ISSUE №. 2VOLUME №. XVII www.palladiumonline.com facebook.com/palladiumALS @palladiumALS

ISSUE №. 2VOLUME №. XVII JANUARY 2014

L E G A L N E W S F E A T U R E L I F E S T Y L E

HOPING to align itself with the planned integration of the entire Association of Southeast Asian Nations (ASEAN) region by 2015, the Ateneo de Manila University (ADMU) is moving to shift its academic calendar from the current June to March schedule to an August to May timeline.

Last October 2013, the University notified the Ateneo community of the shifting proposal for both the Loyola and Professional Schools campuses through survey, which asked both students and parents for input. According to the primer on the proposed change, the Philippines

ADMU CONSIDERS NEw ACADEMIC CAlENDAR

and Thailand are the last remaining ASEAN countries with a June-March academic calendar.

Assistant Registrar Liwayway Bacani of the Ateneo Professional Schools said that the proposal will likely be implemented in 2015, unless the Commissioner on Higher Education orders otherwise. If approved, the shift will sync the ADMU academic calendar with that of its partner universities not only in the ASEAN network, but also across the globe.

Meanwhile, Ateneo Law School Dean Sedfrey Candelaria said that the administration will hold a consultation

with the law school faculty and community to map out a comprehensive plan, in response to the university-wide proposal.

ADMU Office of the Vice President for University and Global Relations (OVPUGR) noted that it is important that the University is able to mold graduates who have strong global awareness and outlook. For OVPUGR Assistant Teresa Ricafort-Santos, their ultimate goal is to improve the quality of education.

The University of the Philippines, De La Salle University, and the University of Santo Tomas are also considering a shift in their current academic calendars. P

By Erlaine Vanessa D. Lumanog

SUPERTYPHOON Yolanda, internationally known as Haiyan, struck the Philippines last 8 November 2013 and made its first landfall over Guiuan, Eastern Samar. The tropical cyclone affected various parts of the Visayas region, particularly Samar and Leyte. According to the National Disaster Risk Reduction and Management Council (NDRRMC), as of the latest update on 3 January 2014, the total death toll of Yolanda is at 6,166 individuals, injured at 28,626, and missing at 1,785.

The Ateneo community quickly responded and conducted relief operations at the Loyola campus for five consecutive days after its landfall.

Ateneo community

joins Yolanda

relief efforts

By Erlaine Vanessa D. Lumanog with Iris M. Pozon and Patricia Janelli A. Davide

THE ATENEO Law School (ALS), together with the Legal Education Board (LEB), the Philippine Association of Law Schools (PALS), and the Philippine Judicial Academy (PHILJA) held the inaugural program of the Eminent Person

Lecture Series at the Ateneo Professional Schools in Rockwell, Makati City last 27 November 2013. This landmark event featured Excma. Sra. Dña. Encarnacion Roca Trias, a member of the Tribunal

Tribunal Constitucional de España Judge visits ALS for Eminent Person Lecture Series

By Eleonor Dyan R. Garcia

THE ATENEO Law School went head-to-head with the University of the Philippines (UP) and came out victorious last 28 November 2013 in the first Philippine Forensic Evidence Invitational Moot Court held at the UP Malcolm Hall. The competition was sponsored by the Department of Foreign Affairs and Trade, American Bar Association, Australian Aid, the Center for International Law, and the Institute of International Legal Studies of the UP College of Law.

The school was represented by coach Atty. Angel Aguinaldo’s Legal Psychology and Evidence class, led by Martin Cusi (3B) and Iris Pozon (4D) as prosecutors, Ysabel Trinidad (4B) and Regine Magpantay (4C) as collaborating counsels, and Julian Presbitero (4C), Clarizel King (4D), and Dr. Patti Ramos-Syson (3D) as witnesses.

The team prepared for trial against established litigators Atty. Raymond Fortun and Atty. Harry Roque, who acted as defense counsel in the preliminary and encore rounds respectively.

The team also won awards for Best Pre-Trial Brief, Best Examiner (Martin Cusi), and Best Witness (Clarizel King). P

Ateneo beats UP in first Forensic Evidence

Moot CourtBy Iris M. Pozon

By Joseph Giancarlo C. Agdamag

ATENEO Law School, representing the Philippines, had successfully defended its championship title at the Asia Cup International Law Moot Court Competition held last 27 and 28 August 2013 in Tokyo, Japan. This year marks the Ateneo’s fifth win, making it the school with the most number of championships in the competition’s history since the inaugural cup in 1999. The Philippines also cemented its position as the country with the most wins, with nine cups.

The team was composed of Ateneo Society of International Law (ASIL) members Steffi Sales (2A), Leo Arman Galang (2B), Joseph Giancarlo Agdamag (3A), and Yul Araya (3A). They were coached by Atty. Mark Enojo and Atty. Marck Macaraeg, who are both ASIL alumni.

AlS REMAINS ASIA CUP

ChAMPION

Students volunteer at the relief operations held in the APS campus. Photo by Yul Araya

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Ateneo community shows support for the barristers in 2013 Salubong

Victims or Victors? We Will Rise Again—Stronger and Better

#SomethingNewL.E.S. Bagels

Classifying crowdsourcing under labor law

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Ateneo community joins Yolanda relief efforts

Organized by the Ateneo Disaster Response and Management team (Ateneo DReaM Team), the relief efforts was able to produce more than 82,000 relief bags for those affected by the typhoon. The University became a satellite unit for relief operations of the Department of Social

Welfare and Development (DSWD). The Ateneo Law School and Graduate

School of Business, likewise, carried out relief operations by serving as a drop-off point for goods, clothes, and other necessities, which were then delivered to the Loyola campus. P

ALS remains Asia Cup champion

The Asia Cup is an annual moot court competition sponsored by the Ministry of Foreign Affairs of Japan. This year’s problem dealt with the human rights implications of the abduction, torture, and death of a journalist during the incumbency of a repressive regime.

A total of 20 law schools from eight Asian countries participated in the memorial-writing qualifying rounds, with each country eventually represented by a lone team in the oral rounds conducted in Japan.

Similar to what happened last year, Ateneo faced Singapore Management University in the final round. The other

teams were from Advance Tertiary College (Malaysia), Handong Global University (South Korea), Kyoto University ( Japan), Thammasat University (Thailand), University of Hong Kong (Hong Kong), Universitas Padjadjaran (Indonesia), and Waseda University ( Japan).

The team was supported by Dean Sedfrey Candelaria, Manuel V. Pangilinan, Atty. Jacinto Jimenez, Ateneo Law Alumni Association, Villaraza and Angangco, Romulo Mabanta Buenaventura Sayoc & Delos Angeles, Gabionza De Santos & Partners, and Posadas Law Firm. P

Tribunal Constitucional de España Judge visits ALS

Constitucional de España (Constitutional Court of Spain). As guest lecturer, she discussed the topic “Doctrinal and Jurisprudential Developments in Spanish Family Law and Succession.”

Magistrada Roca Trias touched on topics that are considered to be of interest in Spain, such as the passage and implementation of a no-fault divorce law, as well as its impacts on alimony, child support, child custody, and succession.

Reactions from esteemed members of the legal community followed the Magistrada’s lecture. Insights were provided by retired Supreme Court (SC) Justice Jose C. Vitug, former Court of Appeals Justice Ricardo C. Puno, Sr., and University of the Philippines College of Law Dean Danilo L. Concepcion. Other reactors were Dean Augusto K. Aligada, Jr., Chairman of the Civil Law Department of the University of Sto. Tomas, Prof. Ruben F. Balane of the ALS, and Fr. Ranhilio C. Aquino, Dean of the San Beda Graduate School of Law.

ALS Dean Sedfrey Candelaria served as Master of Ceremonies. Spanish Ambassador H.E. Jorge Domecq, retired SC Justice and LEB Chairperson Hilarion

L. Aquino, Palawan State University Dean Perry L. Pe, and PALS President and Pamanstasan ng Lungsod ng Manila College of Law Dean Ernesto P. Maceda, Jr. gave welcome messages and introductory speeches for the Magistrada. Retired SC Chief Justice Reynato S. Puno also gave an overview on the Philippine-Spanish historical ties and engaged the crowd in a brief discussion on the influence of Spanish law on the Philippine legal system.

The Tribunal Constitucional de España is the highest judicial body authorized to determine the constitutionality of the statutes and acts of the Spanish Government. Before the Constitutional Court, Magistrada Roca Trias was the fourth woman to be appointed Judge of the Spanish Supreme Court, the highest court which determines all other judicial matters. After being appointed by Royal decree in 2012, Magistrada Roca Trias now sits as one of the two women judges in the Constitutional Court. She was also the first Professor of Civil Law in Spain and the first woman admitted to the Royal Academy of Jurisprudence and Legislation. P

ATENEO de Manila University (ADMU) Vice President for Administration Fr. Nemesio Que issued a total ban on smoking policy on all Ateneo properties (both owned and operated) and its perimeters effective 15 November 2013.

According to the memorandum of Fr. Que, the Vice President for Planning and Administration issued a “No Smoking” policy in the University in 2009 in compliance with Republic Act No. 9221, otherwise known as the Tobacco Regulation Act of 2003. Under the law, smoking is prohibited in “centers of youth activity such as playschools, elementary schools, high schools, colleges and universities.”

Despite such policy however, the Ateneo Law School (ALS) has allowed

ADMU VP iSSUES ToTAL bAn on SMoking PoLiCY

the use of designated areas, also known as smokers’ pocket gardens or “smockets,” where people can smoke when in the vicinity of the Ateneo Professional School (APS) campus.

The ALS administration sought to implement the policy of total ban on smoking in order to further the Ateneo’s commitment to provide a healthy and sustainable learning and working environment.

The ban prohibits all students, faculty, personnel, as well as visitors, suppliers, contractors, and couriers, from smoking in all ADMU properties. These include the Loyola Heights campus, the APS in Rockwell and Salcedo in Makati, the Ateneo School of Medicine and Public Health Building in Pasig, and all satellite campuses. P

By Erlaine Vanessa D. Lumanog

THOUSANDS of barristers rejoiced the end of the Bar examinations on the last Sunday of October 2013. As they stepped out of the gates of the University of Santo Tomas in Manila, friends and families cheered loudly and showed overwhelming support for the barristers, who now can finally take a well-deserved rest after spending months studying for the Bar examinations.

This year’s Salubong had to undergo minor adjustments because of the liquor ban imposed by the government in anticipation of the barangay elections. The restriction, however, did not stop the student-organizers from devising alternatives to keep the event fun and enjoyable for everyone.

As the barristers’ bus arrived at the Sofitel Philippine Plaza basketball court, 800 water balloons were thrown from all directions. The 2013 Bar Operations

Ateneo community shows support for the barristers in 2013 Salubong

(BarOps) heads and volunteers, law school professors, friends, and families of the barristers once again greeted them, as Ateneo’s Blue Babble Battalion band played the familiar Ateneo cheers loudly. The foam machine set a pleasant backdrop as the volunteers continued to splash the barristers with water and other beverages.

Amidst all the fun and excitement, everyone paused for a few minutes to sing the Song for Mary, led by Third Year Batch Representative Armand Dulay. The barristers and their families were then invited over to the hotel function room for dinner.

Through the combined efforts of the faculty, alumni, and the Ateneo Law School BarOps volunteers, the 2013 Salubong had a good turn out, effectively showing the tremendous support of the Ateneo community for the barristers. P

Photo by Denise Sales

Photo by Yul Araya

Photo by Yul Araya

By Alexis Ann V. Aquino

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N E W S

The ALS team celebrates their win with coach Atty. Macaraeg.

‘No smoking’ signs are placed around the APS campus.

Barristers were showered with foam as they arrived at the Sofitel basketball court for the 2013 Salubong.

