Supreme Court Decision: Disability Compensation for Overseas Seafarers.
SECOND DIVISION
G.R. No. 159887
BERNARDO REMIGIO, Petitioner,
-versus-
NATIONAL LABOR RELATIONS COMMISSION, C.F. SHARP CREW MGT., INC. & NEW COMMODORE CRUISE LINE, INC.,
Respondents.
Promulgated: April 12, 2006
DECISION
PUNO, J.:
Before us is a petition for review on certiorari seeking the reversal of the decision and resolution of the Court of Appeals (CA) in CA-G.R. No. 67782 which affirmed the March 22, 2001 Resolution4 of the National Labor Relations Commission (NLRC), awarding sickness allowance of US$3,400.00 to petitioner but denying his claim for disability benefits.
The facts are undisputed.
On November 27, 1997, petitioner Bernardo Remigio entered into a Contract of Employment with respondent C.F. Sharp Crew Manage-ment, Inc. (respondent agency), for and in behalf of its foreign principal, co-respondent New Commodore Cruise Line, Ltd. (respondent principal).
The contract provided that the terms and conditions of the standard employment contract governing the employment of all seafarers, approved per Department of Labor and Employment’s Department Order No. 33 and the Philippine Overseas Employment Administration’s Memorandum Circular No. 55, both Series of 1996 (1996 POEA SEC), were to be strictly and faithfully observed.
Under the contract, petitioner was to work as Musician II on board SS “Enchanted Isle,” a vessel owned and operated by respondent principal, for ten (10) months, at a basic monthly salary of US$857.00, overtime rate of US$257.00 per month and vacation leave with pay of three (3) days per month.
After petitioner passed the pre-employment medical examination, he joined the vessel and started performing his job as a drummer in December 1997.
On March 16, 1998, while the vessel was docked at the port of Cancun, Mexico, petitioner went ashore to attend to some personal matters.
While walking, petitioner suddenly felt severe chest pain and shortness of breath. He returned to the vessel and experienced another such episode on the same evening. When his chest pain recurred the following day, he went to the vessel’s infirmary where he again suffered from chest pain.
Petitioner was brought and confined for seven (7) days at the Grand Cayman Island Hospital. His pain worsened upon physical exertion but improved with rest. Thus, he was instructed to refrain from performing any kind of physical activity and to have a complete bed rest.
He rejoined the vessel on March 24, 1998.
Upon the vessel’s arrival at the port of New Orleans, Louisiana, U.S.A., petitioner was brought to the West Jefferson Medical Center for a more thorough check-up and evaluation. Dr. S. Kedia’s “impression” was that petitioner’s chest pains were “probable secondary to severe coronary artery disease.” Dr. Armengol Porta conducted a physical examination on petitioner, including a coronary angiogram, and found that he had several blockages in his coronary arteries.
A triple coronary artery bypass was performed on petitioner on April 2, 1998 by a Dr. Everson. On April 8, 1998, petitioner was transferred to the Marine Medical Unit for observation. After twelve (12) days of confinement, petitioner’s cardiologist found him “not fit for sea duty” and recommended for him to be “[r]epatriated to home port for follow up with a cardiologist.”
He was repatriated to Manila on April 23, 1998. In a letter dated April 27, 1998, Henry P. Desiderio, the manager of the Crewing Administration and Business Development Department of respondent agency, referred petitioner to the American Outpatient Clinic for medical check-up.
On May 13, 1998, petitioner, through counsel, sent a formal communication to respondent agency demanding payment of unpaid wages, sickness allowance and permanent total disability benefits.
The demand, however, was refused.
In a letter dated June 25, 1998 addressed to the manager of respondent agency, Jose Enrique P. Desiderio, the company-designated physician, Dr. Leticia C. Abesamis, of the American Outpatient Clinic wrote, viz:
Mr. B. Remigio who had Coronary Bypass (6x) abroad last April 2, 1998 has completed his cardiac rehabilitation here at the Phil. Heart Center. Stress done on June 23, 1998 shows functional capacity at 8 METS.
Lately he has been complaining of epigastric discomfort probably from Ecotrin. He has been on ulcer regimen. He may go back to sea duty as piano player or guitar player after 8-10 more months.
He was unfit from April 27, 1998 to June 25, 1998.12 (emphases supplied)
On November 12, 1998, petitioner filed the instant complaint for (a) recovery of permanent total disability benefits amounting to US$60,000.00; (b) actual and compensatory damages for loss of earning capacity in the amount of US$154,260.00; and (c) moral and exemplary damages and attorney’s fees.
Private respondents made an offer to settle the case at US$30,000.00 as evidenced by fax letters, to which petitioner made a counter-proposal of US$40,000.00.
No agreement was reached as the parties proceeded to submit their respective position papers and supporting evidence.
In support of his claims, petitioner submitted copies of:
a) his Contract of Employment with private respondents; b) communication of respondent principal to respondent agency informing the latter about petitioner’s “heart attack,” repatriation and replacement;
c) History and Physical Report of petitioner and Procedure Report of his cardiac catheterization;
d) receipts from a drugstore and the Philippine Heart Center; e) 2D Echocardiogram-Color Doppler Report; f) filled up form of the Exercise Testing and Cardiac Rehabilitation Laboratory of the Philippine Heart Center showing the results of the tests done on petitioner; and
g) the Discharge Summary of the Marine Medical Unit.
On the other hand, private respondents submitted copies of:
a) the Contract of Employment;
b) referral letter dated April 27, 1998 of respondent agency to the American Outpatient Clinic;
c) demand letter dated May 13, 1998 of petitioner’s counsel; and d) medical report of Dr. Leticia C. Abesamis of the American Outpatient Clinic addressed to the manager of respondent agency.
On September 15, 1999, Labor Arbiter Manuel R. Caday rendered his decision, the dispositive portion of which states:
WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents jointly and severally to pay complainant, his sickness allowance in the amount of US$3,400.00.
All other claims are hereby dismissed for lack of merit.
SO ORDERED.
In ruling that petitioner is not entitled to disability benefits, Labor Arbiter Caday noted that the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC does not provide for the payment of compensation benefits in cases of cardiac catheterization or heart bypass.
Even assuming that it was included, he held that no medical report was presented to show that petitioner’s disability was total and permanent as to be classified under Grade 1 of the said schedule of disability. Nonetheless, petitioner’s claim for sickness allowance was granted as there was no showing that private respondents paid petitioner’s basic wages after his repatriation, as provided under Section 20, B(3) of the 1996 POEA SEC.
Petitioner was awarded US$3,400.00 as sickness allowance, computed on the basis of his monthly wage of US$850.00 multiplied by four (4) months.
On appeal by petitioner, the NLRC affirmed the decision of the Labor Arbiter in toto. Petitioner filed a motion for reconsideration of the NLRC’s resolution, to no avail.
Accordingly, he filed a petition for certiorari with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order with the CA.
On March 31, 2003, the CA dismissed the petition.
The CA likewise did not find substantial evidence to prove that the heart ailment incurred by petitioner during the term of his employment resulted to his disability, i.e., rendered him incapable of further seeking employment as a musician or to follow a substantially gainful occupation.
It noted that petitioner’s medical records abroad never mentioned that his heart ailment resulted to a disability. Petitioner’s reliance on Dr. Abesamis’s letter dated June 25, 1998 that he (petitioner) was “unfit from April 27, 1998 to June 25, 1998” was found as insufficient to prove that petitioner’s earning capacity was either lost or diminished.
The statement that petitioner “may go back to sea duty as piano player or guitar player after 8-10 more months” was likewise found as insufficient to prove that petitioner was actually “sidelined” or that it was impossible for him to work and earn as a musician during the 8-10 months that he was not on board the vessel.
Finally, it considered that heart ailment is not included among the compensable sicknesses and injuries under the 1996 POEA SEC.
Petitioner’s motion for reconsideration with the CA was denied. Hence, this petition in which petitioner prays that he be awarded US$60,000.00 as permanent total disability benefits, US$3,428.00 as sickness allowance, attorney’s fees and costs of suit.
He assigns as lone error, the following:
THE DECISION OF THE HONORABLE COURT OF APPEALS DISMISSING PETITIONER’S PETITION FOR CERTIORARI AND AFFIRMING IN TOTO THE HONORABLE PUBLIC RESPONDENT AND DENYING PETITIONER’S MOTION FOR RECONSIDERATION IS CONTRARY TO LAW.
The main issue is whether petitioner is entitled to permanent total disability benefits.
At the outset, private respondents’ contention that the instant petition must be dismissed outright for being grounded on a question of fact must be rejected.
The issue of whether petitioner is entitled to permanent total disability benefits is a question of law as it calls for the correct application of the law and jurisprudence on disability benefits to the established facts on record.
It raises the following sub-issues, to wit:
1. Whether heart ailment suffered during the term of the contract is compensable under the 1996 POEA SEC even if there is no proof of work-connection; and
2. Whether the concept of permanent total disability under the Labor Code applies to the case of a seafarer’s claim for disability benefits under the 1996 POEA SEC.
First. In ruling that petitioner is not entitled to permanent total disability benefits, the Labor Arbiter and the CA considered that “cardiac catheterization,” “heart bypass,” or “heart ailment” is not found in the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC. Petitioner contends that the schedule of disability under Section 30 of the 1996 POEA SEC is not exclusive.
Heart ailment, though not listed in the schedule, is compensable. Private respondents, on the other hand, concede that while petitioner’s illness is not listed under the 1996 POEA SEC, “this does not mean that the same is not compensable.”26 However, since “heart ailment” is not listed under Section 30 of the 1996 POEA SEC, it is not an “occupational disease.”
It was therefore incumbent upon petitioner to prove by substantial evidence that his illness was work-related. Having failed to do so, he is not entitled to disability benefits.
We find merit in petitioner’s argument.
Petitioner bases his claim for disability benefits under Section 20 in relation to Sections 30 and 30-A of the 1996 POEA SEC, viz:
Sec. 20. Compensation and Benefits
x x x
B. Compensation and Benefits for Injury or Illness
The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows:
x x x
5. In case of permanent total or partial disability of the seafarer during the term of employment caused by either injury or illness[,] the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 30 of [t]his Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted.
