Saturday, September 25, 2004

Increased judicial costs

Increased judicial costs

Updated 10:00pm (Mla time) Sept 25, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 26, 2004 issue of the Philippine Daily Inquirer

I RECEIVED a letter from a former student of mine from San Beda College who is now practicing law. He requests my support for his "respectable" objections to the recent amendment by the Supreme Court of Rule 141 of the Revised Rules of Court as "contrary to the basic principle of immediate and inexpensive accessibility of our courts to the people."

In his letter to the Integrated Bar of the Philippines, which he hopes will seek a reconsideration of the Rule, lawyer Rex G. Rico focuses on Sec. 8 (p) and Sec. 21 (b) of the Rule which charge:

(p) For any other services as clerk not provided in this section, one hundred P100.00 shall be collected.

(b) For motions for postponement (whether verbal or written), after completion of the pre-trial stage, two hundred. For any other motion, two hundred (P200.00) Pesos.

Rico says that the clerk of court is paid a regular salary plus allowances for performing services inherent in his position which should therefore not be subject to special assessment to be paid by the lawyer or his client. If, for example, there is a need to examine judicial records as guaranteed by the right to information under the Constitution, will the clerk refuse such examination unless the fee of P100 is first paid?

Rico notes that the Rule does not distinguish between justified and unjustified motions, which are both subject to the prescribed fee. "There are motions that are justified, e.g., sickness or death of a lawyer or witness, flood or inclement weather, unresolved incidents before trial can proceed, like a motion to dismiss or demurrer to evidence."

To assess all kinds of motions without distinction is, he says, "counter-productive to the goal of speedy, just and inexpensive determination of cases. It may even be ridiculous." Most motions are, in fact necessary save only those that are dilatory or capricious.

"During the trial, may the judge refuse to rule on oral motions to strike out answers to questions for being irresponsive, hearsay, irrelevant, etc., or exclude other witnesses inside the courtroom not set to testify in that scheduled hearing, or motions to mark as exhibits certain documents/physical evidence, or oral motions for direct contempt made during trial for rude or disrespectful conduct in the presence of the court, until the assessments for such motions are paid?

"I am of the impression that the primordial reason for assessing motions for postponement, extensions and other dilatory motions is to discourage them and, hence, expedite early resolution and termination of cases. If so, why should a motion to resolve, for default, summary judgment, judgment on the pleadings, modes of discovery, etc. be assessed when they are the very instruments or vehicles for expeditious resolution of cases?"

Among the rules he invokes to support his request for a re-examination of the above-quoted sections and other questionable provisions of Rule 141 of the Revised Rules of Court is its Sec. 6, which provides that "these Rules shall be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding."

He also cites the provisions in the Bill of Rights, in addition to the Due Process Clause in Sec. 1, that "free access to the courts and quasi judicial bodies, and adequate legal assistance shall not be denied to any person by reason of poverty" in Sec. 11. He might have mentioned as well Art. VIII, Sec. 5 (5) that the Rules of Court to be promulgated by the Supreme Court "shall provide a simplified and inexpensive procedure for the speedy disposition of cases." (Emphasis mine)

Rico hopes that I may have other changes to suggest but the truth is that I have not yet read Rule 141 as amended and can only comment on his own criticisms of the above-quoted sections, which I believe require careful consideration by the Supreme Court. For the nonce, I will only say that in characterizing motions as "verbal or written," the Rule seems to think that a written motion is not verbal. I think the phrase should be rewritten as "oral or written," both of them being verbal, of course. Judges should be careful even if Webster is not.

The IBP has already made representations with the Supreme Court for the re-examination of the revised fees that have provoked a lot of respectful (if quiet) opposition from the Philippine bar. Like other sectors of our society, we are already reeling from the increasingly unbearable burden of the cost of living. The thought that the increased fees are supposed to provide for the convenience or benefit of the judiciary, including the Supreme Court, gives scant comfort, indeed, to us poor practitioners.

The latest report is that the Supreme Court has suspended the application of some of the protested fees. I hope that in moving for reconsideration of Rule 141, the IBP has not been charged the prescribed fee of P200.