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IN COMMEMORATION of the Human Rights Week of 2013, the Ateneo Human Rights Center (AHRC), in cooperation with the International Human Rights (IHR) 2, Gender and the Law, and International Consumer Protection (ICP) elective classes, led the five-day long event from 9 to 13 December 2013 entitled, “Is this the new normal?: Perspectives on Climate Change, Disaster Risk Reduction and Management and Human Rights.”

The AHRC celebrates Human Rights Week annually in order to promote human rights while highlighting a specific topic relevant in society. In collaboration with the ICP class and in line with the International HIV Awareness month, AHRC prepared an exhibit called “Act Aware: A Campaign Against the Spread of HIV-AIDS.” The week-long exhibit aimed to promote awareness towards HIV-AIDS and expose its current status in the country.

AHRC CELEbRATES 2013 HUMAn RigHTS WEEkBy Cara Mariel S. Maglaya

Photo by Yul Araya

ASIL Reaches Semis at IHL MootBy Erlaine Vanessa D. Lumanog

MEMBERS of the Ateneo Society of In-ternational Law (ASIL), as official representa-tives of the Ateneo Law School, made it to the semi-final rounds of the Philippine Red Cross’s 2013 National Moot Court Compe-tition on International Humanitarian Law (IHL), held last 18 to 22 November 2013 at the University of the Philippines College of Law in Quezon City.

According to ASIL team captain Jose Her-minio Taylo (3A), although the team failed to advance to the finals, they were able to take home the awards for Best Prosecution Memo-rial and Best Defense Memorial. In addition to

the awards, the mooters placed second in the Role Play Challenge.

Other members of the team included Charlemagne Chavez (3A) and Raymond Jo-seph Mercado (2A), both as oralists, and Yul Araya (3A) as team administrator.

The 2013 edition of the competition is the biggest edition thus far, with teams from fifteen different law schools participating. Ul-timately, the team from San Beda College of Law emerged victorious in the final round of the competition, held at the en banc session hall of the Supreme Court. P

Photo by Yul Araya

N E W S

This year, the AHRC also focused its attention on arguably the most talked about issue in the past year, Mother Earth’s changing climate and her undeniable threats to humanity. Addressing the theme on climate change and human rights, the Human Rights Week was opened by Atty. Ray Paolo Santiago, Executive Director of AHRC. This was followed by the formal opening for public viewing of the Exhibit Tour in the ground floor of the Ateneo Professional Schools.

The rest of the events lined up for the week were dedicated to climate change and its effects on both the international and local communities. The first of these events was a forum entitled: “Mainstreaming Human Rights in DRMM through the Local Government Units.” The first half of the forum introduced the National Disaster Risk Reduction and Management Council (NDRRMC) and its goal as a body sworn to improve and manage disaster control in the Philippines. With the help of the IHR 2 class, a lecture based on research accomplished by its students was given by three members namely, Felicissimo Agas III (3B), Bernard Tumaru (3D), and Marlon Tronqued (3D). The lecture focused on the policies, procedures, and possible improvements that may be done by the Council. For the second half of the forum, Atty. Arvin Jo of the Ateneo School of Government was presented to talk about the Policies and Implementation of DRMM in Local Governments from a Civil Society

Perspective.Another highlight of the week-long

celebration was the screening of the true-to-life documentary Isang Litrong Liwanag. The film tells the story of the Solar Bottle Project led by MyShelter Foundation and its volunteers. It shows how MyProject became the first grassroots green lighting program in the world as they give solar light to families both in the Philippines and in other countries.

In exploring the main theme of this year’s Human Rights Week, the Forum on Climate Justice was set as the culminating event. The first speaker of the event was Mr. Gerry Arances, the National Coordinator of the Philippine Movement for Climate Change, who gave a local perspective on climate change by giving a run through of all the recent natural disasters experienced by the Philippines and their immediate effects on the citizens. To take on the global angle, the second speaker, Mr. Yeb Sano, a member of the Commission on Climate Change and the Philippines’ representative to the Warsaw Climate Change Summit, was presented.

The celebration of the Human Rights Week has been an annual tradition in the Ateneo Law School. This week of events brings together students, faculty, and members of different sectors of the government to examine the current issues of society and remind the people of their responsibilities to both the environment and the community. P

TMAP And ATeneo PuRSue PARTneRSHIP, PRoMoTe

TAx PRAcTIce

ENCOURAGING students of the Ateneo Law School (ALS) to consider future tax careers, the Tax Management Association of the Philippines, Inc. (TMAP), led by its president Atty. Eu-ney Mata-Perez, dispelled anxieties in the practice through its symposium “Pursu-ing Taxation as a Field of Law Practice” held last 12 September 2013 at Justitia Hall of the Ateneo Professional Schools.

Atty. Maria Criselda Guhit (PLDT), Atty. Maria Lourdes Lim (Isla Lipana & Co.), Atty. James Roldan (Bureau of In-ternal Revenue), and Atty. Carlos Ban-iqued (Baniqued & Baniqued) took turns at the podium and spoke about their experiences as tax lawyers for a private corporation, auditing firm, government institution, and specialized tax firm re-spectively.

Admitting the financial and political challenges of his position in the govern-ment (especially amidst the pork barrel controversy), Roldan said, “Why would someone join the government as a tax lawyer? You [not only] gain a network of friends... [but also get] to be part of the

solution.”Baniqued, for his part, said that he hat-

ed tax while he was in law school. “I think it was my lowest grade in the Bar exam. My love was litigation,” he confessed be-fore regaling the audience of how his be-ing “in the right place at the right time” led to his now successful tax career.

Joined by other TMAP officials and representatives of donor institutions Pu-nongbayan & Araullo and Isla Lipana & Co., Atty. Mata-Perez closed the ceremo-ny by officially turning over tax books to ALS Dean Sedfrey Candelaria. TMAP had signed a Memorandum of Agreement with the ALS on 26 June 2013 to “improve the quality of tax education, develop and update [the latter’s] tax library [through selection and donation of tax books and materials], and establish an institutional presence [in the school].”

In her closing address, Rina Manuel, the Vice President for External Affairs of Smart Communications said that through the symposium, she hoped that the coun-try will have “more lawyers who are not afraid of tax.” P

By Iris M. PozonTHE ENVIRONMENTAL Law Society

of the Ateneo (ELSA) sponsored Dean Antonio “Tony” La Viña’s book launch last 14 August 2013 in the fourth floor lobby of the Ateneo Professional Schools. The launch was attended by ELSA members, alumni, and some members of the Ateneo Law School (ALS) faculty.

Dean La Viña’s work is a two-part publication on environmental law and policy. The first volume is entitled “National Laws and Policies” and centers on the domestic setting. It discusses the various aspects of the Philippine environment and looks into a range of factors affecting it, such as fisheries and marine resources, mineral resource extraction, waste management and sanitation, and climate change and disaster risk reduction. The second volume, on the other hand, is entitled “International Law and Rules of

ELSA hosts book launch for Dean La ViñaBy Ma. Mikhaella Rosario Z. Sollano

Procedure” and deals with international law and pronouncements and their domestic application. This volume is dedicated to the discussion of international environmental instruments and how these are incorporated in local law and jurisprudence.

The book launch started with ALS Dean Sedfrey Candelaria welcoming the guests and praising Dean La Viña for his hard work and valuable contributions to the field of environmental law. Later, former members of ELSA, who contributed to the creation of the book, shared their experiences while working with Dean Tony. To cap off the event, Dean La Viña addressed the guests with a few anecdotes and expressed his deepest gratitude for acknowledging his latest achievement. Dean La Viña also signed copies of the books at the end of the event. P

Photo by Iris PozonTMAP officials turn over books to Ateneo Law School Dean Sedfrey Candelaria.

Mr. Gerry Arances of the Philippine Movement for Climate Change discuss ‘local’ climate change.

ASIL team members Charlemagne Chavez and Raymond Mercado prepare for the competition.

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Sta. Maria’s expertise and contribution to the network. On the other hand, the au-thor’s batchmates from the Law School also gave anecdotes describing how he was in his early years in ALS. Publisher Martinez also imparted a few words for him.

Atty. Sta. Maria, in his speech, ex-plained that his work is a compilation of his opinions and commentaries of news and current events published in InterAk-syon.com, where he is currently a contrib-utor. He also gave credit to his wife Atty. Amparita Sta. Maria, also an ALS profes-sor, for her contribution to his work. A short interview was conducted thereafter, which covered topics discussed in his ra-dio show in Radyo5.

To cap off the event, Atty. Mel signed copies of his books while guests were served with refreshments and cocktails. P

AROUND 150 guests from the law school community, legal profession, and notable personalities from TV5 flocked the Bernas Center of the Ateneo Profes-sional Schools to attend the official launch of Atty. Melencio “Mel” Sta. Maria’s book entitled “Read My Mind” last 14 Septem-ber 2013. The event was graced by the presence of PLDT and TV5 Chairman Manuel V. Pangilinan, TV5 news anchor Mike Salazar, publisher Ronnie Martinez, and Ateneo Law School (ALS) Dean Sed-frey Candelaria. Other guests included Atty. Sta. Maria’s colleagues, law school batchmates, ALS students, family, and friends. The TV5 crew covered the book launch, later shown in its official website.

The program was hosted by radio an-chor Archie Zapanta. Speeches were given in honor of Atty. Sta. Maria. Mr. Pangili-nan highlighted his appreciation for Atty.

Atty. Mel launches new book “Read My Mind”

By Kathlyn Nadia D. Baldonado

1B triumphs at the 2013 Sta. Maria Persons and Family Relations Moot

By Ma. Mikhaella Rosario Z. SollanoTHE STA. MARIA Persons and Fam-

ily Relations Moot, formerly known as the Persons Moot and more popularly known as the “Persons Cup,” was held last 31 August 2013 at the Ateneo Professional Schools auditorium. The event began at 9AM and ended at 5PM wherein the vari-ous freshman blocks under the tutelage of Attys. Melencio “Mel” and Amparita “Ampy” Sta. Maria took part. Blocks 1A, 1B, 1C, and 1F went head to head in the moot court competition with the assis-tance of volunteer-coaches from the Ate-neo Society of International Law (ASIL). The event was organized by Blocks 4B and 4D, both of which are under Atty. Mel Sta. Maria’s Civil Law Review classes.

This year’s competition centered on the issue of the necessity of the Anti-Cor-

poral Punishment Act of 2013 in light of the existing provisions in the Family Code regarding parental authority.

As recounted by Angela Abala (4B), each block was required to submit a me-morial and participate in oral rounds—two preliminary rounds and one final round. Each class had the liberty to decide who among their blockmates would repre-sent them in the oral rounds. The rounds were judged by esteemed members of the faculty and Ateneo alumni.

At the end of the competition, the rep-resentatives of block 1B, Pearl Simbulan, Michael Villanueva, and Bea Gutierrez, as oralists for the respondent, emerged vic-torious, and Zarah Rovero (1A) bagged the Best Oralist award. P

STARTING off the season of giving for the Ateneo Professional Schools (APS) administration was this academic year’s Staff Christmas Party held last 20 December 2013 at the APS ground floor atrium. With approximately 150 confirmed guests which included the staff and some of their children, the party was a joint effort of the Ateneo Law School (ALS) Student Council (SC) and the Ateneo Graduate School of Business (AGSB) with the theme “The Voice,” geared towards showcasing the talents of the participants. The planning up to execution of the party was overseen by ALS SC External Vice President (EVP) Bernadette Eugenio (4A), while Kathleen Sherry Lee (4A) took the reigns as project head. Funding and sponsorships for the event were provided by the ALS SC, AGSB, individual donations, and block solicitations.