Sec. 30. SCHEDULE OF DISABILITY OR IMPEDIMENT FOR INJURIES SUFFERED AND DISEASES OR ILLNESS CONTRACTED
x x x
CHEST-TRUNK-SPINE
1. Fracture of four (4) or more ribs resulting to severe limitation of chest expansion - Gr. 6
2. Fracture of four (4) or more ribs with intercostal neuralgia resulting in moderate limitation of chest expansion - Gr. 9
3. Slight limitation of chest expansion due to simple rib functional without myositis or intercostal neuralgia - Gr. 12
4. Fracture of the dorsal or lumber spines resulting to severe or total rigidity of the trunk or total loss of lifting power of heavy objects - Gr. 6
5. Moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk - Gr. 8
6. Slight rigidity or one third (1/3) loss of motion or lifting power of the trunk - Gr. 11
7. Injury to the spinal cord as to make walking impossible without the aid of a pair of crutches - Gr. 4
8. Injury to the spinal cord as to make walking impossible even with the aid of a pair of crutches - Gr. 1
9. Injury to the spinal cord resulting to incontinence of urine and feces - Gr. 1
x x x
NOTE: Any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability.
Sec. 30-A.
SCHEDULE OF DISABILITY ALLOWANCES
Impediment Grade Impediment
1 Maximum Rate x 120.00%
2 Maximum Rate x 88.81%
3 Maximum Rate x 78.36%
4 Maximum Rate x 68.66% 5 Maximum Rate x 58.96% 6 Maximum Rate x 50.00% 7 Maximum Rate x 41.80% 8 Maximum Rate x 33.59% 9 Maximum Rate x 26.12% 10 Maximum Rate x 20.15% 11 Maximum Rate x 14.93% 12 Maximum Rate x 10.45% 13 Maximum Rate x 6.72% 14 Maximum Rate x 3.74%
Maximum Rate: US$50,000
To be paid in Philippine Currency equivalent at the exchange rate prevailing during the time of payment. (emphases supplied)
“Disability” is generally defined as “loss or impairment of a physical or mental function resulting from injury or sickness.” Clearly, “disability” is not synonymous with “sickness” or “illness,” the former being a potential effect of the latter.
The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted. It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC, nowhere in the 1996 POEA SEC is there a list of “Occupational Diseases.”
The unqualified phrase “during the term” in Section 20(B) of the 1996 POEA SEC covers all injury or illness occurring in the lifetime of the contract. The injury or illness need not be shown to be work-related. In Sealanes Marine Services, Inc. v. NLRC, we categorically held:
The argument of petitioners that since cancer of the pancreas is not an occupational disease it was incumbent upon Capt. Arante to prove that his working conditions increased the risk of contracting the same, is not meritorious.
It must be noted that his claims arose from the stipulations of the standard format contract entered into between him and SEACORP which, per Circular No. 2, Series of 198430 of respondent POEA was required to be adopted and used by all parties to the employment of any Filipino seamen (sic) on board any ocean-going vessel.
His claims are not rooted from the provisions of the New Labor Code as amended. Significantly, under the contract, compensability of the death or illness of seam[e]n need not be dependent upon whether it is work connected or not. Therefore, proof that the working conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the term thereof by reason of such disease or illness, of the benefits stipulated thereunder which are, under Section C(2) of the same Circular No.
2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to under Philippine laws. (emphasis supplied)
This principle was reiterated in the recent case of Seagull Shipmanagement and Transport, Inc. v. NLRC.
While indeed, the Labor Code’s provisions on disability benefits under the Employees’ Compensation Commission (ECC) require the element of work-relation for an illness to be compensable, the 1996 POEA SEC giving a more liberal provision in favor of the seafarer must apply.
As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties.
In controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former’s favor.
The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, in consonance with the avowed policy of the State to give maximum aid and protection of labor.
Second. Is the Labor Code’s concept of permanent total disability applicable to the case at bar? Petitioner claims to have suffered from permanent total disability as defined under Article 192(c)(1) of the Labor Code, viz:
Art. 192 (c) The following disabilities shall be deemed total and permanent:
(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules; x x x
Petitioner likewise cites Vicente v. ECC35 and Abaya, Jr. v. ECC, both of which were decided applying the Labor Code provisions on disability benefits. Private respondents, on the other hand, contend that petitioner erred in applying the definition of “permanent total disability” under the Labor Code and cases decided under the ECC as the instant case involves a contractual claim under the 1996 POEA SEC.
Again, we rule for petitioner.
The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to “secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith” and to “promote and protect the well-being of Filipino workers overseas.”
Section 29 of the 1996 POEA SEC itself provides that “[a]ll rights and obligations of the parties to [the] Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory.”
Even without this provision, a contract of labor is so impressed with public interest that the New Civil Code expressly subjects it to “the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.”
Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers. In Philippine Transmarine Carriers v. NLRC, seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by the company-accredited physician.
The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC42 that “disability should not be understood more on its medical significance but on the loss of earning capacity.
Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do. It does not mean absolute helplessness.”
It likewise cited Bejerano v. ECC, that in a disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.
The same principles were cited in the more recent case of Crystal Shipping, Inc. v. Natividad.
In addition, the Court cited GSIS v. Cadiz45 and Ijares v. CA46 that “permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.”
Finally.
Applying the Labor Code concept of permanent total disability to the facts on record, is petitioner entitled to permanent total disability benefit?
Petitioner contends that the certification of the company-designated physician that he may go back to sea duty as a piano or guitar player after 8-10 months even if his job was a drummer proves that he suffered from permanent total disability and thus entitled to permanent total disability benefits of US$60,000.00 under the 1996 POEA SEC.
Private respondents, on the other hand, contend that:
1) petitioner did not present any proof that he suffered from permanent total disability, i.e., that his earning power is now reduced and that he is incapable of performing remunerative employment;
2) petitioner did not present any medical certificate showing that he suffered any disability;
3) on the contrary, the company-designated physician attested that petitioner could return to further sea duty;
4) even if he could not go back to sea duty, this does not mean that his earning capacity is impaired since as a musician, he may still perform on land; and
5) having admitted that he was a heavy smoker, petitioner is disqualified under Section 20(d) of the 1996 POEA SEC from recovering compensation for any incapacity or disability he suffered.
There are three kinds of disability benefits under the Labor Code, as amended by P.D. No. 626: (1) temporary total disability, (2) permanent total disability, and (3) permanent partial disability. Section 2, Rule VII of the Implementing Rules of Book V of the Labor Code differentiates the disabilities as follows:
Sec. 2. Disability.
(a) A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules.
(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X47 of these Rules.
(c) A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body. (emphasis supplied)
In Vicente v. ECC:
x x x the test of whether or not an employee suffers from ‘permanent total disability’ is a showing of the capacity of the employee to continue performing his work notwith-standing the disability he incurred.
Thus, if by reason of the injury or sickness he sustained, the employee is unable to perform his customary job for more than 120 days and he does not come within the coverage of Rule X of the Amended Rules on Employees Compensability (which, in more detailed manner, describes what constitutes temporary total disability), then the said employee undoubtedly suffers from ‘permanent total disability’ regardless of whether or not he loses the use of any part of his body. (emphases supplied)
A total disability does not require that the employee be absolutely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue her usual work and earn therefrom.
On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days.
Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad, we held:
Permanent disability is inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.
Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.
It does not mean absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.
Applying the foregoing standards, we find that petitioner suffered from permanent total disability.
It is undisputed that petitioner started to suffer chest pains on March 16, 1998 and was repatriated on April 23, 1998 after having been found as “not fit for duty.”
The medical report dated June 25, 1998 of the company-designated physician, Dr. Abesamis, establishes the following facts, viz:
a) petitioner underwent a coronary bypass on April 2, 1998; b) petitioner was “unfit” from April 27, 1998 (date of referral) to June 25, 1998 (date of medical report);
c) petitioner may not return to sea duty within 8-10 months after June 25, 1998; and d) petitioner may return to sea duty as a piano or guitar player after 8-10 months from June 25, 1998.
These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998.
This, by itself, already constitutes permanent total disability. What is more, private respondents were well aware that petitioner was working for them as a drummer, as proven by the communication of respondent principal to respondent agency referring to petitioner as “drummer with our enchanted isle quartet.”
Thus, the certification that petitioner may go back specifically as a piano or guitar player means that the likelihood of petitioner returning to his usual work as a drummer was practically nil. From this, it is pristine clear that petitioner’s disability is total and permanent.
Private respondents’ contention that it was not shown that it was impossible for petitioner to play the drums during the 8-10 months that he was on land is specious.
To our minds, petitioner’s unfitness to work attached to the nature of his job rather than to its place of performance.
Indeed, playing drums per se requires physical exertion, speed and endurance. It demands the performance of hitting strokes and repetitive movements that petitioner, having undergone a triple coronary bypass, has become incapacitated to do.
The possibility that petitioner could work as a drummer at sea again does not negate the claim for permanent total disability benefits.
In the same case of Crystal Shipping, Inc., we held:
Petitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001. (citation omitted) Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years.
The law does not require that the illness should be incurable. What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability.56 (emphasis supplied)
That the company-designated physician did not specify that petitioner suffered from any disability should not prejudice petitioner’s claim for disability benefits.
In the first place, it is well to note that it was respondent agency which referred petitioner to the American Outpatient Clinic giving only the specific instruction that the designated physician indicate in the medical report “the estimated treatment period and the exam conducted.”
Moreover, what is important is that the facts stated in the medical report clearly constitute permanent total disability as defined by law. It is well-settled that strict rules of evidence are not applicable in claims for compensation and disability benefits.
Disability should not be understood more on its medical significance but on the loss of earning capacity. As in the case of Crystal Shipping, Inc., an award of permanent total disability benefits in the petition at bar would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.
We do not agree that petitioner’s admission that he was a heavy smoker is enough ground to disqualify him from entitlement to disability compensation under Section 20(D) of the 1996 POEA SEC, viz:
Section 20.D. No compensation shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.
We have held that a worker brings with him possible infirmities in the course of his employment and while the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability.
In the case at bar, it is noteworthy that petitioner’s habit of smoking was not a consideration when private respondents hired petitioner. It was likewise not shown that petitioner suffered from any form of ailment prior to the heart ailment he suffered during the course of his employment with private respondents.
