Vol. I Issue I S.Y. 20011-2012

The famous Walt Disney once said, “We keep moving forward, opening new doors, and doing new things, because we’re curious and curiosity keeps leading us down new paths.” The USJ-R School of Law firmly believes that one A.S.C.E.N.D.S only by moving forward. That is why this newsletter is aptly called, ADELANTE.

As the USJ-R School of Law begins a new school year of bringing legal education to a higher ground, this maiden issue brings forth a promise of a more socially responsible advocacy of law and justice and an institution that commits itself to the highest standard of legal education, professionalism and excellence.

This issue is a collation of various articles written by law professors, alumni, students, members of the bench and friends from the business community who all believe that reforms in the government, society and legal profession is forthcoming. Their views on government, legal profession, moral issues and legal concern will enable every reader to better understand the lawyer’s responsibility to his client, profession and the community.

The articles from the students will further educate the reader what law school is like. It provides a wider perspective of legal education as provided by the University of San Jose Recoletos School of Law.

With this, it is hoped that the reader will have more reasons to flip through each page of this humble and noble compilation.

With a global community facing the worst financial crisis and a country shaken by political turmoil, may we all have reasons to move forward and use legal profession as tool for change. And may the USJ-R School of Law be instrumental in opening new doors and opportunities to make these change happen. ADELANTE!

Adelante…f rom the editor

REV. FR. ENRICO PETER A. SILAB, OAR- University President

REV. FR. RAUL M. BUHAY, OAR- VP Administration- Director, Basak Campus- Coordinator, Graduate School

REV. FR. EDWIN G. MACMAC, OAR- Director for External Affairs- VP Academics

REV. FR. HERNANDO D. COJA, OAR- VP Finance

REV. FR. CHARLITO A. OROBIA, OAR- VP Student Welfare- Director of Scholarships- Sports Moderator

REV. FR. AMADO EMMANUEL A. BOLILIA, OAR- VP Religious Affairs- Director, Center for Religious Education- Property Administrator

REV. FR. CONSTANTINO B. REAL, OAR- Director, USJ-R Balamban Campus- NSTP/CWTS Coordinator

FR. FR. RANDOLPH P. CASTILLO, OAR- Campus Ministry Director

REV. FR. JAY M. PARILLA, OAR- Chaplain, Basak Campus

REV. FR. ROLANDO P. CEPE, OAR- INFECOP Director- Safety and Security Administrator- Director, Talavera House of Prayer- Chaplain, Balamban Campus

Faculty Members:

Atty. Abraham Rey M. AcostaJudge Christine Muga- Abad

Atty. Ariel B. Bacatan Atty. Cynthia L. Barte

Atty. Marlon C. Baruc, CPA Atty. Benjamin A. Cabrido, Jr.

Atty. Rosalyn A. CaesarPros. Rodulph Joseph Val J. Carillo

Judge Anacleto G. DebalucosDr. Lorna G. Embalzado

Atty. Kit S. EnriquezAtty. Jude A. Fernandez

Atty. Daryl Bretch M. LargoAtty. Nelson G. Leyco

Atty. Amando Virgil D. LigutanAtty. Gonzalo D. Malig-on, Jr.

Atty. Victor F.. NiereAtty. Ethelbert B. Ouano

Atty. Butch Donabel Ragas-BilocuraPros. Liceria L. Rabillas

Pros. Maria Luisa G. RatillaAtty. Julius Christian L. Reyes

Atty. Romeo A. Reyes, Jr.Judge Estela Alma A. SingcoAtty. Jesus Ramel M. SungcadAtty. Brenda L. Tangarorang

Atty. Jennoh H. TequilloAtty. Janet B. Uy

Atty. Ma. Ada Aniceto-VelosoAtty. Joseph Stephen A. YgnacioAtty. Gerald R. Yu, CPA, REB

The USJ-R School of Law Faculty1st Semester SY 2009-2010

Atty. Jonathan Capanas, CPAAtty. Mae Elaine Bathan

Dean:Assistant Dean:

StaffersBoxAtty. Mae Elaine Bathan

Editor-in-Chief Atty. Piedad Gonzales

Associate EditorLyn Aguelo

Managing Staff

Contributors: Judge Meinrado Paredes

Justice Gabriel InglesAtty. Benjamin Cabrido, Jr.

Labor Arbiter Antipas CatipayAtty. Ma. Esperanza Christina Codilla-Frasco

Atty. Jennoh TequilloAtty. Joseph Stephen Ygnacio

Gordon Alan JosephRoland Lastimosa

The effects of the recent global economic crisis are felt by everyone. In the Philippines, most of us are dependent on employment as our bread and butter. Due to the decline of the demand of goods and services, some employers in the private sector are resorting to retrenchment and contractualization of workers. If the business is no longer viable, some owners opt to close operation.

Under the law, the employer has the prerogative to terminate his employees while the latter enjoy the right to security of tenure.

The Supreme Court enunciated the principle on “heightened demand of production of goods or services”. Under the said principle, the employer may be legally authorized to enter into a contract of services with his workers on a fixed-term employment. Consequently, contractualization of employment may become prevalent. Thus, the danger of losing our security of tenure in employment is in the offing.

To resolve the problem, may I share with you my little knowledge on the wisdom of Rerum Novarum on labor and capital?

Rerum Novarum is a letter sent by the Pope to all Roman Catholic bishops throughout the world.

On 15 May 1891, in an encyclical of 84 paragraphs, Pope Leo XIII, in a form of a parable, said:

“MEN SHOULD ENJOY THE FRUITS OF THE EARTH”

To adhere with the encyclical, we should utilize our natural resources on productive work guided by the principle “do your best and God will take the rest”.