Hosted by Second Year Batch Representative Cyndy dela Cruz and Third Year Batch Representative Armand Dulay, the program was conducted in a talent show format where the staff members presented performances and three winners were selected. The program’s grand champion was Mr. Rodelio Ernacio of the Ateneo Human Rights Center. Aside from the staff members, students and their organizations such as Forte and

ALS, AGSB joIn foRceS foR APS STAff cHRISTMAS PARTY

By Rochezka Bianca R. BeltranSalsa also shared their talents at the party, along with the kids from the Children’s Joy Foundation. The attendees were thrilled and captivated by the surprise duet performance of ALS Dean Sedfrey Candelaria and AGSB Dean Alberto Buenviaje.

The participants played games like “Shake up the happiness” and “Talong race.” The participants also joined a raffle contest with prizes that included Php15,000 worth of gift certificates from Skin Rejuve, products from Asian Secrets, jackets and shirts from the ALS SC, and more. The grand prize was a round trip Air Asia ticket to anywhere in the Philippines.

What separated this year’s party from its predecessors was the fact that it was a joint project between the ALS SC and the AGSB. Through the hard work of the volunteers and everyone who participated in the event, the APS community came together to share the gift of joy and cheer with the unsung heroes who make studying day in and day out much bearable in the campus many already consider their second home. “The party wouldn’t be a success without the hard work of the core volunteers. They were enthusiastic and dependable,” remarked ALS SC EVP Eugenio. P

Photo courtesy of Michael Victoriano

N E W S

MARKING not only the start of the semestral break but also the highly anticipated Bar month, October 2013 saw the Ateneo Law School (ALS) community wishing Atenean barristers luck, and providing much-needed moral and academic support.

The ALS Student Council and the Central Bar Operations (BarOps) team worked closely to prepare the bar send-offs and actual bar operations. A holy Mass was held especially for the barristers and their families, who both prayed for the success of the Bar exams. The barristers and their families were also invited to a special send-off dinner, which was likewise attended by faculty members and student supporters. Blue balloons and a loud cheer timed to the beat of the Blue Babble Battalion’s drums greeted barristers in the Ateneo Professional Schools building as they walked towards their ride to Sofitel Hotel.

The four Bar weekends would not have been flawlessly executed without the hard work, initiative, and cooperation of the members of the Central BarOps team and student volunteers. The three committees of the Central BarOps,

namely, Academics, Administration, and Hotel had their fair share of ups and downs during the preparations.

The Academics Committee, in particular, was fortunate to have worked with a number of professors and alumni who selflessly volunteered in Bar preparations and gave useful tips. Problems such as slow internet connection and undermanned team did not deter the committee from reaching its deadlines and delivering helpful tips to the barristers. The Hotel Operations committee also received praises for impeccable service during the four weekends at Sofitel. The Administration Committee, which was in-charge of overseeing the entire operations, admitted that taking charge over every detail of the operations was not an easy task, but thanked all student volunteers who went out of their way, especially during their vacation, to serve their fellow Ateneans.

Indeed, the Bar Operations 2013 was a success and an indication that the law school spirit is kept alive by unity and love for our alma mater. P

BAR oPeRATIonS 2013 A SucceSS

By Cyndy P. Dela Cruz

THE JUSTITIA Hall of the Ateneo Professional Schools was graced by the presence of Democracy Watch’s entire team led by Professor Victor Manhit of the De La Salle University together with Ms. Peachy Tan of #ScrapPork, Dean Raul Pangalangan of the University of the Philippines College of Law and the Philippine Daily Inquirer, Mr. Vincent Lazatin of the Transparency and Accountability Network, Ms. Inday Varona of Change.org, and Senator Allan Peter Cayetano last 17 December 2013 for a timely talk on the aftermath of the Supreme Court’s declaration of the unconstitutionality of the Priority Development Assistance Fund (PDAF), which aimed to educate law students on the gravity of corruption in the country.

Professor Manhit opened the talk with a brief introduction about Democracy Watch, an organization that aims for an increased popular participation to curb the possibility of corruption. Mr. Lazatin engaged the crowd by speaking about the aftermath of PDAF’s unconstitutionality, pondering on the possible change in Philippine politics such as political dynasties, and a change in the dynamics between the executive and the legislative branches. Mr. Lazatin ended his speech by reminding law students that money should not be the only thing that will move a leader to get things done.

Afterwards, Ms. Tan lectured on the nature of pork barrel and how such system promotes patronage politics and inefficiency in the use of public funds. She said that as the pork barrel system is subject to the discretionary use of politicians, its being scrapped permanently is justified with more reason. The talk proceeded with Ms. Varona, who spoke on the effects of social media in promoting change. She also introduced Change.org, an online site that engages netizens to file their petitions

democracy Watch visits ALS for PdAf aftermath talk

By Cyndy P. dela Cruz

for change that will be published online to gain support. Ms. Varona recollected the popular Million People March that gained roughly 85,000 supporters and counting.

The talk was followed by a speech from Dean Pangalangan which focused on the legal issues surrounding the PDAF, the constitutional mandate against conflict of interest for members of the Senate and the House of Representatives, and presented scenarios surrounding the striking down of the PDAF and comparing it with what would happen if it were upheld. Dean Pangalangan ultimately proposed that the solution is to strike down all discretionary funds of the government.

On the other hand, Senator Allan Peter Cayetano sees the declaration of the unconstitutionality of the PDAF as not the end but a means to an end. He said that more important than engaging people to be more wary of not only saying what they are against is saying and standing up for what they are born and made. As a member of the Senate, he expressed that he hopes for the passing of bills that cater to the protection of people who will help curtail corruption, such as the Freedom of Information Bill and the Whistleblower’s Act. He ended his speech with an encouragement for law students, as future leaders, to be proactive in not only mitigating but in completely eradicating corruption in the country.

After the program proper, the floor was opened for questions and reactions from the students. The event ended with Dean Sedfrey Candelaria expressing his gratitude to the speakers as well as the students who took time to listen and be informed about the issue.

The program was hosted by Second Year Batch Representative Cyndy dela Cruz and Philip Recentes (2C). Block 2C was likewise tasked by Atty. Sarah Arriola to assist in organizing the event. P

Persons Cup oralists pose with their gold cups and coaches.

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Editorial Board

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Patricia Janelli A. DavideEditor in ChiefIris M. PozonAssociate Editor

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E D I T O R I A L

BEFORE the year 2013 even started, the extremely superstitious either flocked the steps of the Temple of Kukulkan, Mexico or drew their loved ones in a final, desperate embrace to welcome what the Mayans predicted would be the end of the world. But the quiet panic that festooned December dissipated with the first dawn of 2013. The New Year, as always and in spite of its supposedly unlucky last digits, signalled new hope—as it should.

2013 promised transformation of our country’s political and economic landscapes. And for the early quarter of the year, the winds of change—steered by the Aquino administration—seemed to accomplish just that. The economy was booming and international ratings institutions were giving us remarkable investment grades left and right. The elections pushed through without a considerable hitch. The Bangsamoro peace pact was inked. Filipinos proudly made the headlines with successive beauty title wins and athletic championship belts and gold. Alleged corrupt politicians were named, shamed, and prosecuted. And the pork barrel was finally declared unconstitutional.

The glass half-full portrayed an impressive year, but the glass half-empty revealed that a greater part of it was actually hounded with more bad news than good. Simply by jumping off the main points of the year’s timeline, we are presented with the sheer number and the incomprehensible magnitude of political, security, and disaster nightmares: the Atimonan fiasco, the Sabah conflict, the Sulpicio ferry collision, the growing West Philippine Sea tension, the Taiwanese diplomatic row, the PDAF and Malampaya plunder, the sex-for-flight scandal, the Zamboanga siege, the massive Bohol-Cebu earthquake, the historic Yolanda devastation, the blatant mall robberies, the Skyway incident, and the recent NAIA-3 shooting.

2013 proved to be quite the roller coaster ride, albeit a trip that appeared to loop forever in its lowest points. It was as if God, destiny or what-have-you just wasn’t dealing us with the right cards. But truth be told, our mistakes as men and as Filipinos sealed our own fate because we foolishly invited most of these to our door. Greed, vanity, incomprehensible lack of decency and good sense dominated our so-called tragedies because we allowed ‘selfie-sh’ mentality to get in our way. This is manifested in our sheer inability to move on from our pride or politics, and tendency to put our needs on top of those of our brethren. These not only show how we failed, but also how this administration and this society could have done more and should do more. Fortunately, today’s generation of Filipinos is slowly waking up to the ills of “epal” leadership, and boldly making its voice heard. Let’s hope it’s not all talk and ningas kugon because, as the saying goes, if we want change, we need to make change. P

20 “13”

Illustration by Pierre Salva

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6

LawdoubilityBy Patricia Janelli A. Davide

MinesweeperBy Iris M. Pozon

O P I N I O N

I’VE NEVER had lunch with a dying woman before. But on one Saturday of December, I drove around, sped, beat the red light repeatedly, and searched endlessly for a bouquet of happy flowers for a person I’ve never quite fully conversed with.

She was one of those people in one of those communities, where everyone seemed to know each other and yet, not know each other. I only ever knew her as the church lady who was careful not to commit mistakes in enunciating mass verses, and yet head-strong, feisty, and critical enough of small town politics. She’s one of my parents’ friends, and I have grown up seeing her around. We were never close, but she was always just there. Around. A thought I now find surprisingly painful and terrible in its simplicity.

Aside from the quintessential Tuesdays with Morrie that first introduced me to the concept of a living person’s funeral, Samantha Sotto’s Before Ever After, one of the few non-law books I’ve managed to read over the past couple of years pointed this out to me: the slow yet poetically abrupt forgetting, which comes with the ironies and many splendored stages of death.

In her book, Sotto wrote, “[they] may be long gone, but because they lived, regardless of how small their lives may have been, I believe they are worth remembering, even if only by strangers.” To which one of her characters replied, “I can only hope that someone returns the favor when my time to be forgotten comes.” This reminded me of the oft cited curse of the frail human memory—that people will gradually forget the details of a person (even the persons they love most), leaving him or her as nothing but a vague essence.

The past year and that lunch hour highlighted all these for me. I learned

man’s tremendous propensity to forget. And it’s not even about moving on. I don’t think we move on really—or at least move on that fast. We tuck away memories—even important ones—in these ordinary, little boxes and put them in the far corner for dusts and cobwebs of biology to gather on. It’s not just death. It’s life, both in its kaleidoscopic details and totality. We eventually forget about that woman we used to attend church with, or that random brat that used to hurl insults at our cutesy kindergarten backpack. We forget about that food we used to always eat at that place we used to adore. We forget birthdays and anniversaries. We forget about the flood or the quake that devastated our homes. We forget about the survivors that continue to live on just daily sustenance. We forget the kind of evil that corrupts our leaders. We forget about those men and women who stole all our tax monies. We continually forget about the airport installations that could save lives. We forget that certain persons lived, and that certain things happened. We even forget that we used to hate forgetting: the slant of an eye, the crinkle of a nose, the pomade scent, the fluttery feeling.

There is nothing really wrong with forgetting. It isn’t actually a measure of anything. It’s just that I hate being among those who forget, just as much as I hate the idea of being forgotten in the long passage of time, and not even registering as a blip in history—or in Augustus Water’s words, leaving behind “a mark...a legacy...a scar...[or] toxic piss.”

Perhaps it’s my existential flaw to believe that we all need something to pin us in an imaginary timeline or in someone’s failing memory. But for what it’s worth, I would like to think (as much as the next person) that we are able to and can surpass this terrible bout of forgetfulness, and know that someone will remember and, in this case, did remember. P

Awful case of forgetting

By Atty. Melencio Sta. Maria* (via InterAksyon.com)

Not so fast! In realigning PDAF, Senators are violating the Constitution

AS 2013 WAS drawing to a close, the Supreme Court declared the controversial Priority Development Assistance Fund (PDAF) unconstitutional.