While smoking may contribute to the development of a heart ailment, heart ailment may be caused by other factors such as working and living under stressful conditions. Thus, private respondents’ peremptory presumption, that petitioner’s habit of smoking heavily was the willful act which caused his illness and resulting disability, without more, cannot suffice to bar petitioner’s claim for disability benefits. Ruling otherwise would run contrary to the constitutional mandate to extend full protection to labor.
Having suffered from permanent total disability, petitioner is entitled to US$60,000.00 which is the amount due for permanent total disability under Section 30-A of the 1996 POEA SEC.
As to the claim for sickness allowance, petitioner prays that private respondents be held jointly and severally liable to pay him US$3,428.00, as opposed to the award of the Labor Arbiter, as affirmed by the NLRC and the CA, of only US$3,400.00.
We find this claim warranted by the undisputed fact on record that petitioner’s basic salary is US$857.00 per month. Multiplying the 120-day sickness allowance due petitioner on the basis of the correct monthly rate of US$857.00, he should be awarded US$3,428.00 as sickness allowance.
Under Article 2208 of the New Civil Code, attorney’s fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer’s liability laws. Attorney’s fees is also recoverable when the defendant’s act or omission has compelled the plaintiff to incur expenses to protect his interest.
Such conditions being present in the case at bar, we find that an award of attorney’s fees is warranted.
IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. No. 67782 dated March 31, 2003 and August 14, 2003, respectively, are REVERSED and SET ASIDE.
Private respondents are held jointly and severally liable to pay petitioner:
a) permanent total disability benefits of US$60,000.00 at its peso equivalent at the time of actual payment;
b) sickness allowance of US$3,428.00 at its peso equivalent at the time of actual payment; and c) attorney’s fees of ten percent (10%) of the total monetary award at its peso equivalent at the time of actual payment. Costs against private respondents.
SO ORDERED.
Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur.
1 Also referred to as New Commodore Cruise Line, Ltd. in some parts of the record.
2 Dated March 31, 2003; rollo, pp. 28-35.
3 Dated August 14, 2003; Id. at 64.
4 CA rollo, pp. 33-41.
5 Id. at 293.
6 Note that said POEA SEC has been revised by DOLE Department Order No. 4, Series of 2000 (2000 POEA SEC).
7 CA rollo, p. 206.
8 Id. at 202-204.
9 Id. at 48.
10 Id. at 88.
11 Id. at 89-90.
12 Id. at 241.
13 Id. at 186-187.
14 Id. at 190.
15 Id. at 36.
16 Id. at 190-215.
17 Id. at 87-91.
18 Id. at 44-56.
19 Id. at 56.
20 Supra note 4.
21 Id. at 2-28.
22 Rollo, p. 88.
23 Id. at 116.
24 Id. at 17.
25 See Chiang Kai Shek College v. CA, G.R. No. 152988, August 24, 2004, 437 SCRA 17 1, citing Republic v. Sandiganbayan, G.R. No. 102508, January 30, 2002, 375 SCRA 145.
26 Memorandum (For the Private Respondents); rollo, p. 172.
27 Labor Code, Art. 167(n).
1 Also referred to as New Commodore Cruise Line, Ltd. in some parts of the record.
2 Dated March 31, 2003; rollo, pp. 28-35.
3 Dated August 14, 2003; Id. at 64.
4 CA rollo, pp. 33-41.
5 Id. at 293.
6 Note that said POEA SEC has been revised by DOLE Department Order No. 4, Series of 2000 (2000 POEA SEC).
7 CA rollo, p. 206.
8 Id. at 202-204.
9 Id. at 48.
10 Id. at 88.
11 Id. at 89-90.
12 Id. at 241.
13 Id. at 186-187.
14 Id. at 190.
15 Id. at 36.
16 Id. at 190-215.
17 Id. at 87-91.
18 Id. at 44-56.
19 Id. at 56.
20 Supra note 4.
21 Id. at 2-28.
22 Rollo, p. 88.
23 Id. at 116.
24 Id. at 17.
25 See Chiang Kai Shek College v. CA, G.R. No. 152988, August 24, 2004, 437 SCRA 17 1, citing Republic v. Sandiganbayan, G.R. No. 102508, January 30, 2002, 375 SCRA 145.
26 Memorandum (For the Private Respondents); rollo, p. 172.
27 Labor Code, Art. 167(n).
28 See Sec. 32-A of the 2000 POEA SEC titled “Occupational Diseases.”
29 G.R. No. 84812, October 5, 1990, 190 SCRA 337, 346-347.
30 The 1984 POEA SEC and 1996 POEA SEC are similarly worded.
31 G.R. No. 123619, June 8, 2000, 333 SCRA 236, 242.
32 See Arts. 1306 and 1308 of the New Civil Code; Delos Santos v. Jebsen Maritime, Inc., G.R. No. 154185, November 22, 2005, citing Lagunsad vs. Soto, No. L-32066, August 6, 1979, 92 SCRA 476.
33 Mayon Hotel and Restaurant v. Adana, G.R. No. 157634, May 16, 2005, 458 SCRA 609, citing Nicario v. NLRC, G.R. No. 125340, September 17, 1998, 295 SCRA 619. (citation omitted)
34 Id., citing Sarmiento v. Employees’ Compensation Commission, No. L-68648, September 24, 1986, 144 SCRA 421.
35 G.R. No. 85024, January 23, 1991, 193 SCRA 190, 195.
36 G.R. No. 64255, August 16, 1989, 176 SCRA 507, 511.
37 E.O. No. 247, Sec. 3(i) and (j).
38 Art. 1700, New Civil Code. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.
39 G.R. No. 123891, February 28, 2001, 353 SCRA 47.
40 G.R. No. 134028, December 17, 1999, 321 SCRA 268, 270-271.
41 G.R. No. 117572, January 29, 1998, 285 SCRA 430, 436 and G.R. No. 116015, July 31, 1996, 260 SCRA 133, 138.
42 G.R. No. 84777, January 30, 1992, 205 SCRA 598, 602.
43 Ibid., citing Ulibas v. Republic, No. L-43320, June 30, 1978, 83 SCRA 819 and Roma v. WCC, No. L-43675, October 28, 1977, 80 SCRA 170.
44 G.R. No. 154798, October 20, 2005.
45 G.R. No. 145093, July 8, 2003, 405 SCRA 450, 454.
46 G.R. No. 105854, August 26, 1999, 313 SCRA 141, 149-150.
47 Rule X. Temporary Total Disability
SECTION 2. Period of entitlement [to Temporary Total Disability Benefit]
(a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary
total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System; x x x
48 Supra note 35.
49 Austria v. CA, G.R. No. 146636, August 12, 2002, 387 SCRA 216, 221, citing Gonzaga v. ECC, No. L-62287, January 31, 1984, 127 SCRA 443.
50 Rule XI, Section 1(b) of the Amended Rules on Employees Compensation.
51 Supra note 44.
52 Ibid., citing GSIS v. Cadiz, supra note 45; Ijares v. CA, supra note 46.
53 Ibid., citing Philippine Transmarine Carriers, Inc. v. NLRC, supra Note 39.
54 Ibid., citing Bejerano v. ECC, supra note 43.
55 CA rollo, p. 64.
56 Citing GSIS v. Cadiz, supra note 45.
57 CA Rollo, p. 88.
58 Philippine Transmarine Carriers, Inc. v. NLRC, supra note 39, citing NFD International Manning Agents, Inc. v. NLRC, G.R. No. 107131, March 13, 1997, 269 SCRA 486, 494.
59 Supra note 39.
60 Supra note 44.
61 Seagull Shipmanagement and Transport, Inc. v. NLRC, supra, citing More Maritime Agencies, Inc. v. NLRC, G.R. No. 124927, May 18, 1999, 307 SCRA 189.
62 Contract of Employment and the factual findings of the Labor Arbiter, NLRC and CA; CA rollo, pp. 34, 36, 45 and 63, rollo, p. 29.
Thursday, December 18, 2008
Sunday, December 14, 2008
SEC Memorandum: Circular 1, 2 & 3
SEC memorandum
circular no. 1
Series of 2006
Guidelines on the Filing of Functional Currency Financial Statements
The Commission is its meeting of January 10, 2006, resolved to issue this Circular to guide companies whose functional currency (i.e., the currency of the primary economic environment in which the company operates) is other than the Philippine peso and which company file financial statements expressed in that functional currency.
1. The company’s determination of its functional currency shall be made in accordance with PAS
21, The Effects of Changes in Foreign Exchange Rates.
2. A company that files for the first time financial statements denominated in a currency other than Philippine pesos (“functional currency FS”) for statutory reporting purposes shall notify the Commission that it shall file such financial statements, with an assessment that supports the determination of its functional currency. Please see attached Annex “A” for an illustrative notification.
3. The notification shall be signed by the company’s chief executive officer and chief financial officer. It shall be accompanied by a report from the company’s external auditor indicating his/her assessment that the company’s determination of its functional currency was made in accordance with PAS 21. Please see attached Annex “B” for an illustrative report of the external auditor.
4. A company whose functional currency is other than the Philippine peso that chooses to present financial statements expressed in Philippine peso shall submit financial statements expressed in both its functional currency and in Philippine peso. The company shall (a) translate its functional currency financial state-ments into Philippine pesos in accordance with PAS 21 and (b) submit a notification to the Commission in accordance with paragraphs (2) and (3) above.
5. The notification shall be filed within forty-five (45)days after the end of the year in which the company intends to initially present a functional currency FS.
6. In the case of a change in functional currency, the company shall file a notice indicating the proposed change including the reasons thereof within thirty (30) days after the end of year in which the change occurred.
The notice shall be signed and accompanied by a report of the company’s external auditor in the manner described in paragraph (3) above.
The submission of the said notice is without prejudice to any objection that the Commission may raise on the proposed change taking into account the previous representations by the company and the principles set forth under PAS 21.
This Circular shall be published in two (2) newspapers of general circulation in the Philippines and shall take effect fifteen (15) days after the date of the last publication.
Failure to comply with the foregoing Guidelines shall render the financial statements of the company non-compliant with the applicable rules and shall subject the company concerned to the appropriate sanctions provided for in the existing laws.
