of concerned office/agency the opportunity to rectify the alleged errors or omissions. It must be stressed that the recent pronouncement of the Supreme Court does not aim to tolerate the concealment of ill-gotten wealth. On the contrary, it puts focus on the real evil — the accumulation of ill-gotten wealth. Strict compliance with the review and compliance procedure allows the government to weed out simple, correctible errors from actually deliberate, sinister attempts to conceal ill-gotten wealth. After all, what the law seeks to curtail is the “acquisition of unexplained wealth.” Where the source of the undisclosed wealth can be properly accounted for, then it is “explained wealth” which the law does not penalize. Taken together, the law and rules establish a robust mechanism for the review of SALNs. The objective behind identifying non-submissions of, or omissions and errors in SALNs is to address them. After all, the intention is for a more complete disclosure. In sum, public officials and employees are likewise entitled to second chances at SALNs. It is only when they still fail to comply after being granted the opportunity to correct, complete, and submit their SALNs that can they be held accountable for any errors or omissions therein, or non-submission thereof. For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cabdo@divinalaw.com. The post Correct me if I’m wrong: SALN and second chances appeared first on Daily Tribune......»»

Category: sportsSource:  abscbnRelated NewsAug 31st, 2023

Road rage trending

With horrendous traffic comes pent-up anger, manifesting in violent outbursts also known as “road rage,” something we are seeing more often now. The FIBA basketball tournament caused several road closures, expanded bus lanes on EDSA, and instituted stop-and-go schemes to give way to team buses and coasters. Inconvenienced motorists must adjust to this global tournament, which has led to irate and impatient heads. We are only aware of what is captured by CCTVs and mobile phone cameras, but we can be certain that this is just a thin slice of a larger pie. Luckily, no lives have been lost, and neither has anybody been injured, with all the road rage occurring daily. We have several factors to blame, such as the poor transport infrastructure, the high number of vehicles on the road, incompetent driving skills, and selective traffic enforcement. In the end, it is the motorist who must bear the stress of driving. I spent the last (long) weekend in Ho Chi Minh City, Vietnam, and the traffic there can be likened to Manila. The stark distinction lies in the discipline of the riders. In that city, you will see more motorcycles than four-wheel vehicles. That is why the buildings there are very narrow and functional, without garages for four-wheelers. There are wide sidewalks where people can walk safely. A horde of motorcycle riders does not feel like a threat in Vietnam — they move around like a school of fish, in rhythm and sync with each other. Of course, there will always be a few rowdy ones, but most of them are disciplined in their speed and maneuvering. In the Philippines, we have motorcycle riders going in all directions at the fastest speeds possible. Our motorcycle riders deliberately try to sneak into every nook and cranny between cars and trucks. There is no sense of spatial distancing for our motorists when it comes to driving on the road, especially during rush hour. This leads to accidents and road rage. Nowadays, you cannot afford to lose your cool in public, thanks to mobile phones and social media. If humiliating footage of you is taken, in minutes it will be uploaded on Facebook, and within hours you will be in the news and vloggers will be giving their two centavos on the issue. With the recent footage of the retired cop in Quezon City, we saw how the public can crucify these individuals even before the benefit of a fair trial, although we can argue that there was nothing the retired cop could do or say in his own defense. The handling of the issue was pathetic on the part of the PNP. Why would you grant the retired cop an audience via a press conference, when other similarly situated suspects are placed in a jail cell? The cop, it turned out, had even been dismissed earlier for dubious reasons, but despite this, he was armed with a handgun and was even employed in the Supreme Court. Kudos to the public officers who spoke up on the issue, especially Senator JV Ejercito and Quezon City Mayor Joy Belmonte. I am also most thankful for public interest lawyer, Atty. Raymond Fortun, immediately came forward to lead the prosecution of the retired cop, despite the victim cyclist’s refusal to file a case against the retired cop. This is the sad reality of our societal system — victims choose not to come out due to fear for their own and their families’ safety. We hope and pray to see progress in this case so that it can be prevented from happening again. For comments, email him at darren.dejesus@gmail.com The post Road rage trending appeared first on Daily Tribune......»»