As we prepared for 2014, therefore, the public was confused - if not in fact scandalized - by news that certain senators had nonetheless gone ahead and realigned their respective Php200-million PDAF in 2014 budget.

The Senators, with support from Malacañang, said this was all legal. They argue that the Supreme Court, in declaring the PDAF unconstitutional, only prohibited the post-enactment participation of Congress in the PDAF’s disposition, which is the sole duty of the Executive Department after a law has been passed. Therefore, they said, the “realignment” of the amount given to each senator may be done, provided that it is done before the signing into law of the 2014 budget by the President. Because the legislature has the “power of the purse,” the argument goes, each senator can propose, amend, alter and/or “realign” public money to any item before the national budget becomes law.

Logical? Yes. But is it legal? No.

The senators seem to believe that each of them is empowered to decide on the disposition of each of their respective Php200 million PDAF.

InterAksyon.com reports that Senator Escudero affirmed this by saying in his summary: “Please note that each senator decided on the usage of the Php200M funding, as originally proposed in the budget.” Hence, nine senators “opted to use their 2014 PDAF allocations” by directing that it be given to particular agencies or local governments of their choice. Fifteen senators just decided to delete their PDAF.

The senators committed a serious violation of the Constitution. Section 24, Article 6 of the Constitution provides that in relation to any appropriation initiated by the House of Representatives, “the Senate may propose or concur with amendments.” The wording of the Constitution leaves no doubt that the power to propose and to concur must be done by the “Senate” and not by any particular senator. The act must be institutional and not individual. The spirit of the law plainly requires a collegial undertaking.

The Supreme Court has enunciated that “the plain, clear and unambiguous

language of the Constitution should be construed in that sense, and should not be given a construction that changes such meaning.” (Soriano et al v. Lista et al, G.R. No. 153881)

To change the rule from the proposals and concurrence of the Senate to the determination and choice of each senator is an unauthorized and illegal application of the Constitution. The procedure followed by the present Senate gave absolute power to an individual senator to determine the disposition of public money constituting his or her PDAF. The concentration of power in one public official is always anathema to a democracy. It is repugnant to the Constitution.

Had the Constitution been strictly followed, the inevitable result would have been the deletion of the PDAF allocated to all the senators considering that 15 out of the 24 senators decided for deletion. Simply, the Senate as a body would have obliterated the senatorial PDAF-provisions altogether. The Php200 million earmarked for each senator would have been erased. Consequently, there would have been more projects that could have been deliberated by Congress as a body as compared to allocations solely determined by nine senators. The spirit of the Supreme Court’s declaration of the PDAF as unconstitutional would have been better served.

The public deserves answers to these questions:

Why were nine senators individually given such special privilege of deciding

where the amounts “allocated” to each of them would go? Where did they get the legal authority to arrogate unto themselves the right to direct the disposition of public money on the sole basis of their own individual and personal determinations?

More appalling, why did the 15 other senators allow this, despite the fact that nothing in the Constitution authorizes binding individual choices? Is this not an abdication of their solemn duty as the Senate under the fundamental law?

Are all these 24 senators simply playing blind to the constitutional requirement?

Beyond the more fundamental constitutional issues, is it not a matter of simple delicadeza and hiya that senators, as a result of the Supreme Court ruling of the PDAF’s obnoxiousness, should completely stop the correspondingly obnoxious practice of claiming and earmarking for themselves a portion of the proposed budget? None of them has a vested right to taxpayers’ money.

Congress may have the “power of the purse,” but that power must not be used to promote their self-interest and their corrupt sense of entitlement. Otherwise, it is nothing but an abusive exercise of power. P

*Atty. Mel Sta. Maria is the newly-appointed Dean of the FEU Institute of Law. He teaches civil law at the Ateneo Law School and co-hosts “Relasyon” on TV5 with Luchi Cruz-Valdez.

BACK IN kindergarten, I used to be ashamed of the fact that I was picked up by our manong and we’d ride a jeepney then walk a couple more kilometers home while the rest of my schoolmates had cars lined up outside the campus waiting for them.

That was circa 1996. Fast-forward to more than a decade later to a city in France called Nantes where I spent a semester living an almost-local lifestyle, always trying to catch up. It was then that my childhood shame metamorphosed into grown-up pride in four months because there, everyone walked...and walked fast!

Our school was approximately a 40-minute commute – two bus rides or one bus then two tram rides – away from the area we lived in. Fortunately (or unfortunately for most of us), classes began at 9AM so that if we missed our eight-something bus by even just a minute, we knew we were bound to be late. There was another option, though: to walk to the next bus stop which was almost fifteen minutes away (five minutes in “French walk”) from our place. Of course the first option was always preferred. And I recall how the most hurtful part was when you’re running, still hoping to catch a ride, only to see the bus doors close after the last passenger who’d made it on time had gone up the platform. It was then that I got my first taste of French punctuality. Trips were ever so precisely scheduled down to the last minute that it was not uncommon to have a 9:42 AM or 5:17 PM bus ride.

As with other European cities, Nantes’s roads were smaller, cobble-stoned, even, with fewer, smaller cars as well. Traffic jams were practically unheard of. Bikers with baguettes in their backpacks became a fairly familiar sight.

Clean, safe, magnificently picturesque. No wonder Nantes holds such distinguished titles as Time Magazine’s 2004 most livable city in Europe and the European Union’s European Green Capital of 2013.

Less in wheels, more in roadsAs if taking a cue from former President

Ramon Magsaysay’s timeless slogan, “Those who have less in life should have more in law,” the Share the Roads Movement of

the Philippines brings it a step further, advocating an “equitable and sustainable transport-sharing system” for the country. The philosophy is simple and is rooted in social and environmental justice: “Why should 98% of Filipinos have to pay for the roads when only 2% of the population who own cars can use them? The people have a right to the roads. We shouldn’t come second to cars and the pollution they create.”

If you’ve read the news or logged on to Facebook lately, you might have come across a report that the Metropolitan Manila Development Authority (MMDA) expects heavier traffic until early 2016 to give way (no pun intended) to the construction of infrastructure projects. As if the traffic congestion situation isn’t already bad. And here lies the problem of constant expansion that only encourages increased use. Thus, Professor Oposa’s quote above holds just as true in road sharing as it does in renewable energy.

“Those who have less in wheels must have more in roads.” It may seem like a revolutionary idea at first glance. But it is plain, common sense – a common sense of justice that many of us are reluctant to take responsibility for.

Shifting gears, reshaping mindsetsIn the Philippines, there is some sort of

unwritten social rule that those with cars are more superior and are to be treated more decently than those without cars. A sense of entitlement (and accessibility) that goes even beyond the road seems to accompany car ownership.

Looking back, it is scary to have such a point of view etched in the mind of someone so young. It is a mindset that to me has to be unlearned. Those daily commutes in Nantes made me appreciate how an efficient system of public transport is capable of instilling discipline. What amazed me more was that the formula was simple: follow the schedule strictly so that people will be forced to go on time lest they be left behind. I came back with an irrepressible desire of seeing the same replicated in the country’s metropolitan areas. I came back still wanting to catch up, but walking faster this time. P

Learn more about the Share the Roads Movement at sharetheroads.net or share your thoughts on social media via the hashtag #sharetheroadsPH.

En route, on foot“The solution is not to expand the source but to

reduce the use.” -Prof. Antonio A. Oposa Jr.

7

#ObiterBy Joseph Giancarlo C. Agdamag

Happy ThoughtsBy Erlaine Vanessa D. Lumanog

O P I N I O N

DURING the aftermath of Supertyphoon Yolanda, social media was abuzz with various accounts of everyone’s harrowing experience of the devastating calamity. A tweet by a certain @melsungit particularly struck me, and I quote: “Please let’s stop romanticizing resiliency already. It’s time to demand LGUs to respond better to disasters. If not now, when?”

Right. We Filipinos have a penchant to romanticize the resiliency of our nation especially in times of great ruin and devastation. At first impression, there seems to be nothing wrong with it. The strong, positive attitude that the survivors had shown in the days following the tragedy has been a testament to the true character of the Filipino people. Even those who have been orphaned, or whose properties were completely ravaged by the typhoon, still managed to smile—evocative of the optimism that tomorrow will be a brighter day. Filipinos are resilient. Filipinos can weather any storm.But really, is resiliency enough?

After Yolanda, we cannot claim to be resilient by merely standing idle, waiting for the next catastrophe to befall upon our battered land. Being resilient is not about placing temporary stopgap measures and neglecting the possibility of the same things happening again on the premise that we could withstand the strongest of storms anyway. We tend to overemphasize this abstract idea so much, to the point that we forget to shift our attention to concretizing real, long-term action.

How can we claim to be resilient when, despite everything that had happened, it still didn’t effect any change in us? Being resilient, in the truest sense of the word, is the exact opposite of what we are made to believe. Ninotchka Rosca puts it best: “We break when the world is just too much, and in the process of breaking, are transformed into something difficult to understand. Or we take full measure of misfortune, wrestle with it and emerge transformed

into something equally terrifying.”

Resiliency is not just about coping; it should be about change. Resiliency is not just about being able to stand up again, stronger than we were during our last fall; it is about collective action in ensuring that what made us tumble before will not break us any further in the future. Filipinos can be genuinely resilient if we breakaway from the seemingly unbreakable mentality we imbibe whenever disaster strikes.

Now how should this be done? My humble opinion dictates that we must address the very source of our vulnerabilities. In a way, it is us who created these problems, made worse by our own actions and omissions. Time and time again, we are hit by natural calamities of different scales and magnitude. But just as they happen, it seems as if we never learn. We still lack the necessary preparedness in combatting these threats. If only more safeguards were put into place, then the loss of lives would have been minimal. Maybe it’s the perfect time to demand accountability from our government.

Admittedly, Yolanda was regarded as the strongest storm to have made landfall, and the wreckage it caused, regardless of any degree of preparation, was bound to happen. I beg to disagree. To the extent that the typhoon was worsened by climate change, we have no one else to blame but ourselves. Maybe it’s the perfect time to demand from everyone to do his or her share in sustainable living. Lest the post-Yolanda aftermath turn into some sort of blame game, let us have the decency in acknowledging our own shortcomings. We, Filipinos, are not so resilient after all. A part of what happened was our very own doing.

We break. We fall. We don’t surrender. But in rising up again, there must be an implied recognition of our vulnerability. Resiliency is not measured by how we responded, but by how it changed us. P

Romanticizing resiliencyRESOLUTIONS are often the first list on people’s minds (or planners) on the first day of January. Sleep early. Lose weight. Be punctual. No backlogs. The enumeration would most likely contain matters about ourselves and aspects about our lives that we desire to improve, change, or even throw out altogether. Sometimes, our lists also include material objects that we wish to possess for that year—a PS4, the latest iPhone in the market, or that designer bag you can’t stop thinking about. Either way, we start with the musing of things, experiences, or attributes we want to obtain throughout the year.

Personally, I believe that setting goals for ourselves is always essential for personal growth. Renowned Greek philosopher Aristotle declared, “Begin with the end in mind.” However, the flipside of revolving our thoughts and actions to those that we covet is the eventual tendency to concentrate on their absence in our lives. In effect, we become overcritical of ourselves (“If only I could lose 15 more pounds, I’ll be happier”) and become more aware of the “meagerness” of our current predicament (“I live so far from school, I wish I had a condo at Rockwell”). The dissatisfaction we allow ourselves to feel and put emphasis on would only take us one step back, instead of helping us move forward. So rather than being appreciative of the clean bill of health we currently enjoy, we harp on the great difference our bodies have against the male and female models plastered on the billboards of EDSA. We stress on the hassle of travelling to school because of the distance, without even noticing the beautiful house keeping us safe—or the fact that we have a place to call home. Lest we fall into this trap of discontent,

Begin with the attitude of gratitude a balance should be created between our aspirations and the feeling of appreciation towards what we have.