Our operative metaphor or symbol is the sugarcane. An operative metaphor simplifies the communication process among us. Basing ourselves on this shared perspectives, we become enlightened and driven to perform.

The sugarcane was chosen as the operative metaphor of the Recollect Educational Apos-tolate after a prayerful discernment among the religious and the lay administrators. It serves as a source of inspiration and enlightenment to the schools and the individual members of these schools as we experience the complexities that abound this educational apostolate.

By choosing it we recognize the efforts of a Recoleto priest, Rev. Fr. Fernando Cuenca, OAR (1824-1902), who played a pivotal role in the sugar industry in Negros Island. We trace back the roots of our educational apostolate which began with the establishment of the short-lived Colegio de San Jose in Bacolod in 1896. It was the first secondary school of the Order which suffered a fatal blow during the Negros uprising in 1898.

We also acknowledge that five out of eight Rec-ollect schools are located in Negros, University of Negross Occidental-Recoletos (Bacolod City), UNO-R Talisay (Talisay City), Colegio de Sto. Tomas-Recoletos (San Carlos City), San Pedro Academy (Valencia) and San Pedro Academy-Recoletos (Caidiocan). The other schools are University of San Jose-Recoletos (Cebu City), San Sebastian College-Recoletos (Manila) and San Sebastian College-Recoletos (Cavite City).

Like education, the sugarcane requires hard work, diligence, and care. Its characteristics and features are guides in constructing and expressing the identity of the Recoletos Education.

In its initial stage, the sugarcane needs clear-ing, cultivation, nurturing and monitoring. So does education. “There is no room for wisdom where there is no patience.” St. Agustine would say (Sermon 153,1). The canes grow together giving the impression of perfect symbiosis among them. In the same way should education lead us toward harmonious communitarian aspirations

where everyone grows in the pursuit of truth, “the object of the aspirations of all men, and not a private affair of someone in particular” (De lib. Arb. 2, 12, 35).

Like the sugarcane which is cut and pressed to be of use, the Recoletos education requires renunciation of oneself in order to make it a fruitful apostolate for the educators and a ful-filling experience for the students. The exercise of personal deprivation is what our Father calls the ladder of humility which is used to reach the height of greatness, an experience of being deflated in order to be inflated (Serm. 96, 3).

Sugar is essential to daily life, and so is edu-cation. “one can rightfully say in metaphorical way that a person grows with learning and shrinks with forgetting” (Dimensions of the Soul, 33). As its canes are cut and replanted for a new generation of sugarcane, Recoletos Education aims at equipping individuals not merely to meet labor demands but more so to face the challenges of life.

“Springing Breakthorughs & Innovations”Recoletos Education:

Significantly, the National Wages and Productivity Commission of the Department of Labor and Employment through our Regional Tripartite Wages and Productivity Boards, introduced the ISTIV Program. ISTIV is one of the tools on productivity which stands for:

I - IndustriousS - SystematicT - Time-ConsciousI - InnovativeV - Values for work

INDUSTRIOUSWe should be industrious on all lawful work.

Although the book of knowledge tells us that we need 8 hours labor, 8 hours recreation and 8 hours rest in a day to live a normal life, some industrious people may sacrifice part of recreation or rest to maximize achievements.

Principle: Harvest more than ordinary man.

SYSTEMATICWe should work in chronological order. In the

six days creation, God created His creatures in the following order:

1. light2. firmament3. plants4. heavenly bodies5. animals6. Adam

Distortion of the system may make our work useless. In the same vein, if God created plants ahead of firmament and light, they won’t survive. This holds also true with the animals and Adam in the Order.

Principle: Science is a systematized knowledge based on nature and facts of life.

TIME-CONSCIOUSWe should work on time. Tardiness has no

place in life.Principle: Early bird catches worm.

INNOVATIVEWe should work with continuous improvement.Principle: Today is better than yesterday

and tomorrow is better than today.

VALUES FOR WORKWe should love our work as a source of living.

However, we may sacrifice work for love of neighbor.Principle: Service to humanity is service

to God.

THEME: ENJOY THE FRUITS OF LABOR THROUGH RERUM NOVARUM AND ISTIV.

Adherence to Rerum Novarum,The Answer to the Global Economic Crisis

BY: ATTY. ANTIPAS O. CATIPAY Labor Arbiter, NLRC, Fourth Division

BY: FR. CADRO LARLAR, OAR

USJ-R Adelante 3

How often do we make promises?An ordinary worker who failed to deliver his

work well as promised may end up getting fired. A businessman who willfully and maliciously failed to pay his debt and failed to comply with his obligations may end up in jail. A married couple on the other hand who failed to love each other eternally as promised during marriage may end up getting legal separation or worse have their marriage annulled. These are some of the effects or consequences of a mere failure to fulfill a promise.

In our day-to-day transactions the word “Promise” is a common factor involving a negotiable instrument.

A negotiable instrument may be a “a bank check, promissory note, bill of exchange or any other written security document that can be transferred by indorsement plus delivery, or in some cases by delivery only”. The effect of this transfer is to vest legal ownership giving the new owner the right to demand payment of the face amount of the instrument, along with any interest that may be due. Simply stated, a promissory note, a bill of exchange and a bank check are three (3) representative examples of a Negotiable Instrument.

Under the Negotiable Instruments Law, a negotiable Promissory Note is an “unconditional

promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer.” In ordinary obligations, the “maker” of the promissory note here is actually the debtor and in a negotiable promissory note he is actually the person primarily liable. The “payee” is the creditor and the party to whom the Maker must make payment on maturity.

A Bill of Exchange on the other hand is an “unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time a sum certain in money to order or tobearer.” The “drawer” of the bill of exchange is actually the debtor who requires the “drawee” to extend him credit by asking the latter to pay the bill to the payee first from his own pocket and later recover from the drawer the amount paid to the payee. The payee here is actually the creditor to whom the drawer is indebted and must first collect from the drawee who is required by the drawer to pay him on maturity.