Signed on behalf of the Commission on January 11, 2006, Mandaluyong City, Philippines.
(Sgd.) FE B. BARIN
Chairperson
Annex “A”
Illustrative Notification
to the SEC on Filing of Functional Currency Financial Statements
To: Securities and Exchange Commission
Pursuant to the requirement of paragraph (6)(c) of SRC Rule 68, (name of Company) notifies the Commission that it will file its financial statements expressed in (indicate functional currency) starting in (year).
I. Determination of Functional Currency Please present the following financial data to reflect the primary economic environment of the company:
a. Revenues (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Revenue per xxx xx xxx xx
audited financial
statements
Revenues in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
b. Cost and Expenses (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Cost and xxx xx xxx xx
expenses per
audited financial
statements
Cost and expenses
in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
c. If the factor/s relied upon is other than those falling under paragraphs (a) & (b), discuss such other factors considered as allowed under PAS 211. Attach relevant support as deemed necessary.
2. Conclusion
Based on the consideration of the above factors, which are set forth in PAS 21, The Effects of Changes in Foreign Exchange Rates, the Company has determined that its functional currency is the (indicate functional currency).
Signed under oath by:
_______________________ ____________________
Chief Executive Officer Chief Finance Officer
NOTARY PUBLIC
1 The following factors may also provide evidence of an entity’s functional currency;
a. The currency in which funds from financing activities (i.e., leasing debt and equity instruments ) are generated.
b. The currency in which receipts from operating activities are usually obtained.
The following additional factors are considered in determining the functional currency of a foreign operation and whether its functional currency is the same as that if the reporting entity (the reporting entity, in this context, being the entity that has the foreign operation as its subsidiary, branch, associate or joins venture):
a. whether the activities of the foreign operation are carried out as an extension of the reporting entity, another than being carried out with a significant degree of autonomy. An example of the farmer is when the foreign operation only sells goods imported from the reporting entity and remits the proceeds to it. An example of the latter is when the operation accumulate cash and other monetary items, incurs expenses, generates income and arranges borrowings, all substantially in its local currency.
b. whether transactions with the reporting entity are a high or a low proportion of the foreign operations activities.
c. whether cash flows from the activities of the foreign operation directly affect the cash flows of the reporting entity and are readily available for remittance to it.
d. whether cash flows from the activities of the foreign operation are sufficient to service existing and normally expected debt obligations without funds being made available by the reporting entity.
Illustrative Report of External Auditor to
Accompany Company’s
Notification to the SEC on Filing of Functional Currency Financial Statements
To: (name of Company)
This report is issued in connection with (name of company)’s notification to the Securities and Exchange Commission (SEC) that it will file its financial statements expressed in (indicate functional currency) starting in (year).
We have reviewed (name of company)’s determination of its functional currency as described in its Notification to the SEC and we have assessed that the Company’s determination of its functional currency was made in accordance with PAS 21, The Effects of Charges in Foreign Exchange Rates.
Name and signature of Independent CPA
BOA Registration Number
SEC Accreditation Number (if any)
Date
Address
SEC memorandum
circular no. 3
Series of 2006
TO : ALL CONCERNED
SUBJECT : PRINCIPAL OFFICE ADDRESS; ADDRESS OF EACH INCORPORATOR, DIRECTOR, TRUSTEE, OR PARTNER
In line with the “full disclosure” requirement of existing laws, all corporations and partnerships applying for registration with the Securities and Exchange Commission should state in their Articles of Incorporation or Articles of Partnership the (i) specific address of their principal office, which shall include, if feasible, the street number, street name, barangay, city or municipality; and (ii) specific residence address of each incorporator, stockholder, director, trustee, or partner.
“Metro Manila” shall no longer be allowed as address of the principal office.
Additionally, all corporations are required to state in their General Information Sheet the specific residence address of each stockholder, officer, director or trustee.
Filings that do not comply with the foregoing requirements shall be considered as non-complaint with existing rules and regulations.
This Circular shall take effect after publication in a newspaper of general circulation.
Mandaluyong City, Philippines. 16 February 2006.
(Sgd.) FE B. BARIN
Chairperson
circular no. 1
Series of 2006
Guidelines on the Filing of Functional Currency Financial Statements
The Commission is its meeting of January 10, 2006, resolved to issue this Circular to guide companies whose functional currency (i.e., the currency of the primary economic environment in which the company operates) is other than the Philippine peso and which company file financial statements expressed in that functional currency.
1. The company’s determination of its functional currency shall be made in accordance with PAS
21, The Effects of Changes in Foreign Exchange Rates.
2. A company that files for the first time financial statements denominated in a currency other than Philippine pesos (“functional currency FS”) for statutory reporting purposes shall notify the Commission that it shall file such financial statements, with an assessment that supports the determination of its functional currency. Please see attached Annex “A” for an illustrative notification.
3. The notification shall be signed by the company’s chief executive officer and chief financial officer. It shall be accompanied by a report from the company’s external auditor indicating his/her assessment that the company’s determination of its functional currency was made in accordance with PAS 21. Please see attached Annex “B” for an illustrative report of the external auditor.
4. A company whose functional currency is other than the Philippine peso that chooses to present financial statements expressed in Philippine peso shall submit financial statements expressed in both its functional currency and in Philippine peso. The company shall (a) translate its functional currency financial state-ments into Philippine pesos in accordance with PAS 21 and (b) submit a notification to the Commission in accordance with paragraphs (2) and (3) above.
5. The notification shall be filed within forty-five (45)days after the end of the year in which the company intends to initially present a functional currency FS.
6. In the case of a change in functional currency, the company shall file a notice indicating the proposed change including the reasons thereof within thirty (30) days after the end of year in which the change occurred.
The notice shall be signed and accompanied by a report of the company’s external auditor in the manner described in paragraph (3) above.
The submission of the said notice is without prejudice to any objection that the Commission may raise on the proposed change taking into account the previous representations by the company and the principles set forth under PAS 21.
This Circular shall be published in two (2) newspapers of general circulation in the Philippines and shall take effect fifteen (15) days after the date of the last publication.
Failure to comply with the foregoing Guidelines shall render the financial statements of the company non-compliant with the applicable rules and shall subject the company concerned to the appropriate sanctions provided for in the existing laws.
Signed on behalf of the Commission on January 11, 2006, Mandaluyong City, Philippines.
(Sgd.) FE B. BARIN
Chairperson
Annex “A”
Illustrative Notification
to the SEC on Filing of Functional Currency Financial Statements
To: Securities and Exchange Commission
Pursuant to the requirement of paragraph (6)(c) of SRC Rule 68, (name of Company) notifies the Commission that it will file its financial statements expressed in (indicate functional currency) starting in (year).
I. Determination of Functional Currency Please present the following financial data to reflect the primary economic environment of the company:
a. Revenues (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Revenue per xxx xx xxx xx
audited financial
statements
Revenues in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
b. Cost and Expenses (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Cost and xxx xx xxx xx
expenses per
audited financial
statements
Cost and expenses
in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
c. If the factor/s relied upon is other than those falling under paragraphs (a) & (b), discuss such other factors considered as allowed under PAS 211. Attach relevant support as deemed necessary.
2. Conclusion
Based on the consideration of the above factors, which are set forth in PAS 21, The Effects of Changes in Foreign Exchange Rates, the Company has determined that its functional currency is the (indicate functional currency).
Signed under oath by:
_______________________ ____________________
Chief Executive Officer Chief Finance Officer
NOTARY PUBLIC
1 The following factors may also provide evidence of an entity’s functional currency;
a. The currency in which funds from financing activities (i.e., leasing debt and equity instruments ) are generated.
b. The currency in which receipts from operating activities are usually obtained.
The following additional factors are considered in determining the functional currency of a foreign operation and whether its functional currency is the same as that if the reporting entity (the reporting entity, in this context, being the entity that has the foreign operation as its subsidiary, branch, associate or joins venture):
a. whether the activities of the foreign operation are carried out as an extension of the reporting entity, another than being carried out with a significant degree of autonomy. An example of the farmer is when the foreign operation only sells goods imported from the reporting entity and remits the proceeds to it. An example of the latter is when the operation accumulate cash and other monetary items, incurs expenses, generates income and arranges borrowings, all substantially in its local currency.
b. whether transactions with the reporting entity are a high or a low proportion of the foreign operations activities.
c. whether cash flows from the activities of the foreign operation directly affect the cash flows of the reporting entity and are readily available for remittance to it.
d. whether cash flows from the activities of the foreign operation are sufficient to service existing and normally expected debt obligations without funds being made available by the reporting entity.
Illustrative Report of External Auditor to
Accompany Company’s
Notification to the SEC on Filing of Functional Currency Financial Statements
To: (name of Company)
This report is issued in connection with (name of company)’s notification to the Securities and Exchange Commission (SEC) that it will file its financial statements expressed in (indicate functional currency) starting in (year).
We have reviewed (name of company)’s determination of its functional currency as described in its Notification to the SEC and we have assessed that the Company’s determination of its functional currency was made in accordance with PAS 21, The Effects of Charges in Foreign Exchange Rates.
Name and signature of Independent CPA
BOA Registration Number
SEC Accreditation Number (if any)
Date
Address
SEC memorandum
circular no. 3
Series of 2006
TO : ALL CONCERNED
SUBJECT : PRINCIPAL OFFICE ADDRESS; ADDRESS OF EACH INCORPORATOR, DIRECTOR, TRUSTEE, OR PARTNER
In line with the “full disclosure” requirement of existing laws, all corporations and partnerships applying for registration with the Securities and Exchange Commission should state in their Articles of Incorporation or Articles of Partnership the (i) specific address of their principal office, which shall include, if feasible, the street number, street name, barangay, city or municipality; and (ii) specific residence address of each incorporator, stockholder, director, trustee, or partner.
“Metro Manila” shall no longer be allowed as address of the principal office.
Additionally, all corporations are required to state in their General Information Sheet the specific residence address of each stockholder, officer, director or trustee.
Filings that do not comply with the foregoing requirements shall be considered as non-complaint with existing rules and regulations.
This Circular shall take effect after publication in a newspaper of general circulation.
Mandaluyong City, Philippines. 16 February 2006.
