Monday, October 05, 2015

The Supreme Court does not have jurisdiction to impose the proper disciplinary action against civil registrars.

The Clerk of Court of the Shari'a Circuit Court wears two hats: first, as Clerk of Court of the Shari'a Circuit Court, and second, as Circuit Registrar within his territorial jurisdiction. Although the Constitution vests the Court with the power of administrative supervision over all courts and its personnel, this power must be taken with due regard to other prevailing laws.
While civil registrars are members of the Judiciary as Clerk of Court of the Shari'a Circuit Court, a review of the complaint reveals that the complainant seeks to hold the registrar liable for registering the divorce and issuing the Certificate of Registration of Divorce pursuant to his duties as Circuit Registrar of Muslim divorces. The test of jurisdiction is the nature of the offense and not the personality of the offender. The fact that the complaint charges Abdullah for "conduct unbecoming of a court employee" is of no moment. Well-settled is the rule that what controls is not the designation of the offense but the actual facts recited in the complaint. Unless jurisdiction has been conferred by some legislative act, no court or tribunal can act on a matter submitted to it.
Under the Local Government Code the power of administrative supervision over civil registrars was devolved to the municipal and city mayors. Under the "faithful execution clause" embodied in Section 455 (b)(1)(x) and Section 444 (b)(1)(x) of the Local Government Code, in relation to Section 479 of the same Code, the municipal and city mayors, in addition to their power to appoint city or municipal civil registrars are also given ample authority to exercise administrative supervision over civil registrars.
At this juncture, it should be remembered that the authority of the Mayor to exercise administrative supervision over C/MCRs is not exclusive. The Civil Service Commission, as the central personnel agency of the government, has the power to appoint and discipline its officials and employees and to hear and decide administrative cases instituted by or brought before it directly or on appeal. Under Section 9 of the Revised Uniform Rules on Administrative Cases in the Civil Service, the CSC is granted original concurrent jurisdiction over administrative cases.
Consequently, it behooves the Court to also forward the subject complaint to the Office of the Mayor, Marawi City and to the CSC for appropriate action.[1]

[1] Mamiscal v. Abdullah, A.M. No. SCC-13-18-J, July 1, 2015.

Tuesday, September 15, 2015

Consequences of using a US passport

In Arnado v. COMELEC,[1] the Supreme Court held that an affidavit of renunciation of foreign citizenship is deemed withdrawn when a candidate uses a US passport after executing the affidavit. The candidate is disqualified from running for local office and a landslide victory cannot override the eligibility requirements.

[1] G.R. No. 210164, August 18, 2015.

On the validity of Quezon City's Socialized Housing Tax and Garbage Fee

The Validity of a Tax may be Determined by other Statutes
In Ferrer, Jr. v. Bautista,[1] the Supreme Court upheld the Socialized Housing Tax (SHT) of Quezon City. The City imposed a Socialized Housing Tax equivalent to 0.5% on the assessed value of land in excess of Php100,000.00. The Court held that this special assessment is the same tax referred to in Republic Act No. 7279 or the Urban Development and Housing Act of 1992. The SHT is one of the sources of funds for urban development and housing program.[2] The Court explained that:
...Aside from the specific authority vested by Section 43 of the UDHA, cities are allowed to exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities which include, among others, programs and project for low-cost housing and other mass dwellings.  The collections made accrue to its socialized housing programs and projects. The tax is not a pure exercise of taxing power or merely to raise revenue; it is levied with regulatory purpose. The levy is primarily in the exercise of the police power for the general welfare of the entire city. It is greatly imbued with public interest. Removing slum areas in Quezon City is not only beneficial to the underprivileged and homeless constituents but advantageous to the real property owners as well. The situation will improve the value of the then property investments, fully enjoying the same in view of an orderly, secure and safe community, and will enhance the quality of life of the poor, making them law-abiding constituents and better consumers of business products.
In the same case, the Supreme Court struck down Quezon City’s “garbage fee” saying that, among other reasons, it was inconsistent with Republic Act No. 9003 or the Ecological Solid Waste Management Act of 2000. The Court held that under that law: is clear that the authority of a municipality or city to impose fees is limited to the collection and transport of non-recyclable and special wastes and for the disposal of these into the sanitary landfill. Barangays, on the other hand, have the authority to impose fees for the collection and segregation of biodegradable, compostable and reusable wastes from households, commerce, other sources of domestic wastes, and for the use of barangay MRFs. This is but consistent with Section 10 of R.A. No. 9003 directing that segregation and collection of biodegradable, compostable and reusable wastes shall be conducted at the barangay level, while the collection of non-recyclable materials and special wastes shall be the responsibility of the municipality or city.
In this case, the alleged bases of Ordinance No. S-2235 in imposing the garbage fee is the volume of waste currently generated by each person in Quezon City, which purportedly stands at 0.66 kilogram per day, and the increasing trend of waste generation for the past three years. Respondents did not elaborate any further. The figure presented does not reflect the specific types of wastes generated — whether residential, market, commercial, industrial, construction/ demolition, street waste, agricultural, agro-industrial, institutional, etc. It is reasonable, therefore, for the Court to presume that such amount pertains to the totality of wastes, without any distinction, generated by Quezon City constituents. To reiterate, however, the authority of a municipality or city to impose fees extends only to those related to the collection and transport of non-recyclable and special wastes.[3]