A Check is a form of a bill of exchange drawn on a bank and always payable on demand.

Thus, if a person’s promise to pay is honored,

he can therefore issue a negotiable instrument. A patient for example, who does not have the money to pay his hospital bills, may, if allowed under certain circumstances, issue a promissory note in favor of the hospital, or instead of bringing actual cash to pay his hospital bills, he may issue a check in favor of the hospital. Take note, however, that although a negotiable instrument is acceptable as substitute for money, it is not considered a legal tender and will not be considered as full payment as to extinguish an obligation until it is actually converted into cash.

In other cases, thru a person’s promise as shown in a negotiable instrument, a person can likewise acquire commodities or things or make business dealings involving money even if he does not have the required cash. He can also complete a business transaction even if he does not have the actual cash. And, if he is short of cash, he may also enjoy some credit facilities thus increasing his purchasing power.

But what is really the value of promise?The value of promise is simply “Compliance”

and this compliance must be unconditional. In any case, a person can be held liable for failure to perform his unconditional promise and it gives the holder of the negotiable instrument the right to sue and the right to receive payment.

In public suits, locus standi or legal standing is that personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.

A party raising a constitutional question must show that: (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.

The question on legal standing would be easy to resolve if it is a natural person that is filing the suit since all he or she has to do is allege the causation of his injury with the challenged governmental act or policy.

Yet persons in law are not just confined to natural persons. They also include juridical persons such as a corporation, a partnership, an association, an estate and a ship. Awkward as may seem, a ship although without feelings can suffer ‘personal injury’ in law like a natural person. This is what is taught of us in law school.

A little problem may however arise if, instead of a natural or juridical person, it is an animate species of fish or marine mammals or an inanimate species of trees, islands or rivers that institute an environmental case.

Many attempts had been made in the U.S. aimed at getting legal standing to earth’s other species, like the trees, dugong and other marine mammals. After all, if these creatures are not protected, the whole system is threatened. One case however stood tall and almost gave the trees the right to sue - the Sierra Club v. Rogers C.B. Morton, et al.

To Justice William Douglas of the U.S. Supreme Court, the dissenter in the case of Sierra Club, granting legal standing to inanimate (or even animate) objects does not mean that the judiciary is taking over the managerial functions of the executive branch. It merely means, according to him, that before these “priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake)” are forever lost or are so transformed as to be reduced to the eventual rubble of urban environment, the voice of existing beneficiaries of these environmental wonders should be heard.

There is however a beacon of light at the end of the tunnel in this debate. Ecuador, which is a known eco-tourism destination had effective in October 2008 amended its Constitution granting unto nature the inalienable right “to exist, flourish, and evolve.”

Under Article I entitled “Rights for Nature”, the Ecuadorian Constitution mandates that:

“Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public bodies.”

Lucky for us in the Philippines, we already incorporated the very precepts of the Ecuadorian ‘Wild Law’ where under Sec. 16, Art. II of our Constitution, the Philippine State is mandated to protect and advance the right of the people to a balance and healthful ecology which is in accord with the rhythm and harmony of nature.

We are doubly fortunate that we need not amend our Constitution like Ecuador simply to accord legal standing to nature. Such power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure, including granting locus standi to species is properly the domain of the Supreme Court.

It may not be too long a wait then for the day to come when the very Supreme Court which gave legal standing on minors to sue on their behalf and on behalf of the generations yet unborn in Oposa v. Factoran will also grant one to nature’s other species.

Legal Standing of Species

The Value of Promiseby Atty. Joseph Stephen A. Ygnacio

By: Atty. Benjamin A. Cabrido Jr.Wild Law

Professor’s Opinion

USJ-R Adelante4

We lawyers take so much pride in that, ours is the most glamorous profession. What with most families desiring to have a lawyer in the family in order to gain prestige; what with most of the national and local leaders coming from the legal profession; what with lawyers usually occupying the top positions in the government and private enterprises and even in the Armed Forces, military officers take up law courses for advantage in promotion in rank.

Yet it is the height of irony, I believe, that while we pride ourselves that we have the most glamorous profession, only a minimal number of us actually engage in honest to goodness legal aid work.

I say it is the height of irony because law is considered as a profession precisely because its members are supposed to be dedicated to a spirit of public service.

Dean Roscoe Pound defines a profession as a “group of men pursuing a learned art x x x in the spirit of public service”.

Thus, as a lawyer one bears a responsibility to the public, which includes not only, a relationship with his/her client, with his/her profession, with the court, but also, with society in general.

Under the title “The Lawyer and Society” in our Code of Professional Responsibility, particularly Canon 2, it states”

“A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession.”

“A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.”

Further, under the IBP Guidelines, specifically Art. 1 Sec. 1 on Public Service, it says that:1. legal aid is not a matter of charity but a public

responsibility.2. it is a means for correction of social imbalance.3. legal aid offices must be so organized as to give

maximum possible assistance to indigent and deserving members of the community and to forestall injustice.

Beautiful words. But what do we see in reality, lip service.

There are more than 2,000 registered members of the IBP Cebu City and Cebu Chapters, yet how many are actively involved in legal aid? Not even 10%, I believe. And this is true nationwide.

That is why the glamour of lawyers and the legal profession has fast eroded. The public sees us as mercenaries who serve only when paid and who renders best service when paid well. In other words and sad to say, the glamour of the legal profession lies only in the imagination of us lawyers.

It is a sad but realistic commentary of our profession. But all is not lost. There is always hope. We can change and there is a change we can and should believe in. That unless and until most, if not all of us, get involved in honest to goodness legal service to those who cannot afford, lawyering can never regain its glamour, prestige and nobility as a profession.