The insatiable hundred leeches

The insatiable hundred leeches

Updated 10:16pm (Mla time) Sept 24, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 25, 2004 issue of the Philippine Daily Inquirer

I AM one of the many outraged people who almost retched at the shameful list published by the Inquirer the other Thursday of the 100 individuals who, in 2001 and 2002, received annual salaries and other perquisites of from P1 million to as much as P9 million of public funds as executives of government corporations.

I could hardly believe the cupidity of these people who could collect such unconscionable benefits without even a little decent hesitation, much less guilt, despite the serious financial difficulties of our government and the people's day-to-day cost-of-living problems that are threatening the very survival of our nation. Their callous disregard of the general suffering of their unfortunate countrymen reminds me of the insensitiveness of the French nobility who flippantly said, as they gloated over their doomed birthright, "After us, the deluge!"

Who are these privileged scroungers that they should be allowed to suck the very lifeblood of our country dry like insatiable Draculas? Are they of such incredible intelligence or insurmountable abilities that they stand head and shoulders above the rest of us citizens who must make do with whatever little we earn because we do not share their supposedly Olympian qualities? Do they work to the bone 48 hours a day in their small and uncomfortable cubicles, dedicated solely to the work they are sworn to perform on behalf of the sovereign people who are paying their fabulous remunerations? In their obsession to serve their masters, do they purposely forsake their golf tourneys, or their games at the casinos, or, in the case of the boss ladies, their appointments with their manicurists and hairdressers?

I happen to know some of the chosen people on the list and am not impressed at all by their qualifications. They are by and large ordinary persons who have been made extraordinary only by the income they are receiving like manna from an over-indulgent heaven. This is not mere sour grapes. The Mischosen One Hundred are where they are now because they have the right ties with the Appointing Power whom they have pleased not with their virtues but with their vices of political support, financial contributions, or marital relationship by consanguinity or even remote affinity. In our deranged society, what matters most for financial success in the public service is not competence and integrity but, simply, Connections.

Thus, as noted in the Inquirer editorial on the same subject, one of the highest paid among the misbegotten hundred can hardly speak acceptable English; it is certainly not an indispensable qualification that one should be able to speak with a false Harvard accent, but one receiving a salary in the millions of pesos should, I think, at least be able to speak the language fluently. This is not snobbishness but simple respectability for what is appropriate in certain situations. It is like Bayani Fernando's rule against men appearing topless in the streets of Metro Manila in utter disregard of decency and common courtesy.

I am reminded of that time my wife and I were having lunch at the Max's Restaurant in the Magallanes subdivision in Makati City when a man in a “sando” [undershirt] entered and was allowed to sit down and eat with the other people who were all properly dressed. When I talked to the manager the next time I was there, I complained about the intruder who had not paid proper respect for the other customers. The manager said, "You know, sir, the customer is always right," and I replied, "I am also a customer, and I felt offended by the man's discourtesy." I have not gone back to that restaurant because it does not enforce a dress code for its customers in the interest of propriety and politeness.

A similar code should be enforced in the hiring and paying of the executives in government offices where the salary standardization law is not applied. The fact that the sky's the limit in fixing the perquisites of their top managers does not mean that they can go whole hog and misappropriate the people's money as far as their lenient charters allow them to gratify their private caprices. Even at home, we should be properly dressed at meals, and more so should we be polite when eating outside in the company of other people. By the same token, the lack of reasonable restrictions in fixing the compensation of certain privileged officials does not justify their receiving such compensation without limit or shame.

Congress should make a careful re-study of the liberal charters of these government-owned or -controlled corporations and other government agencies whose officials revel in the unbelievable extravagance of millions of public funds unjustly paid to them by themselves. The President, for her part, should exercise more control over such corporations, beginning with the more careful appointment of their extraordinarily privileged executives who are enjoying regal treatment in this allegedly democratic land.

Sunday, September 19, 2004

An acting regular appointment

An acting regular appointment

Updated 10:03pm (Mla time) Sept 18, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 19, 2004 issue of the Philippine Daily Inquirer

WITHOUT presuming to know better than the Supreme Court, I venture the opinion that the current petition of the opposition members to nullify the acting appointments of President Macapagal-Arroyo to the Cabinet and other high positions, effective immediately, does not have a sporting chance. It is, as we lawyers say, doomed ab initio.