[1] G.R. No. 210551, June 30, 2015.
[2] Section 43 of the law provides:
Sec. 43. Socialized Housing Tax. — Consistent with the constitutional principle that the ownership and enjoyment of property bear a social function and to raise funds for the Program, all local government units are hereby authorized to impose an additional one-half percent (0.5%) tax on the assessed value of all lands in urban areas in excess of Fifty thousand pesos (50,000.00).
See Ferrer, Jr. v. Bautista, G.R. No. 210551, June 30, 2015.
[3] Ferrer, Jr. v. Bautista, G.R. No. 210551, June 30, 2015.

Tuesday, August 04, 2015

No business taxes on petroleum products

The power of local governments to impose business taxes is found in Section 143. However, this power is subject to the explicit statutory limitation in Section 133(h) which prohibits local governments from imposing “taxes, fees or charges on petroleum products.”[1]

[1] Batangas City v. Pilipinas Shell Petroleum Corporation, G.R. No. 187631, July 8, 2015.

Monday, July 27, 2015

CE Casecnan Water and Energy Co. v. The Province of Nueva Ecija

Republic Act No. 9282 expanded the jurisdiction of the Court of Tax Appeals which now includes its exclusive appellate jurisdiction to review by appeal the decisions, orders or resolutions of the regional trial courts in local tax cases originally decided or resolved by the regional trial courts in the exercise of its original or appellate jurisdiction. It is the CTA which has exclusive jurisdiction over a special civil action for certiorari assailing an interlocutory order issued by the RTC in a local tax case.[1]

[1] CE Casecnan Water and Energy Co. v. The Province of Nueva Ecija, G.R. No. 196278, June 17, 2015. In National Power Corporation v. Municipal Government of Navotas (G.R. No. 192300, November 24, 2014), and City of Lapu-Lapu v. Philippine Economic Zone Authority (G.R. No. 184203, November 26, 2014), the Supreme Court already held that local tax cases include real property tax.

Mactan Cebu International Airport Authority v. City of Lapu-Lapu, et al., G.R. No. 181756, June 15, 2015.

The Mactan Cebu International Airport Authority is an instrumentality of the government; thus, its properties actually, solely and exclusively used for public purposes, consisting of the airport terminal building, airfield, runway, taxiway and the lots on which they are situated, are not subject to real property tax and respondent City is not justified in collecting taxes from petitioner over said properties.[1] MCIAA is vested with corporate powers but it is not a stock or non-stock corporation, which is a necessary condition before an agency or instrumentality is deemed a government-owned or controlled corporation. Like MIAA, petitioner MCIAA has capital under its charter but it is not divided into shares of stock.[2]

Amusement taxes

The Supreme Court declared section 14 of Republic Act No. 9167 as unconstitutional. It said that by earmarking the income on amusement taxes imposed by the local governments in favor of FDCP and the producers of graded films, the legislature appropriated and distributed local government funds (which are not legally within its control) under the guise of setting a limitation on the local governments’ exercise of their delegated taxing power. The Supreme Court held that this was a usurpation of the latter’s exclusive prerogative to apportion their funds, an impermissible intrusion into the local governments’ constitutionally-protected domain which negates the guarantee of fiscal autonomy to municipal corporations as mandated by the Constitution.[1]