(Sgd.) FE B. BARIN
Chairperson
Friday, December 5, 2008
Department of Justice: Articles; Capital Punishment Revisited
Department of Justice
Articles: Capital Punishment, Revisited
By Rodolfo A. Arizala
I. Introduction
The question of Capital Punishment or death penalty has resurfaced recently like a chronic pain in the socio-political life of the nation.
It was probably provoked by the commutation of death sentences to life imprisonment of more than one thousand convicts announced by the President of the Philippines on Easter Sunday or Resurrection, followed by a certification as urgent a piece of legislation (House Bill 4826) on the elimination of Capital Punishment from our statute books.
The issue on the “pro” and “con” of the elimination of capital punishment has been debated and discussed long time ago. As a matter of fact in 1970, this writer published an article in the UST Law Review, (Vol. XX, No. 4, March-April 1970 issue), “Should Capital Punishment Be Abolished?” This was followed by an updated article in April 1990 which appeared in the Manila papers (The Philippine Daily Inquirer and the Philippine Journal) under the title: “Capital Punishment Should Not Be Restored.”
In view, however, of the renewed interest on the issue of Capital Punishment and the provision in the 1987 Philippine Constitution that death penalty shall not be imposed “unless for compelling reasons involving heinous crime, the Congress provides for it,” it is relevant to take a second look at the subject of Capital Punishment by retracing its history and develop-ment from the early period up to the present.
But before we take a second look at the subject, let us first define what is capital punishment. Capital punishment may be defined as the “imposition of the death penalty on offenders found guilty of certain major crimes.”
The method of execution is generally done either by hanging, gas chamber, electrocution, firing squad or lethal injection. In the Philippines Republic Act No. 8177 mandates that death sentence shall be carried out through lethal injection.
II. Early History; UN Back-ground Study
The movement to abolish capital punishment in civilized countries is not new. Since the days of Beccaria, a theoretical controversy on the question on capital punishment has been going on. And as early as 1651, George Fox had raised the issue of death penalty. He advocated in his pamphlet “To the Parliament and Commonwealth of England” that death penalty should be applied only in cases of murder. However, the first case of total abolition of death penalty by statute started from the eighteenth century. In 1876, for example, under the direct inspiration of Beccaria, Leopold II of Tuscanny promulgated his famous code abolishing death penalty.
The following year, Joseph II of Austria promulgated his penal code doing away with capital punishment.
In modern times, the question of capital punishment, of the laws and practices relating to it, and of the effects of capital punishment and its abolition thereof on the rate of criminality, was taken up by the United Nations. Thus, on 20 November 1959, during the 14th session of the UN General Assembly, a resolution was adopted
inviting the Economic and Social Council to initiate a study on the question. And the Economic and Social Council on 6 April 1960, adopted resolution No. 747 (XXIX) stating that the council should be provided with a factual review of the various aspects of the question of capital punishment and requested the UN Secretary General to prepare such a review.
The said resolution also provided that the Secretary General may consult, as he deemed appropriate, the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders set up under General Assembly Resolution 415 (V).
In UN Resolution No. 1918 (XVIII), the General Assembly requested the Economic and Social Council to ask the Committee on Human Rights to study the report on capital punishment and the comments on it of the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders (E/3724) and to make such recom-mendations on the matter as it deemed appropriate.
III. Report on Capital Punish-ment
Justice March Ancel of the French Supreme Court and Director of the Criminal Science of the Institute of Comparative Law of Paris, prepared a report on capital punishment based on the replies of two questionnaires sent by the UN Secretary General, in addition to whatever information he (Justice Ancel) has already gathered personally on the subject.
The two questionnaires were:
1) A questionnaire requesting infor-mation on the laws, regulations and practices in force on capital punishment sent to members and certain non-member states;
2) A questionnaire requesting infor-mation on the deterrent effect of the death penalty and on the consequences of its abolition, sent to national correspondents of the Secretariat in the field on the prevention of crime and the treatment of offenders, and to non-governmental organizations.
In his report, Justice Ancel classified the countries or territories as follows:
1). Countries and territories which have kept the death penalty; and
2) Countries and territories which have abolished the death penalty. The latter group is divided into three categories: 1) Abolitionist de jure; 2) Abolitionist de facto; and 3) Almost completely abolitionist.
Abolitionist de jure are those countries in which the death penalty has been abolished by an expressed constitutional or legislative pro-visions such as Argentina, Australia, Austria, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Germany, etc.
Abolitionist de facto are those countries whose positive law (penal code or special statute) makes provision for death penalty and where sentences of death are passed but never carried out because of established custom, such as in Belgium, Liechtenstein, Luxemburg, and the Vatican State.
Almost completely abolitionist are those countries or territories in which the death penalty is provided only for offenses committed in certain exceptional circumstances and in which capital punishment has, in fact, virtually disappeared such as in New South Wales, Nicaragua, and in certain States of the United States like Michigan, North Dakota and Rhode Island.
In this connection, it may be asked: “To what category our country belongs?
Under the Philippine Revised Penal Code, law and jurisprudence, the following offenses are examples which may be punishable by death: parricide (Art. 246); kidnapping or detention to extort ransom (Art. 267, as amended by RA No. 19); robbery with homicide (Art. 294, para 1 ); murder (Art. 248); treason (Art. 114); collaboration with the enemy (Art. 120, para 3); qualified piracy (Art. 123); if a person is injured or killed as a result or on occasion of cattle rustling (Sec. 8, PD 533); use of explosives in fishing and if it causes loss of human life (Sec. 3(a) & (b) PD 534); and if death results from the commission of arson (Sec. 5; PD 1613).
To these were added subversion, unlawful possession of firearms, hijacking, embezzlement, and drug-related offenses.
However, death penalty is not imposed ; 1) when the guilty person is more than70 years old (Art. 14); 2) when eight justices of the Supreme Court failed to confirm the death penalty imposed by the lower court (Sect. 9, Judiciary Act of 1948).
It is also observed that under Philippine laws, if death penalty is imposed by the lower court, the case is automatically appealed to the Supreme Court by virtue of Rule 122, Section 9, Rules of Court of the Phillippines. The execution of death sentence is suspended in the following cases: 1) a woman within three years following the sentence;
2) while the woman is pregnant. In case of a person older than 70 years old, the death sentence shall be commuted to the penalty of reclusion perpetua (Art. 83 & 40), and in case of insanity which developed after the trial but before serving sentence, it suspend the sentence with respect to personal penalty. If a minor is under 16 years old, the court shall suspend all further proceedings and shall commit such minor to the custody of a public or private benevolent or charitable institution (Art. 80).
The 1987 Constitution of the Philippines abolished capital punishment. Section 19(1), Article III thereof provides as follows: “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.”
Because of the aforequoted provision of the Philippine Constitution, it may be said that the Philippines in 1987 has joined the “Abolitionist de Jure” group those countries in which death penalty has been abolished by an express constitutional or legislative provision. Commissioner Joaquin G. Bernas, S.J., in his book The Constitution of the Republic of the Philippines, A Commentary, (Vol I, First Edition, 1987, p. 443) commenting on the aforequoted provision said: “By a show of hands the abolition of the death penalty was approved 19-18. On motion of Commissioner Rodrigo nominal voting was called and the outcome was still for abolition, 22-17.”
However, because of an amendment authored by one of the Commissioners, death penalty may be reimposed if “for compelling reasons involving heinous crimes, the Congress hereafter provides for it.”
Pursuant to such provision in the 1987 Constitution, in December 1993, to address the rising criminality and incidence of heinous crimes, Republic Act No. 7659 was passed reimposing the death penalty.
Said Death Penalty Law lists a total of 46 crimes punishable by death; 25 of these are death mandadtory while 21 are death eligible. With the amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), there are now 52 capital offenses, 30 of which are death mandatory and 22 are death eligible in our statute books.
In a 2004 survey conducted by FLAG (Free Legal Association Group), it was reported that of the 1,121 death row inmates whose death sentences were recently commuted by the President to life imprisonment, 22 percent or 198 of them were convicted of murder and/or parricide; 45 percent (405) were found guilty of rape; 14.5 percent (129) of kidnapping; 11 percent (101) of robbery; 0.4 percent(4) of carnapping; 0.8 percent (7) of bribery; and three percent (26) of violation of dangerous drugs laws.
In view of the reimposition of death penalty in 1993 through Republic Act No. 7659, some observers opined that the Philippines belong to the group of countries which is “almost completely abolitionist” if not a country which has kept the death penalty.
IV. Arguments for and against Capital Punishment
A. In favor of Capital Punishment
1. It has deterrent effect.
2. Atonement – death penalty is the only just punishment for the gravest crimes.
3. Public opinion remains generally favorable to capital punishment and the police and prison officials believe in its effectiveness.
4. A particularly potent weapon is needed in dealing with dangerous criminals to protect society.
5. Confinement for life or imprisonment would be more and cruel punishment than death because perpetual imprisonment leaves no hope to the offender.
6. Execution of the offender represents a saving of public funds because taxpayers are not called upon to pay for the indefinite maintenance of anti-social crimi-nals.
B. Against Capital Punishment
1. Sanctity of human life. Since it is wrong to kill, the state should be the first one to respect human life.
2. The modern tendency is to regard penalties as having no object other than prevention and punish-ment and this could be achieved other than taking human life.
3. Death penalty has no deterrent effects as shown by statistics. Abolition of death penalty, on the other hand, does not lead to increase the crimes.
4. Death penalty is a sort of judicial or legal murder, and it debases justices.
5. Death penalty is a form of cruelty and inhumanity. Doctors report that even the most efficient methods do not result in instantaneous painless death. It affects not only the criminal but also his families and relatives with mark of infamy.
6. Society can protect itself by other means.
V. General Observations.
A. In countries /territories where death penalty exists.
The modern tendency is more and more to drop the mandatory character of the death penalty. And in many legal systems, the death sentence is mandatory only for certain specific crimes or in certain special courts. As a general rule, only in cases of capital murder or crimes against the external security or integrity of the state death penalty is mandatory. A death sentence may not be imposed if the offender is granted pardon. The pardoning power is generally vested in the head of the state such as king, president, and sometimes even in the governor of a state or province.
B. In countries / territories in which death penalty is not applied.
It has been observed that the number of countries in which offenses other than murder are punishable by death is declining, and that the abolition of death penalty does not have the immediate effect of appreciably increasing the incidence of crime.