It is true that during the congressional session, the President may only nominate instead of immediately appointing officers subject to confirmation by the Commission on Appointments. Thus, the Constitution says in Art. VII, Sec. 16, that the President “shall nominate and, with the consent of the Commission on Appointments, appoint” such officials. The effect is that such officials can assume their positions only after their formal appointment following the confirmation of their nominations. This kind of appointment is called the regular appointment, which can be made only while Congress is in session.

It is different from the other kind of appointment the President is authorized to make, and that is the ad interim appointment. This is made during the congressional recess, when the Commission on Appointments is also in recess and so cannot check beforehand the appointments of the President. Such appointments are effective immediately, but they may be approved or rejected by the Commission on Appointments when it assumes its sessions with the end of the congressional recess.

The process, in other words, is reversed. The regular appointment cannot be made without the previous approval by the Commission on Appointments of the corresponding nomination, but the ad interim appointment can be made immediately, without need of a prior nomination. It is still subject to the action of the Commission on Appointments, but this must come later, not before such appointment.

The reason for the ad interim appointment is the rule prohibiting the Commission on Appointments from meeting while Congress is not in session. The appointments body must also be in recess. During the interim, some offices have to be filled to prevent disruption of urgent services, as in vacancies in the Cabinet or the judiciary. Inaction on these positions will prejudice the public interest for lack of the proper officials to perform their functions. So, while the regular appointment cannot be made, the ad interim appointment must be employed in the meantime.

But what about the regular appointee, who cannot assume his duties as long as his nomination has not yet been confirmed by the Commission on Appointments? Will not the public interest also suffer as a result?

Not necessarily, because the nominee, while waiting for his regular appointment pending his confirmation by the Commission on Appointments, can be extended an acting appointment to the same office. As an acting appointee, he does not need prior approval by the Commission on Appointments and so can assume office and discharge its functions immediately.

An acting appointment is temporary in nature and is supposed to be made while the appointing authority is looking around for a suitable person to fill the office as a regular appointee with the required qualifications. The regular appointee cannot be separated from his office except for cause unlike the acting appointee whose services can be terminated at any time with or without cause as an implied condition of his appointment. In theory, the acting appointee is chosen to fill in the gap, so to speak, a sort of temporary substitute for lack of a better qualified person who can be trusted to perform the duties of the office he can occupy competently and permanently.

That is the theory, but the practice is different. The acting appointment is given to the very person nominated for regular appointment; so, he is not a space-filler but the person intended to occupy the office permanently. While his nomination is still under study by the Commission on Appointments, he discharges to the full all the powers and enjoys completely all its perquisites and privileges. Worse, if he is denied confirmation or is by-passed, which used to be a charitable way of rejecting the nominee, he is extended a new acting appointment, and another, and still another, ad nauseam, until his nomination is finally confirmed after much arm-twisting from the President. That is how the purposes of the Constitution are mocked and violated.

President Ramos appointed Frank Drilon acting secretary of justice every time his nomination for the same position was by-passed by the Commission on Appointments, at least seven times, if I remember right. His nomination was finally confirmed, and it was then that he was extended a regular appointment to the office he had been discharging in an acting capacity. Nobody questioned his status then, but the opposition is now raising the constitutionality of the practice before the Supreme Court, and I think correctly.

Hoping I will not be punished for contempt for pre-empting the decision of the Supreme Court, I make the fearful forecast that the petition will be dismissed, and I think incorrectly.

Saturday, September 18, 2004

A curious case

A curious case

Updated 09:57pm (Mla time) Sept 17, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 18, 2004 issue of the Philippine Daily Inquirer

A CASE involving millions of public funds allegedly misappropriated, a Compromise Agreement claimed to have been entered into in violation of the Anti-Graft and Corrupt Practices Act, the Local Government Code and other laws, valuable real estate now occupied by the Provincial Capitol Building of Cavite and other public structures, and an Amended Decision sustaining the Compromise Agreement is expected to be filed momentarily before the Court of Appeals to restrain the enforcement of the said decision and eventually annul it.