Sunday, July 05, 2015

The end of cute: The return of common sense in environmental litigation

Two developments in Philippine law ended the debate on the contributions of Oposa v. Factoran[1] in environmental litigation. I have always been cynical about, and critical of Oposa; because I have yet to see what benefit the case brought to environmental protection. I will not repeat my attack on the case which has been published elsewhere.[2] I reiterate one criticism of Oposa that is relevant to my argument that this "novelty approach" to litigation that began in Oposa has been written off, probably unwittingly, by the Supreme Court.
The argument I made years ago was that "Intergenerational equity as articulated in Oposa has no practical effect. If the children had invoked their own right to a balanced and healthful ecology, the Supreme Court would have decided the case in the same way. Neither the issues nor the Court’s interpretation of the law would change."[3]
The Supreme Court proved that my argument is correct. The Court did this in two ways. The first was done five years ago though the implementation of the environmental rules.[4] The second way involved a that invoked the rights of marine mammals.[5] 
The environmental rules provide:
SECTION 5. Citizen Suit. — Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order.[6]
An examination of section 5 shows that invoking the rights of future generations, ironically after it was codified, is really pointless. The future generations cannot by themselves file a case to protect their rights. Only the present generation may do so, and when it does, what benefit does it acquire from invoking the rights of future generations? If all cases from this point on are filed on behalf of future generations in accordance with Section 5 the resolution of those cases will not differ had the case been filed by the present generation.
I repeat my position: Had the petitioners in Oposa invoked only their rights, the decision would have remained the same. Under the environmental rules, whether or a case is filed on behalf of future generations, the decision on the merits will remain the same.
This point is made clearer by the Court's decision on a case filed on behalf of marine mammals who were threatened by the exploration, development, and exploitation of petroleum resources. On the issue of standing, the Supreme Court held that because the Supreme Court had promulgated the Rules of Procedure for Environmental Cases, "the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws."[7]
In effect, there is no need to invoke the rights of non-human life forms if humans are co-petitioners in the suit. The Court did not rule on whether animals had standing to sue.
In both cases, the presence of human petitioners make the rights of future generations or other life forms irrelevant. In Resident Marine Mammals, the Court expressly makes this clear.
The only time invoking the rights of future generations or fauna will make a difference is if their rights are tied to the relief sought by petitioners. Do we seek greater relief because we are invoking the rights of the unborn? Are we asking the Court to protect the environment more because we should factor in the temporal impacts of present human activities? These concerns, however, were never part of Oposa.
Oposa was a novelty that served as a distraction at most. I have always maintained that the "ruling" on standing was never doctrinal[8] and that litigators have never invoked it because there was never any practical use for it. Why? Because litigants know that they only need to invoke their rights to prove standing. For decades Oposa has captivated the environmental movement only to fail it. We have been pursuing an idea that makes no concrete contribution to the protection of the environment. I hope these developments will knock the environmental movement to its senses so we can begin protecting the environment in earnest.

[1] G.R. No. 101083, July 30, 1993.
[2] Dante Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, 15 Geo. Int’l Envtl. L. Rev. 457, 457-485 (2003) and Dante Gatmaytan, Artificial Judicial Environmental Activism: Oposa v. Factoran as Aberration, 17 Ind. Int’l & Comp. L. Rev. 1, 1-28 (2007).
[3] Dante Gatmaytan-Magno, Judicial Restraint and the Enforcement of Environmental Rights in the Philippines, 12 Or. Rev. Int’l L. 1, 1-30 (2010).
[4] Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, (2010).
[5] Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771, April 21, 2015.
[6] Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, [2010].
[7] Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771, April 21, 2015.

Tuesday, May 05, 2015

UN: Anti-RH policies of ex-Manila mayors Atienza and Lim drove constituents deeper into poverty

UN: Anti-RH policies of ex-Manila mayors Atienza and Lim drove constituents deeper into poverty
The online news portal of TV5
MANILA - A United Nations committee says that two executive orders of former Manila mayors Jose Atienza, Jr., and Alfredo Lim got in the way of women's access to reproductive health services and contraceptives, consequently driving many constituents further into poverty as they were unable to manage the number of their children and suffered the consequences of unplanned pregnancies, unsafe abortions, and maternal deaths.

This was contained in a report issued last month by the United Nations Committee on the Elimination of Discrimination against Women.
The nongovernmental organizations Task Force CEDAW Inquiry, Center for Reproductive Rights, and International Women's Rights Action Network Asia-Pacific requested the UN Committee in June 2008 to conduct an inquiry into alleged violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) because of the implementation of Executive Order No. 0003 issued by Atienza in February 2000, which covered the provision of sexual and reproductive health rights, services, and commodities in Manila.

Citing the sanctity of life and the protection of the lives of the mother and the unborn, as provided by the 1987 Philippine Constitution, EO 0003 declared that Manila would take an "affirmative stand on pro-life issues and responsible parenthood."
This meant that the local government unit (LGU) would "uphold natural family planning ... while discouraging the use of artificial methods of contraception like condoms, pills, intrauterine devices, (and) surgical sterilization," among others.
While EO 003, according to the NGOs, did not "expressly prohibit" the use of these contraceptives, in practice, the executive order "severely limited women's access to sexual and reproductive health services and effectively resulted in a ban of modern contraceptives" in Manila.
During Lim's term beginning in 2007, the NGOs said that EO 003 continued to be implemented, and that another executive order, EO 030, was issued in 2011 which supposedly imposed a funding ban on artificial contraception.