In some countries such as those in Scandinavia and Latin America, the deterrent effect of death penalty is not demonstrated. However, the trend towards an authoritarian system of criminal law has checked the slow movement towards gradual abolition of death penalty. Consequently, death penalty, especially for political crimes, has reappeared in countries where it had once been abolished.
VI. Conclusion
During the 23rd session of the UN General Assembly, it adopted resolution 2393 (XXIII) inviting all governments of member states of the United Nations to inform the Secretary General of the steps taken concerning the possible abolition of the death penalty. Said UN Resolution is an indication of the collective interest of the international community towards this problem.
According to reports 123 countries, including members of the European Union, have already abolished death penalty. The issue, therefore, of Capital Punishment is not new but it has been studied, discussed and debated long time ago. It is up for member states of the United Nations which have not yet made a firm or final decision on the subject to do it now in pursuance of UN Resolutions on the subject.
As stated earlier, by virtue of the 1987 Constitution, the Philippines has adopted the policy of “abolitionist de jure” with respect to capital punishment. However, Congress may reimpose death penalty if there are compelling reasons involving “heinous crimes”. Consequently in 1993, through Republic Act No. 7659, death penalty was reimposed in the Philippines.
Personally, the author believes that capital punishment should be completely abolished for reasons already stated in this article – sanctity of human life; death penalty has no deterrent effects; and society can protect itself by other means. This could be done by amending the present Constitution and / or passing the necessary legislation. And that is left to the wisdom of Congress and those who may undertake Constitutional amendments or revisions.
Articles: Capital Punishment, Revisited
By Rodolfo A. Arizala
I. Introduction
The question of Capital Punishment or death penalty has resurfaced recently like a chronic pain in the socio-political life of the nation.
It was probably provoked by the commutation of death sentences to life imprisonment of more than one thousand convicts announced by the President of the Philippines on Easter Sunday or Resurrection, followed by a certification as urgent a piece of legislation (House Bill 4826) on the elimination of Capital Punishment from our statute books.
The issue on the “pro” and “con” of the elimination of capital punishment has been debated and discussed long time ago. As a matter of fact in 1970, this writer published an article in the UST Law Review, (Vol. XX, No. 4, March-April 1970 issue), “Should Capital Punishment Be Abolished?” This was followed by an updated article in April 1990 which appeared in the Manila papers (The Philippine Daily Inquirer and the Philippine Journal) under the title: “Capital Punishment Should Not Be Restored.”
In view, however, of the renewed interest on the issue of Capital Punishment and the provision in the 1987 Philippine Constitution that death penalty shall not be imposed “unless for compelling reasons involving heinous crime, the Congress provides for it,” it is relevant to take a second look at the subject of Capital Punishment by retracing its history and develop-ment from the early period up to the present.
But before we take a second look at the subject, let us first define what is capital punishment. Capital punishment may be defined as the “imposition of the death penalty on offenders found guilty of certain major crimes.”
The method of execution is generally done either by hanging, gas chamber, electrocution, firing squad or lethal injection. In the Philippines Republic Act No. 8177 mandates that death sentence shall be carried out through lethal injection.
II. Early History; UN Back-ground Study
The movement to abolish capital punishment in civilized countries is not new. Since the days of Beccaria, a theoretical controversy on the question on capital punishment has been going on. And as early as 1651, George Fox had raised the issue of death penalty. He advocated in his pamphlet “To the Parliament and Commonwealth of England” that death penalty should be applied only in cases of murder. However, the first case of total abolition of death penalty by statute started from the eighteenth century. In 1876, for example, under the direct inspiration of Beccaria, Leopold II of Tuscanny promulgated his famous code abolishing death penalty.
The following year, Joseph II of Austria promulgated his penal code doing away with capital punishment.
In modern times, the question of capital punishment, of the laws and practices relating to it, and of the effects of capital punishment and its abolition thereof on the rate of criminality, was taken up by the United Nations. Thus, on 20 November 1959, during the 14th session of the UN General Assembly, a resolution was adopted
inviting the Economic and Social Council to initiate a study on the question. And the Economic and Social Council on 6 April 1960, adopted resolution No. 747 (XXIX) stating that the council should be provided with a factual review of the various aspects of the question of capital punishment and requested the UN Secretary General to prepare such a review.
The said resolution also provided that the Secretary General may consult, as he deemed appropriate, the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders set up under General Assembly Resolution 415 (V).
In UN Resolution No. 1918 (XVIII), the General Assembly requested the Economic and Social Council to ask the Committee on Human Rights to study the report on capital punishment and the comments on it of the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders (E/3724) and to make such recom-mendations on the matter as it deemed appropriate.
III. Report on Capital Punish-ment
Justice March Ancel of the French Supreme Court and Director of the Criminal Science of the Institute of Comparative Law of Paris, prepared a report on capital punishment based on the replies of two questionnaires sent by the UN Secretary General, in addition to whatever information he (Justice Ancel) has already gathered personally on the subject.
The two questionnaires were:
1) A questionnaire requesting infor-mation on the laws, regulations and practices in force on capital punishment sent to members and certain non-member states;
2) A questionnaire requesting infor-mation on the deterrent effect of the death penalty and on the consequences of its abolition, sent to national correspondents of the Secretariat in the field on the prevention of crime and the treatment of offenders, and to non-governmental organizations.
In his report, Justice Ancel classified the countries or territories as follows:
1). Countries and territories which have kept the death penalty; and
2) Countries and territories which have abolished the death penalty. The latter group is divided into three categories: 1) Abolitionist de jure; 2) Abolitionist de facto; and 3) Almost completely abolitionist.
Abolitionist de jure are those countries in which the death penalty has been abolished by an expressed constitutional or legislative pro-visions such as Argentina, Australia, Austria, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Germany, etc.
Abolitionist de facto are those countries whose positive law (penal code or special statute) makes provision for death penalty and where sentences of death are passed but never carried out because of established custom, such as in Belgium, Liechtenstein, Luxemburg, and the Vatican State.
Almost completely abolitionist are those countries or territories in which the death penalty is provided only for offenses committed in certain exceptional circumstances and in which capital punishment has, in fact, virtually disappeared such as in New South Wales, Nicaragua, and in certain States of the United States like Michigan, North Dakota and Rhode Island.
In this connection, it may be asked: “To what category our country belongs?
Under the Philippine Revised Penal Code, law and jurisprudence, the following offenses are examples which may be punishable by death: parricide (Art. 246); kidnapping or detention to extort ransom (Art. 267, as amended by RA No. 19); robbery with homicide (Art. 294, para 1 ); murder (Art. 248); treason (Art. 114); collaboration with the enemy (Art. 120, para 3); qualified piracy (Art. 123); if a person is injured or killed as a result or on occasion of cattle rustling (Sec. 8, PD 533); use of explosives in fishing and if it causes loss of human life (Sec. 3(a) & (b) PD 534); and if death results from the commission of arson (Sec. 5; PD 1613).
To these were added subversion, unlawful possession of firearms, hijacking, embezzlement, and drug-related offenses.
However, death penalty is not imposed ; 1) when the guilty person is more than70 years old (Art. 14); 2) when eight justices of the Supreme Court failed to confirm the death penalty imposed by the lower court (Sect. 9, Judiciary Act of 1948).
It is also observed that under Philippine laws, if death penalty is imposed by the lower court, the case is automatically appealed to the Supreme Court by virtue of Rule 122, Section 9, Rules of Court of the Phillippines. The execution of death sentence is suspended in the following cases: 1) a woman within three years following the sentence;
2) while the woman is pregnant. In case of a person older than 70 years old, the death sentence shall be commuted to the penalty of reclusion perpetua (Art. 83 & 40), and in case of insanity which developed after the trial but before serving sentence, it suspend the sentence with respect to personal penalty. If a minor is under 16 years old, the court shall suspend all further proceedings and shall commit such minor to the custody of a public or private benevolent or charitable institution (Art. 80).
The 1987 Constitution of the Philippines abolished capital punishment. Section 19(1), Article III thereof provides as follows: “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.”
Because of the aforequoted provision of the Philippine Constitution, it may be said that the Philippines in 1987 has joined the “Abolitionist de Jure” group those countries in which death penalty has been abolished by an express constitutional or legislative provision. Commissioner Joaquin G. Bernas, S.J., in his book The Constitution of the Republic of the Philippines, A Commentary, (Vol I, First Edition, 1987, p. 443) commenting on the aforequoted provision said: “By a show of hands the abolition of the death penalty was approved 19-18. On motion of Commissioner Rodrigo nominal voting was called and the outcome was still for abolition, 22-17.”
However, because of an amendment authored by one of the Commissioners, death penalty may be reimposed if “for compelling reasons involving heinous crimes, the Congress hereafter provides for it.”
Pursuant to such provision in the 1987 Constitution, in December 1993, to address the rising criminality and incidence of heinous crimes, Republic Act No. 7659 was passed reimposing the death penalty.
Said Death Penalty Law lists a total of 46 crimes punishable by death; 25 of these are death mandadtory while 21 are death eligible. With the amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), there are now 52 capital offenses, 30 of which are death mandatory and 22 are death eligible in our statute books.
In a 2004 survey conducted by FLAG (Free Legal Association Group), it was reported that of the 1,121 death row inmates whose death sentences were recently commuted by the President to life imprisonment, 22 percent or 198 of them were convicted of murder and/or parricide; 45 percent (405) were found guilty of rape; 14.5 percent (129) of kidnapping; 11 percent (101) of robbery; 0.4 percent(4) of carnapping; 0.8 percent (7) of bribery; and three percent (26) of violation of dangerous drugs laws.
In view of the reimposition of death penalty in 1993 through Republic Act No. 7659, some observers opined that the Philippines belong to the group of countries which is “almost completely abolitionist” if not a country which has kept the death penalty.
IV. Arguments for and against Capital Punishment
A. In favor of Capital Punishment
1. It has deterrent effect.
2. Atonement – death penalty is the only just punishment for the gravest crimes.
3. Public opinion remains generally favorable to capital punishment and the police and prison officials believe in its effectiveness.
4. A particularly potent weapon is needed in dealing with dangerous criminals to protect society.
5. Confinement for life or imprisonment would be more and cruel punishment than death because perpetual imprisonment leaves no hope to the offender.