Category: sportsSource:  abscbnRelated NewsAug 31st, 2023

Void ownership, void contract

Rebecca Fullido and Gino Grilli, an Italian, were sweethearts. Eventually, they maintained a common-law relationship. In time, Gino bought a lot for them and had a house built on it. Gino, being a foreigner prohibited from purchasing real estate, and the title to the land was put in the name of Rebecca. But to ensure his right over it, they entered into an agreement whereby Gino leased the property from Rebecca for fifty years, subject to an automatic renewal for a like period. In addition, they entered into an agreement where Gino, among others, denied Rebecca the right to dispose of the property and that her hold on to it would be a co-terminus with their relationship. The time came when their relationship went sour. Parties traded accusations of unfaithfulness against each other. Court actions ensued. Rebecca filed for a protection order against Gino under the Violence Against Women and Children Law or VAWC. Gino filed for the ejectment of Rebecca from their land. In the ejectment case, the court sided with Rebecca. It said that she could not be ousted because she was a co-owner. The court also considered the protection order issued by another court against Gino. On appeal, the Regional Trial Court opined that the action filed by Rebecca against Gino had no bearing on the ejectment case. And since the only issue in the ejectment case is who has a better right to possession, the court sided with Gino citing the presence of a valid and existing lease in his favor. On appeal, the Court of Appeals affirmed the finding of the appealed court. Rebecca, undaunted, went to the Supreme Court. She posited that Gino had no right over the property. For one, he is a foreigner prohibited by the Constitution from owning land. And another, the contract the parties entered into had no effect whatsoever as Gino had no right to own land in the first place. To this issue, the Supreme Court ruled, “Under Section 1 of Article XIII of the 1935 Constitution, natural resources shall not be alienated, except with respect to public agricultural lands, and in such cases, the alienation is limited to Filipino citizens. xxx xxx The prohibition on the transfer of lands to aliens was adopted in the present 1987 Constitution, under Sections 2, 3, and 7 of Article XII thereof. Agricultural lands, whether public or private, include residential, commercial, and industrial lands. The purpose of prohibiting the transfer of lands to foreigners is to uphold the conservation of our national patrimony and ensure that agricultural resources remain in the hands of Filipino citizens. “The prohibition, however, is not limited to the sale of lands to foreigners. It also covers leases of lands amounting to the transfer of all or substantially all the rights of dominion. In the landmark case of Philippine Banking Corporation v. Lui She, the Court struck down a lease contract of a parcel of land in favor of a foreigner for a period of 99 years with an option to buy the land for 50 years. “Where a scheme to circumvent the Constitutional prohibition against the transfer of lands to aliens is readily revealed as the purpose for the contracts, then the illicit purpose becomes the illegal cause rendering the contracts void. Thus, if an alien is given not only a lease of, but also an option to buy, a piece of land by virtue of which the Filipino owner cannot sell or otherwise dispose of his property, this to last for 50 years, then it becomes clear that the arrangement is a virtual transfer of ownership whereby the owner divests himself in stages not only of the right to enjoy the land but also of the right to dispose of it — rights which constitute ownership. “If this can be done, then the Constitutional ban against alien landholding in the Philippines is indeed in grave peril. Based on the above-cited constitutional, legal, and jurisprudential limitations, the Court finds that the lease contract and the MoA in the present case are null and void for virtually transferring the reigns of the land to a foreigner. xxx xxx “Evidently, the lease contract and the MoA operated hand-in-hand to strip Fullido of any dignified right over her own property. The term of lease for 100 years was obviously in excess of the allowable periods under PD No. 471. xxx xxx The title of Fullido over the land became an empty and useless vessel, visible only on paper, and was only meant as a dummy to fulfill a foreigner’s desire to own land within our soils. It is disturbing how these documents were methodically formulated to circumvent the constitutional prohibition against land ownership by foreigners. “The said contracts attempted to guise themselves as a lease, but a closer scrutiny of the same revealed that they were intended to transfer the dominion of a land to a foreigner in violation of Section 7, Article XII of the 1987 Constitution. Even if Fullido voluntarily executed the same, no amount of consent from the parties could legalize an unconstitutional agreement. The lease contract and the MoA do not deserve an iota of validity and must be rightfully struck down as null and void for being repugnant to the fundamental law. These void documents cannot be the source of rights and must be treated as mere scraps of paper.” The facts and the quoted salient portion of the decision are from Rebecca Fullido vs Gino Grilli (G.R. 215014, 29 February 2016) The post Void ownership, void contract appeared first on Daily Tribune......»»

Category: newsSource:  tribuneRelated NewsAug 27th, 2023