The petitioner is Juanito Victor C. Remulla in his capacity as vice governor of Cavite and as an ordinary citizen and taxpayer. Among the respondents are RTC Judge Aurelio G. Icasiano Jr. of Trece Martires City, Erineo S. Maliksi as governor of Cavite, Renato Ignacio as legal officer of the province, the owners of the property subject of the controversy, and others.

The case goes back to 1981 when the province of Cavite instituted expropriation proceedings against lands consisting of 250,000 square meters with a market value of P0.86 per sq m, for a total market value of P215,000. The province entered the whole property on Jan. 4, 1982, with the permission of the court. In their answer to the complaint, the owners claimed that the current market value of their property was P45 per sq m or P11,272,500 for the entire area.

In 1992 a committee on appraisal appointed by the court reported that the value of the land was P500 per sq m. In 1997 a new appraisal committee increased the valuation to P2,800 per sq m, which the province sought to reduce in 2003. Then in December of that year, Governor Maliksi and Ignacio as legal officer of the province, entered with the respondents in the expropriation case into a Compromise Agreement that is now the bone of contention in the petition to be filed by Remulla.

Under this agreement, the province of Cavite and Trece Martires City will retain only 116,287 sq m of the 261,250 sq m of the expropriated land, the rest to go back to the respondent owners. The province and the city will pay the defendants P50 million, and the expropriation complaint will be withdrawn. Without authority from the Provincial Board of Cavite, Icasiano joined the respondents in the expropriation case in asking for the approval of the Compromise Agreement by the court, which was granted by Judge Aurelio Icasiano Jr. in a decision issued on March 18, 2004. This was modified in the Amended Decision of March 25, 2004 which will be challenged on the several grounds to be raised in the petition.

The most questionable provision of the Compromise Agreement is the payment of P50 million to the defendants in the expropriation case by Trece Martires for the reduced area of land to be retained by the former expropriators. It is the rule in expropriation cases that the just compensation for the condemned land should be its value at the time of its taking, which in this case was 1982. Its value then was only P0.86 per sq m, or only the total sum of P215,000 for the original bigger area. Even at the defendants' price of P45 per sq m, the entire area (which was reduced by the Compromise Agreement) would have been only P11,272,500. Yet for the smaller area to go to Cavite and Trece Martires, they will now have to pay the owners a whopping P50 million.

In Republic v. Castellvi, 58 SCRA 336, the government entered the property as lessee in 1947 and renewed the lease annually until 1959, when it decided to expropriate the land. In determining just compensation, the owner said it should be based on the value of the property in 1959, with all the improvements introduced by the government, but the plaintiff said it should be 1947, when the property did not cost much. The Supreme Court held that the land should be appraised as of 1959, for that was when the government entered the property not as a mere lessee but as a permanent taker.

As Cavite and Trece Martires took the property in 1982, it should not be appraised as of 1997 as was done under the Compromise Agreement. The governor should have continued with the expropriation, especially since the land was already in the possession of the province and the city. The Compromise Agreement waived that advantage and might be considered greatly prejudicial to the government as to constitute a corrupt act under the graft law. The omission to first get the approval of the provincial board before entering into such agreement, and without the necessary appropriation made for the prescribed payment, makes the transaction doubly suspect.

Vice Governor Remulla has other objections he intends to raise when he brings this serious matter to the Court of Appeals. Whether he succeeds or not, he will be doing a useful service to the people by informing them of this vital issue that affects them as concerned and curious citizens.

Monday, September 13, 2004

Leadership By Example

Leadership by example

Updated 00:52am (Mla time) Sept 12, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 12, 2004 issue of the Philippine Daily Inquirer

LIKE an old maid teacher, President Macapagal-Arroyo gave the public servants under her constitutional control in the executive department a caustic talking to. She declared that the country was in a period of austerity and everyone must be frugal. No more frivolity, enough of extravagance. This is a time for belt-tightening and personal sacrifice.