Here’s a proposal: instead of just taking note of our objectives for the year, we should also keep a tally of our blessings. Start out with those that we were imparted with in 2013. Then, on a daily basis, keep track of what we are thankful for.

Some of us may be familiar with the original 365 Grateful Project. For those who aren’t, its story started with a girl who was battling depression. Her counselor not only advised her that the secret to a happy life is reflection and gratitude, but also instructed her to write down every night the things she should be thankful for. Instead of writing, the girl opted to buy a polaroid camera and started to document things, events, places, and people that she was grateful for. It started a movement, first on Flickr, then down to other social media platforms—the rest is history. We should follow suit—be it scribbling on a journal, jotting down on our planners, posting daily on Instagram with the hashtag #365gratefulproject or #gratitudeproject, or even just reflecting about these before falling asleep at night.

Whatever medium we use, the important thing is that we become aware not only of the blessings that we experience from day to day, but also those that we only see in hindsight. In doing so, we will face the year with much more vigor, knowing that whatever happens, there is always so much to be thankful for.

Someone wise once said, “It’s not happy people who are thankful, but thankful people who are happy.” P

Oddly EnoughBy Nellaine Annabelle L. Soliman

The Art of Cold Reading 101: Law and body language

LAW IS a social science. It deals with the basic understanding of human behavior. In every case handled, every trial fought, any bureaucratic system dealt with, and any law passed and enforced, lawyers deal with people and their behavior. We have heard time and again that there are some things we can only learn in practice. These are not just technical stuff, like the different motions in the Rules of Court, but also practical things like body language. Yes, body language—the art of cold reading or making inferences by observing and understanding non-verbal behavior.

Body language or “kinesics” is subjective. It is often used to heighten probability guesses on the message conveyed or not knowingly conveyed by a person. An ‘OK’ sign (where the index finger is joined with the thumb while all three other fingers are up) can mean “good” in one place, and be a sexual insult in another. The inference then from body language depends on the setting, circumstances, and culture. But based on experience, sometimes it is not what you say but how you say it that matters.

The premise with body language is that “the body reveals what the subconscious

mind is thinking.” Politicians and lawyers are usually among those who intentionally mask their gestures and expressions to correspond to their projected message. In a study by University of Bristol’s Dr. Harry Witchel, lawyers practice body language as a skill in mediation and negotiations, especially in family dispute resolutions rather than in traditional legal practice.

But in one court proceeding in Makati City Hall, I noticed how kinesics works in traditional practice. The judge asked the accused if he understood the implications of signing an affidavit written in English, despite the latter’s admission that he only reached first grade. The accused scratched his head but replied yes. Unconvinced, the judge asked the accused two more times and sighed when he still got the same response. He then advised the accused’s counsel to instruct his client. The judge here may have observed telltale signs of ignorance from the gestures of the accused.

An article in Lawyers Weekly USA explained how “mirroring” can give lawyers an edge with their cases. According to the author, mirroring, which entails the subtle imitation of the words and gestures of a person, can establish

subconscious bonding among the judge, juror, witness and/or the client. The technique apparently builds rapport, such that witnesses tend to be more relaxed and honest, even to the point of admitting facts they would not have otherwise revealed.

This discussion is also seen in law school environments. It has become an imperative for law students to exude confidence whenever we are called for recitations—even when we haven’t read the assigned lessons. But no matter our “jibber-jabber,” our body language (like excessive hand gestures, lip biting, twitching) still betray us. Some professors actually try to catch us by asking follow-up questions.

In Practice Court classes, we learn that a lawyer needs to be observant enough to spot contradictions not only in the words, but also in the gestures of witnesses and the opposing counsel. As students, we may not be as adept in the art of ‘cold reading,’ but we can sharpen this skill during our stints as students and then in practice. Here are more examples of basic gestures we may encounter, and how we can interpret them according to kinesics experts Allan and Barbara Pease -

(1) Crossed arms denotes cautiousness. To make the other person open up, try ice breakers or give them something to hold or do.

(2) Clenched fists signals frustration, while arm grip may mean that one is simply not buying your statement. If you’re negotiating, try changing tactics.

(3) Ankle lock while standing or sitting down may indicate that one is controlling one’s emotions. The position of the feet can signal whether or not a person is interested in you or the conversation.

The studies cited here should only be seen as a guide though. There is no hard and fast rule in the art of cold reading. Even experts say that body language must be read in the context of the circumstances and setting they are in. The gestures must also be understood not as isolated actions to determine the message as accurate as possible. When gestures are in conflict with each other, “mixed messages” and misunderstanding result. Understanding body language is not all about channeling Sherlock Holmes, but it doesn’t hurt to use the art to broaden one’s knowledge and hone a skill that can be useful in the future. P

8 O P I N I O N

Lush ElegiesBy Rita Odessa A. Villaruel

After the Storm: Nobody talks law

IF I WERE to talk about the aftermath of typhoon Yolanda, I would probably not latch my opinions onto a legal perspective. Inasmuch as it is true that the law always has something to do with just everything under the sun, sometimes it is not the most relevant part of a situation. Sometimes, even people in the field of law do not use the legal framework in assessing certain socio-political or economic events. Law is not always the entity that primarily settles things down and sheds light into a crisis.

I find it interesting that when law students talk about Supertyphoon Yolanda, they sound just like everybody else. Their  tweets  and  Facebook statuses  are no different from, say, a first year college student’s. This is not the case when law students react to other “national issues” that, by the same token, largely circulate in the media and in the Internet. They would usually quote a professor who gave a very interesting take on the subject, or comment using legal terms they have proudly learned in law school. Everyone who follows law students on Twitter or are Facebook friends with them could have hardly missed such comments and quotes during the peak of the Corona impeachment trial, or the local and national elections, to name a few.    Yes, these issues necessarily involved law so the law students definitely had to  not  sound like everybody else. But think of the most random topics and how law students would jokingly relate them to some law principle or terminology.

There was one time when I was talking to a friend of mine who is also a law student from another school about a girl he had asked out on a date. Apparently, it took the girl about two days to reply to his text message. He said they never actually went out. I asked him  “Why?”  and his answer was: “LACHES.” Now that is an easy way to explain his side of the story. There was also this one time I saw a  tweet by a law student that went something like  “Lahat ng sinasabi mo ay Obiter. In other words

walang kwenta.”  It really comes easy to law students to use legal terminologies in the most random things we talk about. It thus would not take a very observant person to notice that comments of law students regarding typhoon Haiyan and its aftermath are no different from those of other Filipinos, regardless of age and educational background. No matter what aspect of the aftermath is being looked at, the comments and opinions are the same.

MEDIA. It is quite hard to form a mental image of the situation in Leyte without the reports coming from the news anchors covering it, both local and foreign. Pictures are not enough; people always want the closest they can get to the “actual scenario.” Journalists and reporters have indeed been helpful in letting the world know what Leyte looks like. However, we also know that accuracy is not exactly the strong point of the local media. There are always exaggerations—not to mention the sentiments being tagged on by media documentations. This is how everybody observes the media—and the way people in the law academe see it is no different from the way the rest of the world does. We are not concerned with the legal aspect of media’s presence in Leyte: We do not talk about the legality of exposing dead bodies on the Internet and neither do we think of the legal consequences of the stealing of goods from destroyed malls and grocery stores. At the back of our minds we do acknowledge the illegality of certain events news reports claim to have transpired; but the gravity of our concern dwells on the bigger picture of chaos. We do not think of legal charges and penalties. We see everything in black and white; everything that is happening out there could only either help alleviate the people’s suffering, or push their condition all the more into the pit of complete destruction. There is nothing in between progress and downfall.

LOCAL RELIEF OPERATIONS.Companies, individuals, establishments,

and all sorts of organizations have been handing out their shares in local and nationwide relief efforts. We do not care about the legal aspect of those operations and transactions. We only care about the execution. Are the goods being brought to the wrecked areas? Are people actually getting help? We do not care about proper procedures or any requirements of the legal sort. We only care about whether supplies are being received or not. We do not care how it is done; at the end of the day, it all boils down to the question of whether the rehabilitation actions are being executed well and enough.

INTERNATIONAL AID. Several countries—US, Russia, Norway, UK, and France, to name a few, have pledged huge amounts of monetary support for the relief and rehabilitation actions. Other forms of help have also been pouring down—navy force being sent by the US, the Matching Fund scheme by Canada, medical team offered by Turkey, search and rescue unit offered by Spain and Russia, among others. International artists and celebrities have also held benefit concerts, projects, and events. For the foreign aid, we do not really care to know how the money will be sent to our authorities and what borrowing money from other countries say about our government funds. At most, we worry that they fall into the wrong hands. Nobody, other than the media and those directly in charge, actually talk about the government’s Calamity and Contingency Funds. It seems ironic how law students like to know what goes down in government agencies and their operations and then comment on their performance, but in the recent crisis not seem to be interested in what the law says about funds.

DLSU’S LEGAL AID. This is the only legal aid to Yolanda victims I have heard of from the news. A group of lawyers and law students from De La Salle University will be sent over to assist typhoon survivors. We all know that in order to claim benefits,

certain documents are needed. However, all documents have been swept away by flood. The legal experts and students will be sent there to make sure the proceedings are in order and the requirements as laid down by law will be followed. They plan on sending the legal team this January. I admire the efforts of DLSU Law in extending legal aid to the victims and most especially in planning to send them at the right time. I personally am not entirely sure how it is going to be helpful at this stage of the crisis if they do send the team right away. I admire the immediate response of DLSU Law in the crisis, and its recognition that a legal aid may not be an immediate need right now. The legal facet of the situation is the least of the concern of the victims today. Presence of lawyers and law students are not needed in the Visayas as of the moment, unless they are there to do some legwork for the relief operations. When a victim comes up to you and says his child is dead, you do not go asking if they found the body and if not, go on explaining to him that “you know according to the Civil Code four years pa para magka-presumption of death.” Rather, you sympathize with the victim and you try to determine what his immediate needs are and actually provide the same.

This whole worst-calamity event has made me see what kind of students law students are, at least those from Ateneo. Yes we do talk about the crisis the way everybody else does, as though we do not see the legal aspect of it. Others might think that this only goes to show that law students are no lawyers and have yet to grasp the “legal mind.” On the contrary, this is precisely what makes us learners of the law: we know when to insist on its application; we know when to insist on its relaxation. We know when it is needed; we know when it is not yet called for. P

LeitartikelBy Darcee Lois B. Galleon

LET’S FACE it: we spend a lot of our time on the Internet. Our generation lives, breathes, and eats the Internet. We receive real-time information by just logging on to our Facebook or Twitter accounts. Just by reading the headlines, we get an inkling of what happened to the rest of the world while we were sleeping, studying for a quiz, or temporarily without a decent Wi-Fi connection. Just by clicking a tab or a button, we get to share the news with other people. An effect of sharing such information is e-Activism or social media activism. I would describe it as using social media networks to share socially relevant information with other people.