In short, legal aid is the hope of the legal profession!

No lawyer should simply rest easy in the though that, anyway others are doing it. Let legal aid be a regular and ordinary part of lawyering and let that ordinary activity be done in the most extraordinary manner.

On November 25 and 26 of 2002 a round table meeting of Chief Justices was held at the Peace Palace in the Hague, Netherlands. The Judicial Group on Strengthening Judicial Integrity amended and approved the Bengalore Draft of the Code of Judicial Conduct. The draft was intended to be the Universal Declaration of Judicial Standards applicable in all judiciaries. It was founded among others upon the principle that a competent, independent and impartial judiciary is essential if the courts are to fulfill their role in upholding Constitutionalism and the rule of law.

On April 27, 2004 the draft code, was promulgated through AM No. 03-05-01-SC and took effect on June 1, 2004.

Canon I of the New Code of Judicial Conduct for the Philippine Judiciary reads:

“Judicial independence is a pre-requisite to the Rule of law and a fundamental guarantee of a fair trial. A judge shall, therefore, exemplify judicial independence in both its individual and institutional aspect”

In this country those who wield economic power wield political power and more often than not political influence. The rich and the powerful have vast resources as against the poor, the deprived and the oppressed. To make unequal things equal, those who have less in life should have more in law.

Whether the litigant is rich or poor, there must be a fair trial to be conducted by an independent judge. There can be no fair trial without an independent judge.

Not only must individual judges be independent in the conduct of trials, the judiciary, itself as an institution must be independent from the other branches of the government as well. The system of check and balance can only be maintained if the judiciary, as an institution, is independent. It is not the task of the judge to question the wisdom of the law. It is his duty to interpret the law in accordance with its letter and spirit.

Section 1 Canon I of the Code of Judicial conduct provides:

“Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement pressure, threat or interference, direct or indirect, or for any quarter or for any reason.”

The ABA annotated Model Code of Judicial Conduct describes an independent judiciary as one free of inappropriate outside influences. Pressures may come from political patrons, friends and associates, colleagues on the bench, media, civil society, militant and rebel groups.

Some judges get appointed through the help of political padrinos. We Filipinos observed “utang na loob. “ It’s payback time if the judge is already in the bench. But for an independent judge to be “ungrateful” is a virtue. After all Canon I requires that judges resist pressures from any source by maintaining independence in the pursuit of their duties.

The Supreme Court ruled in one case (Ramirez vs. Macandog, 144 SCRA 462) that a judge acted improperly when she rendered rulings based on directions she received from a government official.

JUDICIAL INDEPENDENCE from the bench

LEGAL AID, THE HOPE OF THE LEGAL PROFESSION

By Justice Gabriel T. Ingles

A judge should not be swayed by public pressure or opinion. He should be right rather than popular. After all, he is not a politician. The Supreme Court imposed disciplinary action against a judge who issued a warrant of arrest and fixed bail without hearing because he acted under pressure of a rally staged by the complainant and sympathizers. (Libarios vs Dabalos (AM No. RTJ-89-286, 199 SCRA 48).

In the performance of their judicial duties, judges must ignore public opinion, specifically disregarding editorials, columns or TV or radio commentaries on cases pending before him. (In Re: Kinsey, 842 So. 2nd 77[Fla. 2003]) .

An independent judge renders judgment based on facts established by evidence and the law applicable to the established facts, no more, no less. If he succumbs to extraneous influences, inducement, pressure, threat or interference, he is deemed to have lost his independence and considered unworthy of the position.

A judge who unjustly decides a case in favor of a local government unit because he is receiving allowance from it is a mercenary.

In Go vs. Court of Appeals, (206 SCRA 165) the Supreme Court said:

“It appears that the trial court has been awed by a desire to cater to public opinion to the detriment of the impartial administration of justice. The petitioner as portrayed by the media is not exactly a popular person. Nevertheless, the trial court should not have been influenced by this irrelevant consideration, remembering instead that his only guide was the mandate of the law. “

In a concurring opining, Honorable Justice Guttierez Jr. said:

“Mass media has its duty to fearlessly but faithfully inform the public about events and persons. However, when a Case has received wide and sensational publicity, the trial court should be doubly careful not only to be fair and impartial but also to give the appearance of complete objectivity in his handling of the case.”

Sections 2 & 3, Canon I provides: “See. 2. In performing judicial duties, judges

shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently. “

“See. 3. Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency.”

A judge has the duty to respect the individual independence of a fellow judge. He should respect the independence of the judiciary as a whole.

Due to the fact that judges share a common profession and personal friendship, closeness will be developed. This is known as compañerismo. In large cities where there are many courts, there may be factions of judges. They gang-up on lawyers who usually file administrative cases against judges. They share notes on similar cases. They accommodate requests by fellow judges relative to decision making and issuances of provisional remedies. These unethical conduct of “I will scratch your back and you scratch mine” is not promotive of judicial independence.