The UN Committee asked the Philippine government to help them assess the information it gathered in 2008.

In 2009, the Philippine government had told the UN Committee that the Manila City Health Office refuted the allegations.

The UN Committee decided to launch an inquiry on the issue of accessibility of contraceptives in Manila in 2010, as headed by members Pramila Patten and Violeta Neubauer, who visited the city in November 2012 and met representatives of the Philippine Commission on Women, the Department of Health, the Department of the Interior and Local Government, the Department of Social Welfare and Development, and the Philippine Health Insurance Corporation (PhilHealth), among others.

They also interviewed Mayor Lim, the Manila City Legal Officer, representatives of the City Health Office, and officials of the City Department of Social Welfare.

They visited three health centers and Abad Santos Hospital, as well, and conducted interviews. They also talked to 60 women aged 19 to 49 years old, mostly from urban poor areas, and made trips to communities in Tondo, "where they were able to witness extreme poverty among urban households, many of which are headed by women."

The UN Committee found that, while the 1987 Philippine Constitution provided for the separation of Church and State, the Catholic Church still had "considerable influence on public policymaking" in the country, including that on reproductive health.

It also found that the implementation of EO 003 "resulted in the withdrawal of all supplies of modern contraceptives from all local government-funded health facilities, as well as in the refusal to provide women with family planning information and counseling other than ‘natural family planning' and brought misinformation about modern methods of contraception, including those methods listed on the World Health Organization Model List of Essential Medicines."

EO 003, said the UN Committee, also led to the discontinuation of the provision of supplies and information on modern contraception. All "relevant" medical personnel were trained in and provided information only on natural family planning methods.

"Authorities and medical staff interviewed all confirmed that instructions issued by Mayor Atienza to that effect continued to be implemented after February 2004," the UN Committee report said.

They also found that there was a ban on modern contraception in all public health facilities run by the Manila LGU, including hospitals, health centers, and lying-in clinics after February 2004.

The UN Committee also found that Mayor Lim continued to enforce EO 003 during his term.

"Interviews with women who had sought modern contraception in health centers and hospitals between 2007 and 2011 revealed that EO 003 was still enforced in practice, despite the Mayor's declared ‘pro-choice' policy," the UN Committee said.

The latter was defined under Mayor Lim's EO 030 as "allowing couples to exercise full and absolute discretion in deciding on which form of family planning to use conformably with their religious beliefs and practices."

But EO 030 also stated that the LGU would "not disburse and appropriate funds or finance any program or purchase materials, medicines for artificial birth control."

The UN Committee saw that the pro-choice policy under EO 030 "was not accompanied by the necessary means to make these choices available and affordable."

NGOs, donors, and other third parties were left to fill the gap which, under the Local Government Code of 1991, was actually delegated to the LGUs.

The implementation of both executive orders had a detrimental effect on poor women, driving "them further into poverty by depriving them of an opportunity to control and space their number of children."

According to the testimonies of the 60 women, they found it difficult to use natural family planning methods, "which many times contributed to tensions and conflicts with their husbands or partners and fostered domestic violence."

The UN Committee added that it witnessed "the damage on women's mental and physical health resulting from multiple pregnancies and their increased exposure to HIV/AIDS and other sexually transmitted diseases."

EO 003 "harmed disadvantaged groups of women, including poor women and adolescent girls, as well as women in abusive relationships."

Adolescent girls were also exposed to an increased risk of unwanted pregnancies and pregnancy-related injuries or death following unprotected or coerced sex.

EO 003's impact was compounded by the funding ban in EO 030, the UN Committee said.

It also called the efforts of the DOH in assisting the Manila LGU in providing reproductive health services "insufficient."

The delay in enacting a reproductive health law was another factor in the "unsatisfactory" response of the Philippine government to address the situation in Manila.

"The Committee observes that the lives and health of many women were put at risk, as they were compelled to have more children than they wanted or than their health permitted them to have. The Committee particularly takes notes of the potentially life-threatening consequences of unplanned and/or unwanted pregnancies as a direct consequence of the denial of access to the full range of contraceptive methods as well as of the strict criminalization of abortion without any exemptions provided for in the State party's legislation. Complications resulting from unsafe and illegal abortions are a prominent cause of maternal death in the City of Manila, as acknowledged by the State party," the UN Committee said.

The national government, it added, failed "to provide the full range of sexual and reproductive health services, commodities, and information (which) resulted in unplanned pregnancies, unsafe abortions, and unnecessary and preventable maternal deaths."