Remember the Purple Ribbon campaign where we were asked to change our profile pictures to show support for the passage of the Reproductive Health (RH) Bill on Facebook? Or the time we changed our profile pictures or cover photos to black because the Anti-Cybercrime Bill was passed? Or the time we joined the #MillionPeopleMarch against the pork barrel controversy? Or the time we shared links to help fellow Filipinos who were affected by typhoon Yolanda receive relief? All these are just some of the major instances which utilized social media to reach people and spread the word. There is never a dull moment when it comes to news. There is always something

e-Activism: Advantage or nuisance?

interesting that will catch one’s attention. As netizens and law students, it is our duty to gather all sides of the story and then decide which side we are on. It is when we blindly follow these instructions that e-Activism becomes a nuisance. Take for instance changing your Facebook status in support of Breast Cancer Awareness month. Did you really contemplate on breast cancer? Another instance was posting that selfie on Instagram during the barangay elections. Were the people actually moved to vote when they saw your face on Instagram? These are only some of the instances where, I think, social activism is abused. While there may be a disguised social

relevance, it is not enough to incite change. Social activism is about change—to move other people so that they do not end up apathetic. Let us use the information we have to generate a socially-relevant revolution. In e-Activism, everyone is given the opportunity to participate and voice out their opinions. For the year 2014, will doing and seeing these acts on your Facebook timeline incite passion in your beliefs, regardless of which side you are on? I hope it does. And if you agree with me, change your Facebook status and share this quote of Mahatma Gandhi’s, “Be the change that you wish to see in the world.” P

“In response to Senator Bong Revilla’s privilege speech last January 20, 2014:

Mr. President, tama na po ba? Tama po ba? Tama na po na ako na lang ang kutyain. Pero tama po ba na pati ang mga bata na wala namang kinalaman sa pulitika ay kinukutya? Tama po ba na sila ngayon ay binu-bully? At dahil sa mga imbentong paratang na paninirang puri ay masyado itong dinamdam ng

aking anak kaya tumigil muna siya sa pag-aaral ng abugasya....

For the record, we never bullied her.-Block C, 2017

Ateneo Law School Secret FilesPosted on January 23, 2014, 6PM

On the Record: BULLYING

9

LEGALwww.palladiumonline.com

@palladiumALS

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AS EARLY as 1994, the constitutionality of the pork barrel, then called the Countrywide Development Fund (CDF), was challenged on the grounda of violation of the rule that, although appropriating money is the function of Congress, spending it is the prerogative of the executive branch.

The Supreme Court ruled in favor of the CDF. It said that what the law allowed members of Congress to do was simply to recommend projects. If the recommended projects qualified for funding under the CDF, it was the President who would implement them. Prior to the approval of the 1994 General Appropriations Act (GAA), pork barrel, which was recognized by the 1935 Constitution as a legitimate institution, had not received much attention. In the years from 1972 to 1986, there was no talk about pork barrel. But those were unusual years because, for all practical purposes, President Ferdinand Marcos controlled the national treasury, both pork and beef.

After the restoration of democratic processes and in the years from 1986 to 1993, pork barrel was not a hot subject of

debate. It was only after the approval of the 1994 GAA that pork barrel became a frequent front-page subject for heated discussion.

What was it in the 1994 GAA that invited debate?

Earlier pork barrel laws specifically stated that the money could be released only with the approval of the President, and that the budget secretary should promulgate rules and regulations for pork barrel funds. For as long as this was followed, there was no problem. However, such requirements were removed by the 1994 GAA, Republic Act No. 7663.

Officials concerned

R.A. 7663 simply said: “The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned.”

Who are these “officials concerned”? They are senators, representatives, and the Vice President. In effect, R.A. 7663 gave to the members of Congress control over the release of approved funds.

Whereas under the Constitution it is the President, either directly or through executive agencies, who should control the release of funds, the executive agencies awaited the go-signal of the members of Congress before they could release the funds for the projects recommended by the members of Congress.

The [19 November 2013] decision of the Supreme Court restores the normal constitutional order of handling public money. The first destination of money coming in for the public, either as taxes or other forms of income, is the public treasury. And such money stays in the treasury until Congress determines how it is to be used.

As the Constitution says, “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” The appropriation can be either through the general appropriations law or through special appropriations. This provision prevents members of Congress, and the President, from indiscriminately spending unappropriated money.

Now that we have the Supreme Court decision, unappropriated and unspent money will have to be returned to the general coffers of government “except for the funds covered by the Malampaya Fund and the Presidential Social Fund, which shall remain therein to be utilized for their respective special purposes not otherwise declared unconstitutional.”

By Fr. Joaquin G. Bernas, S.J.

SC decision restores normal constitutional order

Effect on President

What effect will this decision have on President Aquino’s capacity to meet emergency situations? I do not know how much money the President has in the contingency provisions for him in the general appropriations law.

Does he have the resources needed to deal with the effects of the October earthquake in Bohol and now also with the ravages caused by Supertyphoon “Yolanda?” At the rate the President is reassuring the survivors of the ravages caused by nature, he probably is confident that he has the resources. If needed, he can call Congress to a special session to appropriate what more is required.

The beneficiaries of the pork barrel will probably be unhappy with the high court’s decision. Many of them really needed what the pork barrel system had given them. That need of many remains.

The challenge now is for Congress and for the President to devise something constitutional to fill the vacuum left by the Supreme Court’s decision declaring pork barrel unconstitutional. P

Joaquin G. Bernas, S.J. is a lawyer, professor, and the Dean Emeritus of the Ateneo Law School. He was a member of the 1986 Constitutional Commission, and has published various books in Constitutional Law.

The article is published with the permission of the author. It was also published in the Philippine Daily Inquirer on 20 November 2013.

crowd workers are either paid hourly or at a fixed rate. Some platforms have time-tracking software that takes random screenshots of the worker’s computer to verify if said worker is indeed working. Once verified, payment is guaranteed for all

the time logged or tracked. Such payment is coursed through the platform as well.

A class of its own

WITH THE fast-paced advancement of technology today, phones and computers are not the only things that improve and become sleeker. The development has also created a new world – a virtual one – with its own currencies such as Bitcoin, its own form of pirates and leechers, its own people called “netizens,” and its own system of facilitating employment or “virtual work” across state borders without having to book a flight and travel for miles across land and seas. There is a certain type of virtual work prevalent today called “crowdsourcing.”

Matt Cooper, Vice-President of

Marketplace Operations of oDesk, a well-known crowdsourcing platform, visited the country in 2012 and gave these statistics: there are already around 550,000 registered Filipino “contractors” in oDesk; the Philippines is the second largest provider of workers on the platform; and from 2009 alone, clients have spent USD95.6 million hiring Filipino contractors. Researchers believe that as much as 20 percent of any job will be crowdsourced in the near future.

Crowdsourcing: The virtual work

So how exactly does crowdsourcing work?

A company or an individual might need a workforce to develop a certain product or provide certain services electronically. To address the need, they call out to a “crowd” to perform tasks. The crowd referred to is the undefined online public. Imagine these tasks as similar to job openings published on Jobstreet.com or on a broadsheet, but this time, broadcasted through a web crowdsourcing platform (websites like oDesk and Elance). These websites exist to connect the companies or service requesters to potential crowd workers.

Since the tasks are viewable by the

online public, any interested individual can apply for the job. All one needs to do is create an account on the crowdsourcing platform. Service requesters usually reach the applicant for interview via Skype or some other software application that allows

chat and video calls over the Internet through the private messaging feature of the crowdsourcing platform or through e-mail. Once accepted by the service requester,

The tasks posted on crowdsourcing platforms vary and range from simple data entry and transcription to more complicated fields as legal services and web design. There are short-term engagements, contractual arrangements, and others that may run indefinitely. But one legal quandary arises: when does an employer-employee relationship begin to exist?

This new working environment, where the service requester and the crowd worker are only digitally connected, has brought about a legal uncertainty regarding the obligations of both parties to each other. Each crowdsourcing platform has different terms of use for crowd workers. Some explicitly provide that the relationship between the service requester and the crowd worker may give rise to the worker’s employment status, with the burden on the part of the service requester to properly classify the worker as such. If such burden is with the service requester, he or she must, first of all, be able to distinguish when an employment relationship is absent and when a job contracting takes place. There are other platforms, however, which state that such relationship only results in an independent contractor status no matter what the arrangement is between the requester and the worker.

It is a reality that the advancement is moving far more rapid than what our current laws can keep up with no matter how dynamic they can be. Do we have pertinent laws and jurisprudence to guide this legal uncertainty of whether or not an employment relationship exists in this type of alternative work structure?

There are certain points that would have to be considered in this legal reality. For one, the principle of the employer’s power of control is a notable factor in crowd work. Also, the Philippine jurisdiction’s concepts of employer-employee relationship and labor “contractor-ship” are of American origin, thus, there is a need to look into

© Matt Taylor for WIRED Magazine

Classifying crowdsourcing under labor lawBy Patricia Aguila and Nellaine Soliman

10

how these types of workers are treated under the laws and jurisprudence of the United States. There is also the possibility that crowd workers may be classified as non-industrial homeworkers, who must likewise be protected under the law.

Ambiguity in the control test

Under the Labor Code of the Philippines, there is no specific definition of “employer” and “employee.” It has always been the task of the courts to determine whether or not an employment relationship between these parties exists. In the 2006 case of Francisco v. National Labor Relations Commission, the Supreme Court recognized that although there is no uniform test used by the courts, there are two tests which are regularly referred to when confronted with the issue of a person’s employment status: the four-fold test and the two-tiered test. The four-fold test looks into the employer’s ability to hire, dismiss, pay the worker‘s wages, and control the means and outcome of the work. The two-tiered test, meanwhile, looks not just into the power of control but also the underlying economic conditions in the relationship. Regardless of the test used by the courts, the alleged employer’s power of control over the worker should be apparent and proven. Otherwise, no employment relationship exists.

There is no set criteria in defining the power of control, which usually pertains to control over a combination of different factors, namely, the quality of the worker’s deliverables, the exclusivity of his or her service, the schedule of his or her work, and the place where he or she is supposed to report. According to labor law professor Cesario A. Azucena, Jr. in his book Employment and Outsourcing under Philippine Law, the difficulty lies in assessing whether certain factors or elements properly indicate the presence of control.

In crowd work, service requesters usually have some control over how the work gets done. They could engage in fairly close virtual supervision through different tracking mechanisms online. They usually dictate the software or the interface that must be used, and in many cases, also provide detailed instructions. Requesters can reject work, which means that they can return it with feedback or further instructions, and condition payment upon compliance. But independent contracts, through negotiated terms, may also provide a satisfaction clause. Qualifications over the work and regular progress reports may be

required. Hence, having sufficient quality control over how the work gets done does not necessarily equate to their employment status. On the other hand, the crowd worker’s ability to choose when and where to work and the ability to work for different service requesters seems to resemble exactly the flexibility of a self-employed job contractor.

It is important to take note that the State’s self-declared policy is to afford “full protection to labor” and to give workers a right to “security of tenure and humane conditions of work,” as provided in Article XIII, Section 3 of the 1987 Constitution. While the four-fold test is more commonly used by our courts in determining the existence of an employer-employee relationship, the Supreme Court, in Francisco v. NLRC, has held that the “underlying economic realities of the activity or relationship” should also be examined especially when the terms of the contract are not clearly established.

In crowd work, the client usually assumes all liability for proper classification of workers as independent contractors or employees, as written on the platform’s terms of service. The platforms hold themselves free from any liability arising from any misclassification. If filed in Philippine courts today, an action pushing for the employment status of crowd workers will most likely fail, given that there are no exact legal guidelines for the same and that the circumstances of virtual workers are inapposite to the factors considered by our courts in determining an individual’s employment status. With these in mind, how then can a court determine the economic realities of virtual work?

Back to origin

As earlier mentioned, Philippine jurisdiction’s concepts of employer-employee relationship and of labor “contractor-ship” are of American origin. Hence, it is important to look into how American courts would decide on the employment status of virtual workers. Although there have been no federal cases on such matter thus far, the circumstances are analogous to the cases of Donovan v. DialAmerica and Pulse v. Halferty, where the employment status of a researcher and a phone operator, respectively, both working at home, was disputed.