Accordingly, her Administrative Order 103 rules out "lavish lifestyles" and, as summarized in this paper, calls for the "suspension of local and foreign travels, seminars, parties and sports activities, new benefits to officers and employees, payment of overtime pay, and procurement of new vehicles."

She also decreed a 10 percent cut on "the services of consultants, technical assistants, contractual and casual employees," and stopped "the grant of honoraria or allowances for teaching personnel, lecturers, resource persons, coordinators or facilitators... chairs and members of boards, councils or entities not paid salaries but honoraria."

Although the AO is addressed only to personnel in the executive department, it is hoped that the legislative and judicial departments, as well as the constitutional commissions, will apply similar rules to cooperate in the current effort to cope with the financial crisis facing the nation. After all, it is not only in President Arroyo's department that public funds are callously misspent as if there were no tomorrow.

The Commission on Elections, for example, should sell the luxury cars it purchased two years ago in excess of the adequate official vehicles its members were already enjoying. I criticized it in this column for its extravagance, but not many paid attention, least of all the other government offices that were similarly overspending public funds for their own caprice.

For a government so poor it cannot even build enough schools for our children, it is heart-rending how our public officials overspend public funds for their own convenience and vanity. The best illustration of such prodigality is the junkets enjoyed by the legislators costing millions of pesos yearly. The wasted public funds are better devoted to the urgent needs of the people, like more hospitals and free medicines for the poor.

On the same day President Arroyo issued AO 103, the papers also reported her trip to China. She took with her as part of her official delegation her spouse who, as First Gentleman acquired official character (although Sir Dennis Thatcher kept a low profile and did not accompany his wife during her diplomatic travels abroad). Five department secretaries went along with their respective support staffs, as well as Ms Arroyo's own alalay like probably her hairdresser and manicurist.

All the members of what Secretary Ignacio Bunye described, I suppose with tongue in cheek, as the smallest official delegation ever sent by our government, enjoyed free transportation, board and lodging, and tourist attractions at the expense of either the government of the Philippines or of the host country.

But that is not all. The President also had an unofficial delegation consisting of members of her family, including their domestic help. Besides her son, Rep. Mikey Arroyo, and her brother-in-law, Rep. Ignacio Arroyo, who were part of the official delegation on recommendation of Speaker Jose de Venecia, her other son Dato, her daughters-in-law Angela and Kakai, and her grandchildren Mikaela Gloria and Eva Victoria, with their respective nannies, went along. Only her daughter Luli stayed home and missed all the fun.

Although Bunye insisted that the Philippine government did not shoulder the expenses of the members of the unofficial delegation, he could not say how much they had spent or who may have paid for them. There would have been many offers to curry favor with the First Family. But then, of course, the President herself would have been happy to foot all the bills in exchange for the sheer pleasure of having her whole family, except her only daughter, savoring all the delights of the China trip.

The only blight on her family excursion was its effect on AO 103 where she asked the people to undergo personal privation to resist the economic problems confronting the nation. She urged her co-workers in the executive department to be more prudent in the use of public funds and property and avoid wasteful and excessive spending. "Profligacy brings shame not only to their employers and respective agencies," she intoned, "but also to me and the entire government."

President Arroyo reminds me of the physician who cannot heal himself. Her abjurations against ostentation and improvidence in a time of acute want apply to others but not to her whose insensitive "profligacy" constitutes the leadership by example that the people cannot stomach. It is like an insult to the overburdened people who are reeling from the higher cost of food, and gasoline, and power rates, and heavier taxes.

It is like telling us to endure our pains while she and her family enjoy themselves. It is like saying we must grin and bear our troubles instead of attacking their privileged pleasures. It is like Marie Antoinette's unfeeling advice that the peasants should eat cake if they cannot have bread.

* * *

A published notice of the Judicial and Bar Council lists me among the candidates for chairman of the Legal Education Board. I am not interested in the position nor have I applied for it. I thank whoever may have nominated me, but I must decline the kindness.