6. Execution of the offender represents a saving of public funds because taxpayers are not called upon to pay for the indefinite maintenance of anti-social crimi-nals.
B. Against Capital Punishment
1. Sanctity of human life. Since it is wrong to kill, the state should be the first one to respect human life.
2. The modern tendency is to regard penalties as having no object other than prevention and punish-ment and this could be achieved other than taking human life.
3. Death penalty has no deterrent effects as shown by statistics. Abolition of death penalty, on the other hand, does not lead to increase the crimes.
4. Death penalty is a sort of judicial or legal murder, and it debases justices.
5. Death penalty is a form of cruelty and inhumanity. Doctors report that even the most efficient methods do not result in instantaneous painless death. It affects not only the criminal but also his families and relatives with mark of infamy.
6. Society can protect itself by other means.
V. General Observations.
A. In countries /territories where death penalty exists.
The modern tendency is more and more to drop the mandatory character of the death penalty. And in many legal systems, the death sentence is mandatory only for certain specific crimes or in certain special courts. As a general rule, only in cases of capital murder or crimes against the external security or integrity of the state death penalty is mandatory. A death sentence may not be imposed if the offender is granted pardon. The pardoning power is generally vested in the head of the state such as king, president, and sometimes even in the governor of a state or province.
B. In countries / territories in which death penalty is not applied.
It has been observed that the number of countries in which offenses other than murder are punishable by death is declining, and that the abolition of death penalty does not have the immediate effect of appreciably increasing the incidence of crime.
In some countries such as those in Scandinavia and Latin America, the deterrent effect of death penalty is not demonstrated. However, the trend towards an authoritarian system of criminal law has checked the slow movement towards gradual abolition of death penalty. Consequently, death penalty, especially for political crimes, has reappeared in countries where it had once been abolished.
VI. Conclusion
During the 23rd session of the UN General Assembly, it adopted resolution 2393 (XXIII) inviting all governments of member states of the United Nations to inform the Secretary General of the steps taken concerning the possible abolition of the death penalty. Said UN Resolution is an indication of the collective interest of the international community towards this problem.
According to reports 123 countries, including members of the European Union, have already abolished death penalty. The issue, therefore, of Capital Punishment is not new but it has been studied, discussed and debated long time ago. It is up for member states of the United Nations which have not yet made a firm or final decision on the subject to do it now in pursuance of UN Resolutions on the subject.
As stated earlier, by virtue of the 1987 Constitution, the Philippines has adopted the policy of “abolitionist de jure” with respect to capital punishment. However, Congress may reimpose death penalty if there are compelling reasons involving “heinous crimes”. Consequently in 1993, through Republic Act No. 7659, death penalty was reimposed in the Philippines.
Personally, the author believes that capital punishment should be completely abolished for reasons already stated in this article – sanctity of human life; death penalty has no deterrent effects; and society can protect itself by other means. This could be done by amending the present Constitution and / or passing the necessary legislation. And that is left to the wisdom of Congress and those who may undertake Constitutional amendments or revisions.
Tuesday, December 2, 2008
Opinions from the Bar: Should the SC Nominees Have Been Interviewed by the JBC?
Opinions from the Bar:
Should the Three SC Nominees
for Chief Justice Have Been Interviewed by the JBC?
By Leon L. Asa
It is consoling that the Judicial and Bar Council had narrowed down its choices for the position of Chief Justice to the three most Senior Justices, namely, Justices Reynato S. Puno, Artemio V. Panganiban, and Leonardo A. Quisumbing.
After having reached the compulsory retirement age of 70, Honorable Hilario G. Davide Jr. retired as Chief Justice of the Supreme Court on 20 December 2005.
The three (3) most Senior Justices – Justices Reynato S. Puno, Artemio V. Panganiban, and Leonardo A. Quisumbing – were automatically nominated for the position of Chief Justice.
The Young Lawyers Asso-ciation of the Philippines recom-mended Sen. Miriam Defensor-Santiago to the same position. Senator Santiago accepted her recommendation but a little too late.
Under Section 8 of the Rules of the Judicial and Bar Council, Rule No. JBC-10 provides
In case of recommen-dations, the acceptance by the recommendee must be made before the deadline. Applications or recom-mendations filed beyond the deadline will not be honored.
Senator Santiago’s acceptance of said recommendation was sub-mitted after the deadline, so it was consequently rejected.
JBC Member Sen. Francis N. Pangilinan moved for the extension of the deadline so that the name of Senator Santiago would be included. The JBC, however, reiterated its previous stand and denied said appeal.
Section 9 of the 1987 Consti-tution provides that members of the Supreme Court shall be appointed by the President from “a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.”
Instead of immediately sub-mitting to Malacanang the names of the three Senior Justices pursuant to Section 9, the JBC, however, planned to interview the three nominees in a public hearing on 01 December 2005.
In a letter dated 28 November 2005 addressed to Chief Justice Hilario G. Davide Jr., the twelve (12) Supreme Court Associate Justices vigorously objected to the public interview seriously contemplated by the JBC, enumerating cogent reasons for their opposition. Said letter is hereunder reproduced in its entirety:
28 November 2005
Chief Justice Hilario G. Davide, Jr.
Supreme Court
Manila
Dear Chief:
We write to express our alarm at the departure from established practice, one that has become part of our judicial tradition, in the selection of nominees for Chief Justice. We refer to the plan of the Judicial and Bar Council to interview, for the first time, sitting Justices of the Supreme Court nominated for Chief Justice
We do not agree with this new procedure for the following reasons:
1. Since the adoption of the 1987 Constitution, the JBC never interviewed nominees who were already incumbent Jus-tices of the Supreme Court.
Thus, the JBC did not interview Chief Justices Fernan, Narvasa and you. There is no sound reason to depart from this established practice.
2. The ostensible reason for interviewing the nominees is to find out how they intend to manage or administer the Judiciary, the assumption being the Chief Justice is the Chief Executive of the Judiciary. This assumption is a gross misconception. The Chief Justice is not the Chief Executive of the Judiciary or even of the Supreme Court.
Section 6, Article VIII of the 1987 Constitution is clear: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” Section 6 of the same Article states: “The Supreme Court shall have the following powers: x x x (6) Appoint all officials and employees of the Judiciary in accordance with Civil Service Law.”
Section 11 of the same Article further provides: “x x x The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.”
Thus, the Supreme Court en banc, not the Chief Justice, manages and administers the Judiciary. The Supreme Court en banc, not the Chief Justice, appoints and disciplines all personnel, other than judges and justices, of the Judiciary.
If the JBC intends to interview the nominees to find out how they intend to manage or administer the Judiciary, then such interview is pointless. Besides, there are only three nominees. The JBC will have to recommend all of them in any event since the President must choose from at least three nominees.
3. The JBC should instead exa-mine the judicial philosophy of the nominees. Sitting Justices of the Court express their judicial philosophy in their written decisions, including dis-sents. The JBC should find out whether the nominee’s judicial philosophy is what is best for the nation. The Chief Justice “leads” the Court and the Judiciary not as an executive manager for he is not one, but as an intellectual leader as expressed in his judicial philosophy.
Sitting Justices nominated for Chief Justice are unlike appellate court justices nominated for the Supreme Court. A sitting Justice of the Supreme Court expresses his judicial philosophy in his written decisions.
The JBC does not need to interview a sitting Justice of the Supreme Court to find out his judicial philo-sophy. All that the JBC needs to do is to scrutinize the decisions of the nominees. The JBC either agrees with the nominee’s judicial philosophy or not. A one-hour interview with the nominee will not change the nominees judicial philosophy.
In contrast, an appellate court justice does not necessarily express his own judicial philo-sophy in writing his decisions because whether he likes it or not he is bound, under stare decisis, to follow decisions of the Supreme Court.
Thus, the JBC needs to interview appel-late court justices to find out their own judicial philosophy, and whether such judicial philo-sophy is for the best interest of the nation.
4. Lastly, the JBC is under the supervision of the Supreme Court. Section 8(1), Article VIII of the 1987 Constitution states: “A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex-officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”
There is something inherently wrong when members of a subordinate body can accept or reject nominees of a superior body supervising such a subordinate body, on a matter involving the choice of presiding officer of the superior body, when the nominees all come from the superior body.
Such a situation is inconsistent with the order of hierarchy found in the 1987 Constitution. Such a situation could not have been the intent of the framers of the 1987 Constitution when they placed the JBC under the supervision of the Supreme Court. The established practice of automatically nominating the three most senior members of the Court for Chief Justice is more in accord with the consti-tutional provision placing the JBC under the supervision of the Supreme Court.
Consequently, we respectfully request the Chief Justice to convey to the Judicial and Bar Council our views on this important matter which we believe will have a lasting impact on the indepen-dence of the Supreme Court, a principle the 1987 Constitution zealously protects.
Thank you.
Very truly yours,
(Sgd.) Leonardo A. Quisumbing
(Sgd.) Consuelo Ynares-Santiago
(Sgd.) Angelina Sandoval Gutierrez
(Sgd.) Ma. Alicia Austria-Martinez
(Sgd.) Antonio T. Carpio
(Sgd.) Renato C. Corona
(Sgd.) Conchita Carpio Morales
(Sgd.) Romeo L. Callejo, Jr.
(Sgd.) Adolfo S. Azcuna
(Sgd.) Dante O. Tinga
(Sgd.) Minita V. Chico-Nazario
(Sgd.) Cancio C. Garcia
On 01 December 2005, the date of the scheduled public interview – the JBC decided not to conduct the interview.
Quoted hereunder is the report on the meeting of the JBC on 01 December 2005:
The Council, voting 6 in favor and one against, with the Chief Justice abstaining, granted the request contained in the letter dated 28 November 2005 of the 12 SC Associate Justices NOT TO CONDUCT INTERVIEW but with vigorous and serious objections to the substantive grounds relied upon.
The grant is solely on the ground that only three have been considered for nomination and since the Constitution requires that at least three names should be submitted to Malacanang, it necessarily follows that these three have to be recommended by the JBC. The interview is moot and academic.
One of the letter-writers is the third Member of the Court to be considered for nomination.