In these two cases, the employment

status of the workers was questioned for purposes of the Fair Labor Standards

Act (FLSA). In analyzing the possible employment relationships pursuant to the FLSA, the United States courts checked the circumstances of the whole economic activity. In Donovan, the degree of control exercised by the alleged employer was not appreciated by the court because the very nature of home work entailed little supervision from the alleged employer. The Third Circuit court found that the lower court “misapplied and overemphasized the right-to-control factor in its analysis.” Meanwhile, the court in Halferty extracted Pulse’s power to control from its directions toward the manner, performance, and delivery of the work.

Another feature of non-industrial home work is that the worker may be the one to pay for his or her own telecommunications and utility expenses, and this might be labeled as an “investment” that is usually shouldered by an independent contractor. However, the court in Halferty stated that payment for one’s home lease, phone bill, and other utility expenses did not amount to “investment” because the worker would incur these expenses whether he or she has home work or not. It was also found that the degree of opportunity for profit and loss was small, the skills required in doing the job were few, the relationship with the alleged employer was permanent and not transitory, and the services rendered were an integral part of the business. These cases are thus instructive because there are striking similarities between DialAmerica and Halferty and a typical crowd worker.

Failing to fit

The Philippine Labor Code and the employment tests do not necessarily accommodate new labor models very well. If crowd workers fail to fit the legal definition of an employee, it is not because they fall squarely into some other bracket. These crowd workers can either be idle college students or fixed-income retirees who are not entrepreneurs, bargaining independently and using initiative to maximize their profits. They are fungible particles in an on-demand labor pool. They do not really appear to fit the picture of the kind of worker legislatures and courts sought to exempt from statutory protection.

Under Article 153 of the Labor Code, the government is tasked to regulate both industrial homeworkers and field personnel. An industrial homeworker denotes an employee who works at home to produce a good. On the other hand, a field personnel is a non-agricultural employee

who regularly performs his or her duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. How, then, should virtual workers be classified? One possibility is for virtual workers, most especially crowd workers, to be classified as a kind of non-industrial homeworker who should also be protected under the law. Although the place of work is not a factor in determining the presence of control, the situation of field personnel is still not analogous to the situation of crowd workers simply because crowd workers have no physical worksite to report to. They may never even be able to set foot in the service requester’s establishment since they have the option to just remain digitally connected. And although a crowd worker’s condition is more similar to the situation of homeworkers, there have been no Philippine cases on homeworkers that the courts can compare by analogy. More importantly, the Labor Code only recognizes industrial homeworkers. Crowd workers cannot be referred to as industrial homeworkers simply because they are not tasked to produce goods. But if industrial homeworkers and fieldworkers are recognized as employees in the Philippines, why should not non-industrial homeworkers like virtual workers be treated the same way?

Towards a modern labor law

The rampant emergence of crowdsourcing calls for the modernization of the determination of virtual workers’ employment status, recognizing the legal and economic realities of their situation while securing the mandate of the Labor Code and our Constitution to fully protect labor. Whether there is a need for better-calibrated tests for remote workers and a finer-grained approach to online work, or the application of instructive rulings as in the cases of Donovan and Halftery, the emergence calls for a modern labor law that seeks to analogize, to adjust, or to abandon existing doctrines. Nothing prevents the judicial system from doing the same when a group of crowd workers brings the industry’s first class action. P

The article is based on the thesis entitled “Establishing the Employment Status of Virtual Crowd Workers” written by Patricia Aguila, a fourth year student at the Ateneo Law School.

L E G A L

THE PUBLICATION in printed form of the well-known magazine Newsweek has stopped, and its management has opted to shift to publishing the digital version of the magazine instead starting last year. Companies in the Philippines are likewise beginning to go paperless. Banks are maximizing the use of digital applications to produce or copy records. Publishing firms have started commercializing electronic books (e-books) and magazines to

keep up with the proliferation of tablets and smart phones. Files have become more accessible with digital downloading through the Internet. Music, video, books, photographs, and word files can easily be shared without having to walk to actual stores to get them.

The rise of digital downloads can bring about potential revenue for the government through taxation, ‘the power of the government to impose burdens upon subjects and objects for the purpose of raising revenues to defray its expenses.’ But in some countries, it has created a tax problem, a possible loophole or gap in the feasibility of taxing the sale or exchange of these items. In the case of digital sharing and downloading, either the subject or object has not yet been contemplated by old tax laws or it is impossible to impose a tax on the exchange of items when it cannot be adequately regulated or monitored after all.

As early as 2009, states in the United States of America like Washington and Kentucky have imposed taxes on digital contents including e-books. As of 2013, New York and California are among those which exempt digital contents from sales tax.

Also in 2013, the European Union (EU) released an official statement about imposing Value

Added Tax (VAT) beginning 2015 on e-book operators to curb an offshore tax loophole in its tax rules. Local and foreign operators of e-books such as Amazon would now have to pay VAT at the point of consumption within the EU, while no VAT is imposed for those consumed outside the EU. The foreseen reasonable effect is that VAT, being an indirect tax, will hike the retail price of the e-book product. Prior to the EU Directive, France and Luxembourg hadalready imposed VAT on the sale of e-books.

In the Philippines, Section 109(1)(R) of the National Internal Revenue Code (NIRC) of 1997 provides that the “sale, importation, printing or publication of books and any newspaper, magazine, review or bulletin, which appears at regular intervals with fixed prices for subscription and sale and which is not devoted principally to the publication of paid advertisements,” is exempt from VAT.

The Bureau of Internal Revenue issued Revenue Memorandum Circular (RMC) No. 75-2012 in November 2012, clarifying that the terms “books and any newspaper, magazine, review or bulletin” pertain to printed items in hard copies only. The terms do not include their digital or electronic versions. This follows the rule on statutory construction that tax exemptions are strictly construed. To be able to claim exemption, the exemption must be expressly provided for in the law and proved. Consequently, the sale of the digital and electronic versions of these items is subject to the 12 percent VAT

under Section 106(A) of the NIRC. The interpretation was reaffirmed in the recent BIR Ruling 170-2013 that the sale of digital versions of these printed products for educational purposes are subject to VAT. This then leads to an anomaly—why are educational digital contents subject to VAT when printed books of the same purpose are exempt? It is similar to the situation Luxembourg faced in 2012 when experts questioned why e-books are taxed at three percent but printed books may be taxed at zero-rate.

It would definitely be impossible for publishers and sellers of these digital contents to claim exemption considering that when the NIRC took effect, digital publishing and downloads could not have been contemplated by our lawmakers. Publishers are already poised to create ways to curtail piracy that has resulted in a declining market due to the ease and accessibility of digital downloading. Adding the burden of the tax imposed on the sale of the digital readings may further result in the unwillingness of people to buy them when the tax burden can be further apportioned by “sharing” the same digital content through the Internet, cloud, or e-mail service providers. This anomaly and the feasibility of imposing tax on the exchange of digital contents are just among the new challenges that our lawmakers will need to consider should there be a move to finally amend our tax laws concerning these products to reflect the digital age. P

Anomalies of taxing digital downloadsBy Nellaine L. Soliman

© Unclebumpy via flickr

11L E G A L

TYPHOON Yolanda, known internationally as Haiyan, was one of the strongest typhoons to hit the Philippines on that fateful Friday of 8 November 2013. It was also considered the world’s strongest typhoon in the past year, having affected massive numbers of people, causing death, injury, and damage to property. According to an update by the National Disaster Risk Reduction and Management Council (NDRRMC) as of 23 November 2013, about 5,235 individuals have been reported dead, 23,501 injured, and 1,613 still missing. There are around 2,157,529 families or roughly 10 million people affected in 44 provinces. Airports, seaports, infrastructure, telecommunications facilities, and agriculture were severely damaged. The total cost of damage is estimated at about Php22 billion.

Amid the devastation wreaked by Typhoon Yolanda, some questions arise. Is it possible to have zero casualty as aspired for by President Benigno S. Aquino III days during his national address before the coming of Typhoon Yolanda? Are there even ways to at least minimize the damage caused by typhoons of such nature? Experts are saying that with climate change manifesting itself even more patently, there is a great possibility that another typhoon of the same magnitude will hit the Philippines and other countries anytime soon. Is the Philippines ready for another disaster?

It can be argued that the number of casualties and the extent of the damage brought about by such disaster could have been eliminated or, at the very least, minimized had proactive steps been taken. Preparation is very important especially for the Philippines, a calamity-stricken archipelago. One of the instances of the embodiment of such preparation in Philippine law is in Republic Act (R.A.) No. 10121 or An Act Strengthening the Philippine Disaster Risk Reduction and Management System, Providing for the National Disaster Risk Reduction and Management Framework and Institutionalizing the National Disaster Risk and Management Plan, Appropriating Funds Therefor and for Other Purposes. The law, also known as the Philippine Disaster Risk Reduction and Management Act of 2010 (DRRM Act), was enacted on 27 July 2009 and signed into law on 27 May 2010 during the term of former President Gloria Macapagal-Arroyo. The DRRM Act repealed Presidential Decree (P.D.) No. 1566, also known as An Act Strengthening the Philippine Disaster Control, Capability and Establishing the National Program on Community Disaster Preparedness.

Salient features of the Philippine ‘disaster’ laws

Presidential Decree No. 1566 focused on disaster control, while the DRMM Act focuses on disaster risk reduction and management. The former law comes into play after the occurrence of a disaster, while the latter law provides mechanisms prior to the happening of a disaster. As such, Section 3(n) of the DRRM Act defines disaster risk reduction as the “concept and practice of reducing disaster risks through systematic efforts to analyze and manage the causal factors of disasters, including through reduced exposures to hazards, lessened vulnerability of people and property, wise management of land and the environment, and improved preparedness for adverse events.” This is in line with the State’s policy, as provided in Section 2(a) of the same law, which is to “uphold the people’s constitutional rights to life and property by addressing the root causes of vulnerabilities to disasters, strengthening the country’s institutional capacity for disaster risk reduction and management and building the resilience

of local communities to disasters including climate change impacts.”

The law is supposed to provide for the development of policies and plans, and implementation of actions and measures involving all aspects of reducing and managing disaster risks. Section 5 of the DRRM Act enumerates the people who shall compose the National Disaster Risk Reduction and Management Council (NDRRMC), including the Secretaries of the Department of National Defense (DND), the Department of Interior and Local Government (DILG), the Department of Social Welfare and Development (DSWD), the Department of Science and Technology (DOST), and the Director-General of the National Economic and Development Authority (NEDA). Clearly, what is contemplated by the law is the joining of forces of the heads of these agencies in times of trouble, when they are especially needed. The law also provides that the powers and functions of the NDRRMC are not limited to answering the calls for rescue and relief by the victims, but also extend to policy-making, coordination, integration, supervision, monitoring, and evaluation functions. The NDRRMC Chairperson is even authorized to call upon or mobilize other government instrumentalities or entities, as well as non-government and civic organizations for assistance in the protection and preservation of life and property. However, the law assigns responsibility not only on the national level but also on the regional and local DRRM Councils.

While Section 14 of DRRM Act is another salient feature which provides not only for the integration of disaster risk reduction into school curricula and the Sangguniang Kabataan (SK) program, but also the mandatory training for the public sector employees, such is yet to be seen, considering that the SK is no longer exists as of the 2013 local elections.

The DRRM Act also provides for the declaration of a state of calamity by the President. This is a clear example of the application of Article VI, Section 23(2) of the Constitution which states that “In times of war or other national emergency, the Congress may, by law, authorize the President…to exercise powers necessary and proper to carry out a declared national policy.” Under R.A. 10121, as a consequence of the declaration, remedial measures may be employed. These measures include price control of prime commodities, medicines, and petroleum products; programming or re-programming of funds for the repair and safety upgrading of public infrastructures and facilities; and grant of no-interest loans by government financing or lending institutions to the sectors most affected by the disaster.