Saturday, September 11, 2004

The American Presidents

The American presidents

Updated 07:06am (Mla time) Sept 11, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A12 of the September 11, 2004 issue of the Philippine Daily Inquirer

AS has become habitual with him, my son Caloy brought me another book he knew would interest me. It's "The History of the American Presidency," a new work by John Bowman that immediately appealed to me because I was born and grew up during the US administration of our country although I am not at all an Amboy. It's the size of a coffee-table book and beautifully printed in China with color portraits and reproductions of some popular paintings. Its most important parts are, of course, the articles about the 42 presidents of the United States from George Washington to George W. Bush. The length of each article depends on the importance of the subject.

I finished reading the book and looking at the pictures in one sitting. I learned a lot about the men who have occupied, deservedly or not, what is now the most powerful office in the world. For example, many people, including the Americans themselves, hardly knew Harry S. Truman when he became president upon the death of the popular Franklin D. Roosevelt, who was elected all of four times, the only one who holds that record. Yet Truman is now rated as one of the great presidents although, and this is another supposed shortcoming, he was not an intellectual like Woodrow Wilson or at least entered college, even a third-rate one, like Richard Nixon.

In fact, there were presidents who did not receive little or no formal schooling and yet received the trust of the American electorate. Among them were George Washington and Abraham Lincoln, the foremost US heroes whose faces are immortalized in granite in that famous sculpture at Mount Rushmore. Washington stopped going to school when he was 15, and Lincoln attended school for less than a year. But as president, Washington had as advisers the erudite Thomas Jefferson and John Adams, who also both became president, and Alexander Hamilton, the learned leader of the Federalists. Lincoln, by self-study, became a lawyer; he was one of the wisest statesmen among his peers and saved the Union during the Civil War. His excellent English has not been equaled by other presidents before or after him.

Besides Washington, several other generals followed him to the presidency, namely, Ulysses S. Grant, William Henry Harrison, Zachary Taylor, Rutherford Hayes, James Garfield, Chester Arthur, and Dwight Eisenhower. None of them was known for scholastic distinction although Eisenhower was president of Columbia University before he became president of the United States. Jackson was also a lawyer like Martin Van Buren, Millard Fillmore and Grover Cleveland. He introduced the spoils system in American politics besides vulgarizing his high office, which was occupied before by the aristocrats and intellectuals from Virginia.

Most of the 42 presidents graduated from college. The others stopped formal studies at a young age or started it late in life, among them, in addition to Washington and Lincoln, Jackson, Van Buren, Taylor, Fillmore, Andrew Johnson, Cleveland, and Truman.

Those who were denied a second term are Adams, his son John Quincy, Van Buren, Tyler, Polk, Fillmore, Pierce, Buchanan, Andrew Johnson, Hayes, Arthur, Benjamin Harrison, Taft, Hoover, Ford, Carter, and Bush Sr. Garfield, McKinley, and Kennedy were assassinated, while Harding and William Harrison died in office of natural causes. As initially constitutional successors, Coolidge, Truman and Lyndon Johnson later won presidential election in their own right but all three declined re-election.

Only two of the presidents have been impeached--Andrew Johnson, who escaped conviction by one vote, and Clinton, who was acquitted. Nixon avoided impeachment and almost certain removal because of the Watergate scandal; he chose to resign, the only president in American history to do so. Warren Harding was generally disfavored for his incompetence that he himself admitted. His term was marred by the Teapot Dome scandal involving some of his top cronies and members of his Cabinet, and he died under suspicious circumstances at the height of the exposé.

Among the least controversial presidents were Eisenhower, who served during "the era of good feelings" after World War II and Ronald Reagan, the former actor who was also reelected with the highest electoral vote so far. John F. Kennedy was popular because of his style and charisma, as well as his beautiful First Lady, the enchanting Jackie. His worst embarrassment was the Bay of Pigs fiasco and his most notable achievement was his confrontation with Khrushchev during the Cuban missile crisis.

History has yet to give its verdict on current President George W. Bush, who is now running for another term. He got a dubious victory over Al Gore in 2001 who won the popular vote but lost the electoral vote in Florida where Dubya's brother was the governor. Bush launched that unpopular invasion of Iraq which he is now hard put to explain to the American voters.