By Judge Manrado Parodes

USJ-R Adelante 5continuation of Judicial Independence P6

students’ corner

Like the T.V. advertisement of Ms. Sharon Cuneta (for a multi-vitamins), “at my age?!?! Back in School!!!” Yes indeed I am back in school! When you are forty something it’s not so often that you’ll hear or see someone to be back in the academe to fulfill his long time dream! While most of my contemporaries experience mid life crisis with their relationships and family, I’m in a trip back memory lane! The nostalgia to be in school is quite exhilarating! Quite a number of emotions and anxiety is felt. For one, the question on how I would mange to immerse with these young individuals, who are eager to learn, just like when I was back in college. True, in law school all of the students are professionals because they have finished their undergraduate studies prior to their enrollment but the question of maturity is a big question mark. Even I, with my age and experience, could not attest nor vouch for my maturity. There is something about the academe that makes one dependent to their professors and the Department. The feeling

that one is behind you is indeed overwhelming because the legal profession is not an ordinary feat that one can pass without the rigors of the study of the law and its impact to society. Law professors for me are people you look up to. (imagine the time and passion they put into teaching, considering their high profile careers)

When I came into my first class, the jitters ran through me, it seemed like I was seated in front of the big screen watching and experiencing my first formal school (in kindergarten!). I was really nervous and my palms were sweating. I could not fathom where my anxiety came from! Is it because of the age gap? This would be so prevalent! Or will I manage to cope up with the younger generation. Another commercial came flashing through, (the commercial of Nescafe were a freshman sees his classmates, schoolmates as aliens!) Good thing when I was inside the classroom, they were not aliens but fresh young looking faces which made me feel more insecure because I know my wrinkles are more visible than

theirs! Oh no! (I should have gone to my derma before going to school!) What bothered me the most was the thought that my classmates might see me as their Big Brother or worst their parents! It’s not that I don’t want to be their Big brother of some sort, but what I have in mind is that I’ll be their best buddy! (which goes beyond age and experience).

As I went along with school, something opened my eyes. First, way back in college, I never studied this hard. Back then, the lessons were easy to comprehend.(no help from caffeine and Have It All) My gray matter is not as it use to be! ( its fallible!) Second, law school is fun. Except for the gout and athritic pains, law school is not all work, or course, it’s not all play either. And lastly, I’ll never regret the day I went back in Law school! The mystery and anxiety still unfolds before me because I am here to fulfill my dream! My friends and I have one goal and dream in mind, to become a lawyer!

Never too late to study Law

In Sabitsana Jr. vs. Villamor, the Supreme Court said that any attempt, whether successful or not, to influence the decision making process of another judge, especially one who is of lower rank on which he exercises supervisory authority, is serious misconduct.

There is no breach of judicial independence, if one judge consults another on purely academic or hypothetical basis, and the judge does not surrender his or her independent decision making (Rule 2, 9(A)(3), ABA Draft Model Code of Judicial Conduct). There is nothing wrong if a judge consults his fellow judges on matters of jurisprudence applicable to a certain set of facts already found by the counseling judge. The findings and conclusions must be made by the judge and the judge alone. It is not proper for a judge to allow the Clerk of Court or researcher or one of the lawyers in a case, to prepare the “decision”. Decision making must be left personally to judge trying the case or to his successor in case of retirement or termination from service.

Section 4, Canon I provides: “Judges shall not allow family, social and

other relationships to influence judicial conduct or judgment The prestige of the judicial office shall not be used or lent to advance the private interest of others, nor convey or permit others to convey the impression that they are in as special position to influence the judge. “

Under the Code of Judicial Conduct and Ethical Standards for Public Officials and Employees (RA 6713) “relatives” refers to any and all persons related to the public officials or employee within the 4th civil degree of consanguinity or affinity, including bilas, inso and balae.

Filipinos value family solidarity or kinship. Mutual respect between members of the family and relatives is observed. These close family and kinship ties should not influence the judge in the discharge of his official function.

We value friendship. A judge may have fraternal ties with classmates, neighbors and civic and political organizations. No judicial favor should be granted despite these fraternal ties. A friend who

asks judicial favor from a judge is not a true friend. Judgments should not be based on friendship but strictly on the facts and the law applicable thereto.

A judge should not live like a hermit. He should not shy away from activities participated in by friends, former law classmates or relatives. For as long as he does not allow himself to be influenced, he should live like any other citizen. He should not only remain impartial. He should be perceived and appear impartial.

Under Sec. 1, Rule 137 of the Revised Rules of Court, a judge may, in the exercise of his sound discretion disqualify himself from sitting in a case for just and valid reasons.

When a judge is related to one of the parties within the 4th degree of consanguinity and affinity, his disqualification is mandatory (Hurtado vs. Judalena, 84 SCRA 41).

The duty of the judge is to render justice not to give out favors to relatives, friends and associates.

Sec. 5, Canon I Provides: “Judges shall not only be free from inappropriate

connections with, and influence by, the executive and legislative branches of government, but must appear to be free therefrom to a reasonable observer.”

It is unfortunate that in the Philippines, some judges are appointed with the assistance of political padrinos and those with political power. It is a reality that the executive and legislative branches interfere in the appointment of judges. Utang na loob comes in. The time of political payback will come when a case involving a padrino will reach the appointee.

The judiciary does not have the power of the purse. There is fiscal autonomy but it is limited.

A local government unit may withhold the release of allowances of judges, if the latter renders correct but unfavorable decisions against cities and municipalities. Allowances are peoples’ money but they are under the administration of governors and mayors. Some judges declined to receive allowance in order to uphold judicial independence. But it does not necessarily follow that if the judge receives an allowance from a local government unit, he is not independent. He can still maintain his independence

by deciding cases strictly on the basis of the established facts and the law.

Section 6 provides: “Judges shall be independent in. relation to

society in general and in relation to the particular parties to a dispute which he has to adjudicate.”

A judge should not discontinue his interest in participating in activities for the good of society. He may support the advancement of the rights of women, children, urban poor, the overseas workers, and the marginalized sectors because their activities will also enhance the rule of law and justice. But then again, he should be neutral in the struggle between stakeholders. He should avoid conflict of interest.