This is only pro hac vice, not to be a precedent for future action, where more than three are nominated or where outsiders are nominated, the Council shall proceed with the public interview.
The JBC shall submit to Mala-canang at the earliest opportunity three names to be considered for the position of Chief Justice in alphabetical order.
In the afternoon of 01 December 2005, the JBC forwarded the list of the nominees to Malacanang.
The position of Chief Justice of the Supreme Court is without question of great importance. The Judicial Depart-ment is the third branch of government which is co-equal with the Executive and Legislative Departments.
The Chief Justice is the fifth in line of constitutional succession.
Would it not diminish the dignity of the Office of Chief Justice if the Chief Justice who would be appointed would be subjected to a public hearing by the Judicial and Bar Council primarily to determine his competence or his ability to administer the judiciary? As plainly stated in the said letter of the 12 SC Justices, “it is the Supreme Court en banc, not the Chief Justice that manages and administers the Judiciary.” Perforce, it is not necessary to interview the nominees for Chief Justice to find out how they will manage or administer the Judiciary.
The JBC already interviewed the three Justices when they first applied for the position of Associate Justice. Their experience as Associate Justices for years surely has increased their competence.
Their well-written ponencias, concurring opinions, and sometimes scathing dissenting opinions in celebrated cases are an open book and striking evidence of their competence and qualifications. Their judicial philosophy is clearly expounded in several landmark cases. It is, therefore, superfluous and an exercise in futility if said nominees would be subjected to a public interview by the Judicial and Bar Council.
Congratulations to the outgoing Honorable Chief Justice Hilario G. Davide Jr. for a job well done. Congratulations also to the new Honorable Chief Justice Artemio V. Panganiban.
Should the Three SC Nominees
for Chief Justice Have Been Interviewed by the JBC?
By Leon L. Asa
It is consoling that the Judicial and Bar Council had narrowed down its choices for the position of Chief Justice to the three most Senior Justices, namely, Justices Reynato S. Puno, Artemio V. Panganiban, and Leonardo A. Quisumbing.
After having reached the compulsory retirement age of 70, Honorable Hilario G. Davide Jr. retired as Chief Justice of the Supreme Court on 20 December 2005.
The three (3) most Senior Justices – Justices Reynato S. Puno, Artemio V. Panganiban, and Leonardo A. Quisumbing – were automatically nominated for the position of Chief Justice.
The Young Lawyers Asso-ciation of the Philippines recom-mended Sen. Miriam Defensor-Santiago to the same position. Senator Santiago accepted her recommendation but a little too late.
Under Section 8 of the Rules of the Judicial and Bar Council, Rule No. JBC-10 provides
In case of recommen-dations, the acceptance by the recommendee must be made before the deadline. Applications or recom-mendations filed beyond the deadline will not be honored.
Senator Santiago’s acceptance of said recommendation was sub-mitted after the deadline, so it was consequently rejected.
JBC Member Sen. Francis N. Pangilinan moved for the extension of the deadline so that the name of Senator Santiago would be included. The JBC, however, reiterated its previous stand and denied said appeal.
Section 9 of the 1987 Consti-tution provides that members of the Supreme Court shall be appointed by the President from “a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.”
Instead of immediately sub-mitting to Malacanang the names of the three Senior Justices pursuant to Section 9, the JBC, however, planned to interview the three nominees in a public hearing on 01 December 2005.
In a letter dated 28 November 2005 addressed to Chief Justice Hilario G. Davide Jr., the twelve (12) Supreme Court Associate Justices vigorously objected to the public interview seriously contemplated by the JBC, enumerating cogent reasons for their opposition. Said letter is hereunder reproduced in its entirety:
28 November 2005
Chief Justice Hilario G. Davide, Jr.
Supreme Court
Manila
Dear Chief:
We write to express our alarm at the departure from established practice, one that has become part of our judicial tradition, in the selection of nominees for Chief Justice. We refer to the plan of the Judicial and Bar Council to interview, for the first time, sitting Justices of the Supreme Court nominated for Chief Justice
We do not agree with this new procedure for the following reasons:
1. Since the adoption of the 1987 Constitution, the JBC never interviewed nominees who were already incumbent Jus-tices of the Supreme Court.
Thus, the JBC did not interview Chief Justices Fernan, Narvasa and you. There is no sound reason to depart from this established practice.
2. The ostensible reason for interviewing the nominees is to find out how they intend to manage or administer the Judiciary, the assumption being the Chief Justice is the Chief Executive of the Judiciary. This assumption is a gross misconception. The Chief Justice is not the Chief Executive of the Judiciary or even of the Supreme Court.
Section 6, Article VIII of the 1987 Constitution is clear: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” Section 6 of the same Article states: “The Supreme Court shall have the following powers: x x x (6) Appoint all officials and employees of the Judiciary in accordance with Civil Service Law.”
Section 11 of the same Article further provides: “x x x The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.”
Thus, the Supreme Court en banc, not the Chief Justice, manages and administers the Judiciary. The Supreme Court en banc, not the Chief Justice, appoints and disciplines all personnel, other than judges and justices, of the Judiciary.
If the JBC intends to interview the nominees to find out how they intend to manage or administer the Judiciary, then such interview is pointless. Besides, there are only three nominees. The JBC will have to recommend all of them in any event since the President must choose from at least three nominees.
3. The JBC should instead exa-mine the judicial philosophy of the nominees. Sitting Justices of the Court express their judicial philosophy in their written decisions, including dis-sents. The JBC should find out whether the nominee’s judicial philosophy is what is best for the nation. The Chief Justice “leads” the Court and the Judiciary not as an executive manager for he is not one, but as an intellectual leader as expressed in his judicial philosophy.
Sitting Justices nominated for Chief Justice are unlike appellate court justices nominated for the Supreme Court. A sitting Justice of the Supreme Court expresses his judicial philosophy in his written decisions.
The JBC does not need to interview a sitting Justice of the Supreme Court to find out his judicial philo-sophy. All that the JBC needs to do is to scrutinize the decisions of the nominees. The JBC either agrees with the nominee’s judicial philosophy or not. A one-hour interview with the nominee will not change the nominees judicial philosophy.
In contrast, an appellate court justice does not necessarily express his own judicial philo-sophy in writing his decisions because whether he likes it or not he is bound, under stare decisis, to follow decisions of the Supreme Court.
Thus, the JBC needs to interview appel-late court justices to find out their own judicial philosophy, and whether such judicial philo-sophy is for the best interest of the nation.
4. Lastly, the JBC is under the supervision of the Supreme Court. Section 8(1), Article VIII of the 1987 Constitution states: “A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex-officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”
There is something inherently wrong when members of a subordinate body can accept or reject nominees of a superior body supervising such a subordinate body, on a matter involving the choice of presiding officer of the superior body, when the nominees all come from the superior body.
Such a situation is inconsistent with the order of hierarchy found in the 1987 Constitution. Such a situation could not have been the intent of the framers of the 1987 Constitution when they placed the JBC under the supervision of the Supreme Court. The established practice of automatically nominating the three most senior members of the Court for Chief Justice is more in accord with the consti-tutional provision placing the JBC under the supervision of the Supreme Court.
Consequently, we respectfully request the Chief Justice to convey to the Judicial and Bar Council our views on this important matter which we believe will have a lasting impact on the indepen-dence of the Supreme Court, a principle the 1987 Constitution zealously protects.
Thank you.
Very truly yours,
(Sgd.) Leonardo A. Quisumbing
(Sgd.) Consuelo Ynares-Santiago
(Sgd.) Angelina Sandoval Gutierrez
(Sgd.) Ma. Alicia Austria-Martinez
(Sgd.) Antonio T. Carpio
(Sgd.) Renato C. Corona
(Sgd.) Conchita Carpio Morales
(Sgd.) Romeo L. Callejo, Jr.
(Sgd.) Adolfo S. Azcuna
(Sgd.) Dante O. Tinga
(Sgd.) Minita V. Chico-Nazario
(Sgd.) Cancio C. Garcia
On 01 December 2005, the date of the scheduled public interview – the JBC decided not to conduct the interview.
Quoted hereunder is the report on the meeting of the JBC on 01 December 2005:
The Council, voting 6 in favor and one against, with the Chief Justice abstaining, granted the request contained in the letter dated 28 November 2005 of the 12 SC Associate Justices NOT TO CONDUCT INTERVIEW but with vigorous and serious objections to the substantive grounds relied upon.
The grant is solely on the ground that only three have been considered for nomination and since the Constitution requires that at least three names should be submitted to Malacanang, it necessarily follows that these three have to be recommended by the JBC. The interview is moot and academic.
One of the letter-writers is the third Member of the Court to be considered for nomination.
This is only pro hac vice, not to be a precedent for future action, where more than three are nominated or where outsiders are nominated, the Council shall proceed with the public interview.
The JBC shall submit to Mala-canang at the earliest opportunity three names to be considered for the position of Chief Justice in alphabetical order.
In the afternoon of 01 December 2005, the JBC forwarded the list of the nominees to Malacanang.
The position of Chief Justice of the Supreme Court is without question of great importance. The Judicial Depart-ment is the third branch of government which is co-equal with the Executive and Legislative Departments.
The Chief Justice is the fifth in line of constitutional succession.
Would it not diminish the dignity of the Office of Chief Justice if the Chief Justice who would be appointed would be subjected to a public hearing by the Judicial and Bar Council primarily to determine his competence or his ability to administer the judiciary? As plainly stated in the said letter of the 12 SC Justices, “it is the Supreme Court en banc, not the Chief Justice that manages and administers the Judiciary.” Perforce, it is not necessary to interview the nominees for Chief Justice to find out how they will manage or administer the Judiciary.
The JBC already interviewed the three Justices when they first applied for the position of Associate Justice. Their experience as Associate Justices for years surely has increased their competence.
Their well-written ponencias, concurring opinions, and sometimes scathing dissenting opinions in celebrated cases are an open book and striking evidence of their competence and qualifications. Their judicial philosophy is clearly expounded in several landmark cases. It is, therefore, superfluous and an exercise in futility if said nominees would be subjected to a public interview by the Judicial and Bar Council.
Congratulations to the outgoing Honorable Chief Justice Hilario G. Davide Jr. for a job well done. Congratulations also to the new Honorable Chief Justice Artemio V. Panganiban.
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