The book offers the longest articles to Washington, Jefferson, Lincoln, Grant, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Kennedy, Lyndon Johnson, and Nixon, obviously because of their achievements, and George W. Bush, probably as a courtesy to the incumbent.

Saturday, September 04, 2004

Knocking at the Portals of the Bar

Knocking at the portals of the bar

Updated 09:34pm (Mla time) Sept 04, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 5, 2004 issue of the Philippine Daily Inquirer

TODAY being the first Sunday of September, it will mark the beginning of the annual bar examinations to be held on the four weekends of this month. According to the Bar Confidant of the Supreme Court, 5,422 applicants have registered to take the tests, 3,002 being first timers and the rest repeaters. The fee of the former is P2,250 and the latter pay an additional P250 per failure. All of them will be subjected to the same examinations.

The subjects of the examinations are Political Law and International Law in the morning and Labor Law in the afternoon for the first Sunday, Civil Law and Taxation for the second Sunday, Commercial Law and Criminal Law for the third Sunday, and Remedial Law and Legal Ethics and Practical Exercises for the last Sunday.

The examinations will be a gauge not only of the candidates’ abilities but also of the examiners’ competence to test them. One could say that at the time of the examinations, the average students, and more so the exceptional ones, know more law than the examiners. But this has got to be proved by the candidates to the satisfaction of the examiners.

The examiners are usually and not necessarily especially conversant with the subject assigned to them. I have suggested that the examiners be experts or at least knowledgeable of their respective assignments, but this has been rejected on the ground that they will tend to be unduly strict with the examinees.

This is how professors are with their students in the better law schools, but the Supreme Court seems to prefer the examiners to be less informed than the examinees. This has resulted at times to the prejudice of the examinees.

Decades ago, an examiner simply copied his questions from a quizzer without even changing the names and the dates in the problems; worse, they called for the application of old decisions, not the current doctrines the students had studied. That examiner could not even compose his own original questions, and it is doubtful if he knew the new answers to the old questions he plagiarized.

Only a few years ago, the examiner asked for the distinctions between recognition de jure and de facto of states, instead of governments. In that same examination, the examiner spoke of the budget and the general appropriations bill as if they were synonymous when professors in Political Law make it a point to distinguish between the two terms.

In my own examination in 1951, we were asked what kind of nuisance a bagoong factory was, and I correctly wrote it was per accidens. When I got my examination notebook five years later, I found that answer with a big cross. The examiner held the nuisance as per se and therefore could be abated summarily, that is, without judicial permission. I was deducted for being right.

And, yes, when I used the word “trifling,” that superficial fellow encircled it as wrong, thus confessing that he was also deficient in vocabulary. That examiner will be nameless here for pity’s sake, but God rest his soul in the purgatory of the ignorant.

Problems like these may be due to the practice of confining the identity of the examiners only to the chair of the bar examining committee and the Chief Justice, who are thus the only persons who can judge their competence. The rest of the justices learn their names only after the examinations, when the results are submitted to the banc for its approval and it is too late to make amends.

The reason for such secrecy is to prevent undue identification of the examiners and their possible subornation. Even without such precaution, however, irregularities have happened in the bar examinations, probably as a result of such disclosure or some other corrupt cause. The test in Taxation was invalidated years ago and Commercial Law only last year for leakage of the questions, and during the 1920s an honorable justice resigned when his niece falsified the bar results.

The end of the examinations is celebrated by the candidates like a thorn that has been pulled out (“nabunutan ng tinik”) with parades, music, dancing in the streets, and delirious howling. Many of the examinees will release their tensions in beer. Most of them will go out with their spouses or sweethearts and enjoy those pleasures they denied themselves during the past four weeks.

What will follow next are the months of prayer, worry, hope and despair as they await the release of the results of the tests. These will determine if they will become lawyers after their years of study, or they should study some more and take another examination, and perhaps another, and still another, if they should be so unlucky or plain undeserving to enter the fastidious portals of the bar.

I pray for the bar candidates, having also endured their anxieties. I hope all of them will pass the examinations with the help of St. Judas Thaddeus, the patron saint of the impossible, and become honorable members of the greatest profession in the world.