Section 7 and 8 provides: “See. 7: Judges shall encourage and uphold

safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary”

“See. 8. Judges shall exhibit and promote high standards of judicial conduct in order to reinforce confidence in the judiciary which is fundamental to the maintenance of judicial independence. “

“As such, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the Republic to a great extent depends upon our maintenance of justice pure and unsullied (Preamble, Canons of Professional Ethics)

Canon 2, Rule 2.01 of the 1989 Code states: “A judge should so behave at all times so as

to promote public confidence in the integrity and impartiality of the judiciary.”

Public confidence in the judiciary is important. It must be remembered that the judiciary is the last bulwark of democracy. If the people no longer trust the court and will take the law into their own hands, then you can bid democracy goodbye.

continuation of Judicial Independence

by: Roland “Sharon” Lastimosa

USJ-R Adelante6

In the months leading to the bar examination it is not only the bar examinees who prepare for that challenging month, but also a team of students, professors and school administrators who serve as the support group of the examinees - the Bar Operations Team. The bar examination though may be hurdled by the examinee alone is not a challenge he alone faces. The Bar Operations Team of an examinees’ respective law school extends aid to the examinees’ preparation from the start of review until the last day of examination by giving lectures, helping the examinees deal with the pressure, etc. In the University of San Jose-Recolletos, its Bar Operation Team does more than that.

The USJ-R Bar Operations Team represents the collaborated efforts of law students, alumni, faculty, and university administrators in support of the USJ-R bar examinees. By SUPPORT, it means the Bar Operations Team is a group that: Serves with Unrelenting Passion and Perseverance; Organized to Reduce Tension in taking the bar exams. Since USJ-R is an outside Manila, it takes a lot more work to organize its bar operations most especially due to logistical factors. In its preparation, the team coordinates almost all of its plans mostly by phone, fax or email, from hotel reservations to catering and even transportation. Specifically, bar ops functions to:

o Collate effective materials for the use of bar examinees

o Act as primary liaison and channel of communication on bar related matters between the School of Law and its bar examinees.

o Coordinate and organize the pre-bar Sunday review

o Coordinate the housing facility for a centralized venue to have an efficient bar operations

o Provide food for the barristers during the pre-bar Sunday review and for the bar Sunday

o Provide transportation to and from La Salle

o Help ensure that barristers are ready to take the exam within the means available to the Bar Ops.

To provide these services, the students contribute to a sinking fund each school year. Whatever the amount collected is used and prioritized entirely for the services provided by the bar operations to the bar examinees.

USJ-R Bar Ops Faces the Challenge

The serious, non-superficial study of law is an intellectual feast. If one fully takes advantage of the opportunities that a law school presents, the study of law will turn the undergraduate into a sharp logician whose understanding of legal, political, and social relationships seems to border on clairvoyance. The legal education involves acquiring a very intricate and highly specialized set of skills, as well as a vast body of substantive knowledge. In simple words, it’s darn hard.

An average law student will commit approximately 70 hours per week to academics which are spent on attending classes and reading purely textual and voluminous materials. One is bombarded with ideas which are more often than not foreign and imaginary to the student’s young and credulous mind. Apparent adverse physiological reactions occur when trying to learn a subject without the thing actually present or available.

If one is attempting to understand the function and operation of a car or a computer or a solar system, the printed page and spoken word are no substitute for the object itself. It would be extremely difficult to understand how to use a computer for the first time if you did not have the computer there in front of you. In same manner, it would be awfully complex to learn the law when the learner does not personally experience the laws working in his own life. The lack of mass of the object being studied is one of the barriers identified by renowned educators who created breakthroughs in the fields of

by: Atty. Ethelbert B. Ouano

Moot and Academic

study technology.Moot Court is one of the few law school

activities that do more to push law students to engage deeply into law, facts and policy; it affords them such a prominent stage on which to showcase such knowledge with polished precision and dexterity. It entails from practical experience of researching and drafting appellate briefs to be argued before judges and justices with extraordinary audacity. It is a quintessential endeavour to put a mass on the object being studied to break the barrier of apathy over the subject matter due to the absence of the thing itself.

The USJ-R School of Law in fostering excellence in written and oral advocacy first constituted a moot court team on 2005 to represent the school in the 1st National Moot Court Competition for International Humanitarian Law. The USJR team is one of the pioneering IHL mooting team in Cebu and in the Country. The team had reached semi-finals so far and we already had bagged the second best mooter award received by Ms. Lyn Aguelo for the year 2007. Indeed, USJR School of Law team is recognized as one of the better and promising team to look forward to in the future.

Realizing the tremendous opportunities, mooting is now infused in the curriculum of the USJR School of Law. It promises to fill in the voids where conventional instruction is short. It provides occasions for students to experience the law and advocacy by giving them veritable chances to explore possibilities instead to fret and grope about their future.

School of Law updates

The insufficiency of the collected fund is raised by the Bar Operations Team, including the amount needed to fund the actual stay of the team in Manila to conduct the bar operations. Thus, it is in this aspect that the USJ-R Bar Operations Team members are truly volunteers. Most often, the team members are the ones to fund their tickets to and from Manila for the September operations. It is due to this heartfelt dedication and willingness to serve that makes the USJ-R Bar Operations unique.

The USJ-R Bar Operations Team was able to successfully run its bar operations last September 2008. The Team was very fortunate to have been able to create linkages with the student leaders and Centralized Bar Operations of San Sebastian College -Recolletos Institute of Law, USJ-R School of Law’s sister school.

Through the linkages made, the Team was able to run its operations more efficiently.

In the four weekends of flying the different Sunday Teams to Manila, the Bar Operations Team had encountered various problems. Even if most of them were neophytes in bar operations and in Manila, they nevertheless conquered the challenges they faced be it logistics related, multi-tasking or simply dealing with the pressure and the emotional storms brewing amongst the bar examinees. At the end of the day, it is the knowledge gained from the experience and the fulfillment to have been able to aid the bar examinees that rise above all the adversities.

by: Lyn N. Agrelo

USJ-R Adelante 7

The School of Law not only gives importance to the academic aspect of legal education but also places equal importance to the need for the law to be understood, implemented and enforced.