One important feature of the DRMM Act which sets it apart from P.D. 1566 is that the declaration of a state of calamity is no longer needed in order for the allocated DRMM fund to be accessed and used. In addition, 30 percent of the fund shall be allocated as Quick Response Fund or stand-by fund for relief and recovery programs in order for the

DRRM Act: The law in times of disasterBy Le Iris Lucido, Contributor

Illustration by Ana M. Lacanlalay

situation and living conditions of people in disaster-stricken areas to normalize immediately.

Section 18 of the DRMM Act provides for the Mechanism for International Humanitarian Assistance, wherein importations and donations shall be considered as importation by and/or donation to the NDRRMC, subject to the approval of the Office of the President.

As of 13 November 2013, in the aftermath of Typhoon Yolanda, the Department of Foreign Affairs (DFA) has reported that majority of the aid from the international community for the victims of the typhoon will not pass through government agencies, but rather directly to the victims or through different channels, such as non-governmental organizations and private charitable institutions and foundations. Considering that among the prohibited acts under Section 19 of the law is “preventing the entry and distribution of relief goods in disaster stricken area,” there is a question of whether slowing down may be construed as “preventing,” when the authorities themselves admit that the very bureaucratic process creates bottlenecks in the distribution of aid to the victims of Typhoon Yolanda.

Another prohibited act is “misrepresenting the source of relief goods, equipment or other aid commodities” (this includes repacking the goods, equipment or other aid commodities into containers

with different markings to make it appear that the goods came from another agency or some other person, or was released upon the instance of a particular agency or persons). Reports in the days following the Yolanda catastrophe have shown that several politicians and their supporters were caught red-handed in distributing aid repacked with their campaign logos and names. Section 20 of the DRMM Act provides that the penalty for these acts includes imprisonment up to twelve years or a maximum fine of Php 500,000, or both.

Given these salient features of the law, a lingering question would be: had the Philippine DRRM Act of 2010 been properly executed, or had a new disaster agency been created, would the Visayas region experience such same fate? According to environmental policy expert Dean Tony La Viña, a new independent disaster agency that will respond to the failure of the current system, especially in terms of communication and training, is needed. This would, in the long run, be more cost-efficient in addressing the future calamities the Philippines is bound to experience in light of its geographical location. In any case, the Philippines must really learn from such devastating calamities. Ultimately, the government should double its efforts to execute the existing DRRM Act, at least at its most “ideal,” in order to save more lives and property in the future. P

12

THE FILIPINOS have witnessed some of the country’s most shocking political controversies and spectacles in the past couple of years. These include issues ranging from the impeachment of a Supreme Court Chief Justice to the government’s allegedly weak response to the havoc left by Supertyphoon Yolanda. As Benigno Aquino III took the reins of the Philippine presidency, a number of people expected him to bring resounding change in the local political landscape, as reflected by his slogan “Kung walang corrupt, walang mahirap.” For a time, it looked like things were indeed taking a turn for the better—that is, until 12 July 2013, when the Philippine Daily Inquirer published an article exposing the alleged Multi-Billion Pork Barrel Scam through whistleblower Benhur Luy. Luy revealed a scheme, which involved several senators and congressmen, and the now infamous Janet Lim-Napoles.

The pork, the barrel, and the history

The pork barrel issue prompted not only widespread criticism online, but also the spontaneous staging of the Million People March, which saw people from all walks of life gathering in Manila to clamor for the pork barrel’s removal. But how does pork barrel work, and where did it come from?

Pork barrel pertains to government appropriation, bill, or policy, which not only supplies funds for local improvements, but also ingratiates legislators with their constituents. According to constitutionalist Fr. Joaquin Bernas, the term can be traced to the practice of slavery in America during the 1800s. At that time, desperate African-American slaves fought for measly scraps of salted pork placed in barrels. This barrel of pork would then create a semblance of financial gain amongst the slaves. In the same manner, our legislators eagerly compete for a hold of their local appropriation. According to journalists Yvonne Chua and Booma Cruz, Americans introduced pork barrel in 1922, at a time when acts for public works were separated from the General Appropriations Act (GAA). The legislators enacted Republic Act 3044, the first pork barrel appropriation then. This Act separated public works into two categories. The first one was national in scope and covered such projects as roads, bridges, and national buildings, which fell under the authority of the Director of Public Works. The second type included schools, police barracks, and public buildings, and is the closest resemblance to the kind of pork barrel we have today.

During World War II, the pork barrel system was discontinued. It was resumed, albeit in a different form, during the 1950s. Instead of specifying projects, the system worked in favor of legislators as they were given discretion and leverage in choosing which projects to fund.

In 1982, the concepts of “soft projects” and “hard projects” were introduced via the “Support for Local Development Projects,” an item in the GAA. This not only allowed legislators to put up infrastructure projects and the like under the “hard project category, but also gave them the ability to spend on other small or “soft projects,” like the purchase of medicine, scholarships, sports equipment, and pesticide.

Pork barrel has taken on several names since 1990. It was dubbed as the Countrywide Development Fund during the Cory Aquino Administration, and even classified according to the type of project it funds such as the Public Works Fund and the School Buildings Fund. It was known as the Congressional Initiative Allocation during the Ramos Administration. However, the current name, “Priority Development Assistance Fund (PDAF),” was coined during the term of former President Joseph Estrada, and has been carried over to the current administration.

According to the report of the Commission on Audit (COA) on the 2012 PDAF allocations, the present PDAF funds different projects identified by the legislators and are included under the GAA as a lump sum appropriation. The so-called soft projects are identified under the PDAF, while the hard projects are identified under “Various Infrastructure including Local Projects” of the Department of Public Works and Highways.

Despite its long history, pork barrel has been a consistent source of controversy. The Philippine Center for Investigative Journalism (PCIJ) has reported that in the payment schedule to contractors and suppliers involved in the allocated pork barrel of a lawmaker, around 50 percent is paid as a ‘kickback’ to the lawmaker, while another 50 percent and 10 percent of the balance is respectively paid to the lawmaker and implementing agency when the pork allocation finally reaches the stage of issuance of a Notice of Cash Allocation by the Department of Budget and Management (DBM). When either the contractor finally commences the work or the suppliers deliver the goods, about seven perecent and three percent of the payment for the release of necessary permits goes to the mayor and barangay captain or other local officials respectively.

Pork barrel around the world

The pork barrel system is not limited to the Philippines. As mentioned earlier, it was the Americans who first came up with the concept. In an article by Jose Fernandez of Business Mirror, he indicated that the pork barrel system is more commonly known as the “earmarking” of funds in the US. This also involves allocation of funds to certain legislative districts or providing for more business opportunities to benefit the legislators’ constituents. Interestingly, Europeans have curious names for pork barrel. Pork allocations are known as “electoral alms” in Romania, “election sausage” in Poland, “portioning of the bear” or “pre-election goulash” in Czech, and “sweeteners” in Britain. Though fascinating, these difference in names is not important since all of them work in almost the same fashion.

Pork barrel in present day Philippines

Pork barrel has been a catch bin of controversy in the country over the years. However, the recent scandal involving Napoles and a number of legislators severely highlighted what appeared to be an abused scheme of allocating PDAF to fund

“ghost projects” for NGOs created by the very culprits themselves.

Even before Luy testified, COA observed that the release of the PDAF was not accurately and efficiently depicted in the reports of previous years. It also concluded that many legislators exceeded the prescribed amounts for funding, and that DBM was releasing the funds without the necessary endorsements, leaving projects unmonitored.

This is not the first time that pork barrel was scrutinized. Even during its inception in the country, several calls for its abolition were made. As documented by the PCIJ however, various officials from all three branches of the government have zealously defended pork barrel by alleging a dire need for funds for provincial projects. In PHILCONSA v. Enriquez, the Supreme Court (SC) rationalized the seemingly innovative pork barrel system. In LAMP v. Secretary of DBM, the use of the PDAF was further justified and upheld. In said case, the petitioner claimed that the GAA failed to specify the particular projects to be funded. It was argued that the Legislature had no authority to direct the Executive on what to do with the money. The SC, however, upheld the constitutionality and use of the PDAF, and cited an insufficiency in the arguments of the petitioner.

Final chapter?

Several individuals including Grego Belgica, Samson Alcantara, and Pedrito Nepomuceno filed petitions to question the constitutionality of the pork barrel system. However, Executive Secretary Paquito Ochoa, Senate President Franklin Drilon, Speaker of the House Feliciano Belmonte, and Budget Secretary Florenciano Abad, as respondents, defended the PDAF on the basis of the PHILCONSA and LAMP rulings.

As of 19 November 2013, the SC, in a decision en banc, declared the PDAF as unconstitutional in a vote of 14-0-1 (Belgica, et al. v. Executive Secretary, G.R. No. 208566). It cited the inconsistency of the PDAF with the respective mandates of the Constitution for both the legislative and executive branches of government.

Several issues were decided by the SC, but the main discussion boiled down to the constitutionality of the system, particularly the violation of the principles of separation of power, non-delegability of legislative power, checks and balances, and accountability. The Court looked upon the exceptional character of the situation in relation to public interest.

The alleged violation of the principle of separation of powers in light of the Congress’s post-enactment authority in the realignment and release of funds was resolved in the recent ruling. The 2013 PDAF Article expressly granted legislators the authority to identify the projects to allocate money for. The projects were taken from lists submitted by the agencies 90 days after the GAA was passed. While the SC earlier ruled that this power to identify projects was merely recommendatory, it now recognized the need to abandon the ruling. The new premise is simple:

once a law is passed, the Congress’s role is through, and the Executive steps in to enforce the enacted law. The power of appropriation is with the Congress, while the power of enforcement is with the Executive. The SC also held that the Office of the Solicitor General failed to prove that this authority to identify projects is only recommendatory when it admitted that without the identification, a legislator cannot avail of PDAF funds. It is therefore mandatory for a legislator to exercise post-enactment authority for the PDAF funds to be released.

On the issue of non-delegability of legislative power, the SC held that the granting of post-enactment authority to individual legislators violates this principle. Section 1 of Article VI of the 1987 Philippine Constitution vests the legislative power to the Congress as a body. However, the 2013 PDAF Article allows each legislator to exercise the power of appropriation. Each of them is able to set apart a certain amount from the public fund for a specific purpose. Each of them can direct where the funds will go, and this is contrary to the Constitution.

The SC discussed the item-veto power of the President under Section 27(2), Article VI of the Constitution as a prime example of the principle of checks and balances. The decision, citing Bengzon v. Secretary of Justice and Insular Auditor, stated that “the Chief Executive has the negative power by the constitutional exercise of which he may defeat the will of the Legislature.” In the 2013 PDAF Article, Php24.79 billion appeared as a single lump sum amount, the purpose of which has yet to be decided despite undergoing a veto analysis and approval by the President. The SC explained that such process could not have allowed the President to properly check the single lump sum amount, especially when there is no proper line item to veto. He is therefore limited to simply vetoing or approving the entire amount, without knowing where the funds will go. The SC described the character of the lump sum amount as a “budget within a budget.”

The SC’s discussion on the accountability of public officers was directed more on the susceptibility of legislators to take undue advantage of the post-enactment authority granted under the 2013 PDAF Article, such as using it for re-election purposes. Section 1, Article XI of the Constitution states that “Public office is a public trust.” In line with this, Section 14, Article VI also provides that a member of the Congress should not “intervene in any matter before the office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.” The SC ruled that the 2013 PDAF Article violates this constitutional provision. However, it found that the contention that pork barrel funds were being used to propagate political dynasties was merely speculative.

In finally declaring the pork barrel unconstitutional, the SC wanted to rectify an error that persisted from the past. Pork barrel—or by any given name—has emerged time and again throughout the course of history, but the real question now remains—is this end of pork barrel? Or will it simply take another form? P

Is this the final chapter of pork barrel?By Jose Maria Santos and Nellaine Soliman

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