Hogging the Pork Barrel

Hogging the pork barrel

Updated 00:28am (Mla time) Sept 04, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 4, 2004 issue of the Philippine Daily Inquirer

KUDOS to Senators Joker Arroyo, Panfilo Lacson, Alfredo Lim and Manuel Roxas for joining Senate President Franklin Drilon in giving up their pork barrel allocations in the current general appropriations bill. They deserve the highest praise for their selflessness compared to the continuing greed of their colleagues who have clung to their dubious perquisites despite general public disgust over their imperviousness to the serious financial crisis of the country that requires sacrifice from everyone, especially its leaders.

Some of those who are reluctant to give up their extraordinary privileges are trying to justify their cupidity by arguing that they have certain commitments and promises to fulfill to their constituents, who are the ones ultimately to suffer with the abolition of the pork barrel. That is hogwash, of course. They are just being piggish because their real intention is to advance their own finances, not only through transfer of some of their pork barrel allocation to their own personal accounts but also through the exaction of the usual kickbacks from crooked contractors for the public projects to which the rest of their fund is devoted.

Especially hypocritical is the change of heart of some party-list representatives who were so opposed to the pork barrel, calling it a massive theft of public funds, when they were still private citizens and not honorable members of the House of Representatives. Now they are singing a different tune as potential beneficiaries of the very abuse they attacked so self-righteously and doggedly before. It is possible that their previous commendable stand against the pork barrel might have been one of the reasons why their party was favored by the electorate, but that is no longer important. So soon have these pretenders blithely rejected their past principles in favor of present profits.

House Speaker Jose de Venecia has launched a donation campaign to induce his colleagues in the House of Representatives to make personal donations to the government in order to lighten the current financial crisis. He has himself given P1 million of his own money to what he calls a Freedom Fund to reduce the national deficit. He is hoping others will follow suit, with the 5,000 richest families to also contribute P1 million each, for a total amount of P5 billion. This would not include the sums that could come from the congressmen themselves which could make up a tidy fortune, too if they would be so generous.

Having a suspicious mind when it comes to politicians' supposedly affirmative gambits, I have the feeling that the Speaker's donation campaign has a secret egocentric and ungenerous motive. While conceding and praising its announced purpose, I think it is also a scheme to save the pork barrel. The leader of the House knows the sentiment of its members, and that sentiment is selfish. There are a few conscientious souls in that suspect chamber who detest the pork barrel and are prepared, nay, determined, to kill it once and for all. However, the great majority of the chosen representatives of the people in the lower (the "l" is not capitalized) House are prepared, nay determined, to save it.

Perhaps Speaker De Venecia is hoping that if his Freedom Fund succeeds and is moreover supplemented with the voluntary donations of the members of the House of Representatives, it will no longer be necessary to talk about removing or reducing the pork barrel. The current effort against it will be abandoned and Congress can quietly go back to the old happy system and continue enjoying the perquisites the senators and representatives have been maintaining in the general appropriations law every year.

That's a bad dream, or better still, a nightmare if you will. The current financial crisis, coupled by the increased revulsion against this monstrous abuse of the people's money by the grasping few in Congress and Malacañang, can no longer save the pork barrel. Attacking it before was merely fashionable and pro forma for public consumption, and not many people paid attention. President Joseph Estrada was dutifully applauded when he announced its abolition as a major policy of his administration, but nobody complained when the pork barrel remained untouched. But it is different now because the people are fed up and the public treasury is washed up.

It is incredible that, according to verifiable statistics reported in this paper, the members of Congress receive a total of P20 billion in pork barrel allocations every year -- P65 million for each representative and P200 million for each senator. That fantastic amount could be better used to serve more urgent public needs like the establishment of more schools, health centers and hospitals, the purchase of medicines for the needy, the hiring of better teachers and the increase of their salaries, the construction of feeder roads, and other projects designed to improve the life of the sovereign people. The government has neglected this basic obligation, in favor of the abusive few who enjoy the pork barrel.

How much longer will the nation endure this tyranny of avarice? There must be an end to its supine toleration by the suffering people.