Aside from its school activities like the annual general assembly, acquaintance par ty, mock bar examinations, bar operation and law days, the School of Law has actively participated in National Moot Court Competitions and hosted the 2010 National Qualifying Rounds of the International Jessup Moot Court Competition.

Over the years, the School of Law has actively campaigned for good governance and spearheaded several forums that tackle pressing issues in government. It has invited competent and learned speakers as resource persons. The School of Law has on many occasions, opened the doors for academic discussion, intelligent and fruitful exchange of ideas that helped lawmakers become aware of issues and opinions of the masses and empower

ordinary citizens to speak up.• F O R U M O N H U M A N

SECURITY ACT - T h e passage of the Human Security Act of 2007 was subjected to so much clamor and reservation by many. National and international organizations called for its repeal and the Supreme Court was in fact flooded with cases for the said law to be declared as unconstitutional. The School of Law in cooperation with the Integrated Bar of the Philippines Cebu City Chapter organized a forum with then Senator Rodolfo Biazon as speaker. Members from the media and other interested organization were given the opportunity to present their comments and reaction to the said law.

• F O R U M O N P U B L I C A C C O U N TA B I L I T Y A N D T R A N S P A R E N C Y I N LEGISLATION - I n 2008, the C-5 issue in Philippine Senate erupted. The School of Law took the cudgels in bringing back the trust and confidence of the people

Academic Excellence and Good Governance Through the years by: Atty. Mae Elaine Bathan

USJ-R Adelante8

towards the senate by inviting on two different occasions the famous senators, Manuel Villar and Francisco Chiz Escudero. The forum served as an avenue for the audience to understand the importance of transparency and public accountability in government service.

• FORUM ON THE ROLE OF THE GOVERNMENT AMIDST THE COUNTRY’S STRUGGLE ON GLOBAL ECONOMIC CRISIS - With the continuing decline of the value of the Philippine peso in 2009, the lowering trust rating of then President Gloria Macapagal Arroyo, the USJR School of Law organized a forum that would give the participants a better understanding of the role of government in times of economic crisis and to inform them of programs being prepared to address the worsening financial crisis. The School of Law was honored by the presence of then Senator Loren Legarda.

• FORUM ON BAR REFORMS - The Supreme Cour t of the Philippines will be implementing for the first time the Multiple Choice Type of Examination, Drafting of Legal Memorandum and Legal Opinion in the 2011 Bar Examination. Said changes although a welcome

innovation in the conduct of the bar examination has left the law students and bar reviewees hesitant. The USJR School of Law invited no less than the Chairman of the 2011 Bar Examination, Hon. Associate Justice of the Supreme Court, Roberto Abad to discuss the changes in the bar examination for 2011. The School of Law likewise took the initiative of inviting Supreme Court Bar Confidant Atty. Ma. Christina Layusa to give a talk to the bar reviewees. The forum proved to be more than fruitful as it was attended by law students and bar reviewees coming from different law schools in Cebu.

• PARTNERSHIP WITH ABS-CBN DYAB - T h e S c h o o l of Law continues to partner with ABS-CBN DYAB in hosting various media forum to discuss various laws and legal issues. Recently, it has concluded a very successful Free Legal Aid Clinic at the ABS CBN Complex in Jagobiao, Mandaue City.

All these are but a few of the many other activities the USJ-R School of Law has hosted and spearheaded in its quest to take an active role in nation-building. As the USJ-R School of Law continues to move forward towards academic excellence, it remains true to its commitment to good governance.

by: Atty. Mae Elaine Bathan

USJ-R Adelante 9

The celebration of the International Women’s Month in March was as much a source of inspiration as it was of deep reflection, for me. Its significance is owed not only to the fact that I proudly count myself a member of the gender “from Venus”, but more importantly because now, more than any other time in history, women from all walks of life and from all corners of the globe have so much reason to celebrate.

A fitting acknowledgement of how far we have come requires a recognition of the struggles that women have had to endure and still endure wherever in the world they may be. Children are not immune from these struggles, as well. And in reflecting on the issues of gender and equality, the situation of women and children are certainly of equal importance.

In the recent launching of the Municipal Women’s Commission of the Municipality of Liloan, Cebu, I was asked to give a keynote speech on three things that are very close to my heart - children, women and the law. I addressed parents, young and old, from different sectors of society and from coastal communities to mountain barangays. Albeit I write this article addressing a different audience, I believe that the my reflections at the Women’s Commission launch ring true, as well, to those in the legal community.

Of those that are most taken for granted in our society, it would have to be children. Helpless and innocent as they are, children require the most protection under the law. That is not to say, however, that children are lacking in intelligence or capacity for resilience and apt observation. One child, in particular, provides support to this amazing potential.

On one of those difficult and seemingly never ending days in law school, I called home in Cebu from Manila in the hope of finding comfort from my homesickness and finding answers to the life questions that ailed me at that time. After talking to my brother, he passed the phone on to his then four-year old son, Jules, who calls me his “Manang K”. So I made small talk with this little person and after a while, sensing the sadness in my voice, Jules said, “Are you sad, Manang K?” “Yes, I am, Jules”, I replied. There was a two second silence

between us, after which I heard the most profound words to which I credit my ability to move on from that difficult day and many other difficult days that came after that. Jules, in all his four-year old wisdom said, “Well, that’s life, Manang K.”

As Jules, and I am sure, many other children have proven, we, adults, seem to suffer from the misconception that children know less and are less of people than we are such that they require less protection and attention from society and the law. On the other hand, it is precisely a child’s rare wealth of potential for wisdom, apt observation and resilience that requires our protection so that these qualities can be honed and fully developed. Each child, no matter his or her stature in life, deserves to live in an environment that allows this child to grow into the best person that he or she can be. As parents, we provide such an environment at home, teaching a child the core values of goodness, kindness and strength of spirit that he can carry with him as he goes out into the world. As teachers, we provide such an environment in school, impressing upon a child the right tools so that he can be well-equipped to practice his chosen profession in the future. As citizens, we provide such an environment in our communities, by ensuring that our laws provide protection from child abuse, child labor, harassment and discrimination.

When a child is allowed to flourish in a society where he is loved, respected and given equal treatment, you can be sure that that child will grow up to be a responsible contributing member of his community. I do not presume to know the difficulties and challenges that come with raising children as I have yet to have a child of my own. I can share, however, the experiences of one who was once a child and was allowed to grow up in an environment of love and encouragement.

I have been quite blessed to be surrounded by strong women all my life. To these women I credit the person that I am today. First, there is my grandmother, retired Judge Esperanza Fiel Garcia whom I fondly call my Lola Inday. As her first female grandchild, I was named Esperanza, after my Lola. I have carried my Lola’s name for all of my 27 years, but truth be told, that until now, I still strive and can only hope to live up to the privilege of being named after her.

While in Law school, Lola Inday met my grandfather, Deputy Speaker of the House of Representatives Congressman Pablo Garcia. They wed and went on to have eight children, including my own mother, Governor Gwen Garcia. While struggling to raise a family as a working mother, Lola Inday would give all of her monthly salary to her children as their allowance as she practiced law as a labor lawyer and subsequently, a Clerk of Court of the Court of First Instance in Cebu City. While she was a Clerk of Court, she established the Cebu CFI Community Cooperative with a capitalization of 900 pesos and only 12 members. She would go on to become a multi-awarded Regional Trial Court Judge, widely respected for her integrity and unquestionable reputation. When Lola Inday retired from the Judiciary, her 8 children were already professionals in their chosen fields and it would have been easy for Lola Inday to just take it slow and enjoy retirement bliss. But Lola Inday didn’t exactly stop working. She continued her work with her cooperative and now, in all of her 75 years, she still goes to the office everyday and I am proud to say that the Cebu CFI Community Cooperative is over 37,000 members strong with a capitalization of over 1.8 billion pesos.

When I took my oath as a lawyer before the Supreme Court in 2007, Lola Inday was there with me. She could hardly hold back her tears during my oath as she would later on tell me that exactly fifty years ago to the day that I took my oath, she too, had taken her Lawyer’s Oath before the Supreme Court. And fifty years ago, she would not have expected that she would live to see another Esperanza Garcia take her oath as a lawyer.

I share my Lola’s story because I think that her life and her life’s work evinces the possibility of having multiple roles as a woman while successfully striking a balance between family, career and community work. For a long time, women have been reduced to the stereotype that once they bear children, they have to just stay at home, cook, clean and wash the dishes. As a woman, I am proud to say that we have successfully shattered that age-old stereotype.

By Atty Ma. Esperanza Christina Garcia Codilla-Frasco

A Reason to Celebrate

USJ-R Adelante10

W e

n o w h a v e a multitude of women leaders

in government, commerce and civil society, women in the military, a multitude of women doctors, lawyers, and other professionals; and even stay at home mothers have now strengthened their financial independence by having businesses of their own from carenderias, to small and medium enterprises to multi-million peso companies. Indeed, women are redefining societal norms and dominating fields, which, in the past, were the exclusive domain of men.

I can think of no other person who best epitomizes the growing role of women in society than my own mother, the first woman governor of the Province of Cebu, Governor Gwen Garcia. A multitude of people know of her projects and her accomplishments and have enjoyed the benefits of her dedication to, and passion for, her work. But what most people do not know is that before she became governor, my mom actually wanted to become a lawyer. However, as she finished her first year of law school in the College of Law at the University of the Philippines - Diliman, fate and circumstances intervened which led her to run for governor in 2004. In 2002, I started my own journey towards becoming a lawyer. Although hers was a dream that did not come into fruition, my mom never pressured me into accomplishing her dream for her. Instead, she encouraged me to find, on my own, the desire to become a lawyer; and once I found that desire, she gave her unwavering support as I suffered and enjoyed the trials and travails of law school. Whenever I felt like giving up, hers was the voice in my head telling me to fight the good fight for one more day. As I prepared to wage the biggest battle of my life - the bar examinations - my mom was there to remind me of the worthiness of my struggle and even went so far as flying to Manila on the Bar Exam weekends to take me out to nice dinners and to take me shopping to forget my Bar

Exam woes. Back then as she is now, my mom has been my role model for resilience, independence and excellence. As I grow into my profession as a lawyer and as a professor of law, I have tried to carve out my own path and develop my own voice; and as I do that, I continue to derive lessons from my mom as an independent woman ready to take on the world and all its challenges.

Facing challenges as a woman is not unfamiliar to me. Like many women in our society, I, too, have been the victim of violence. I have rarely spoken publicly of this experience except to give my comments in news items. But I feel that it is right to finally speak out in furtherance of the objective of the International Month of Women, which is to empower women through education of their rights and remedies under the law. As I struggled to find my bearings after I was punched without provocation at the Ninoy Aquino International Airport Terminal 2 in Manila almost a year ago, I made a decision, right at that moment, to fight back. And no, it was not a fight of the physical kind, to which I was unfortunately subjected. Rather, it was the kind of fight where I availed of remedies, which I was rightfully entitled to under the law. I filed criminal, civil and deportation cases against the man who punched me; and although I cannot speak of these cases at length, let me just say that the experience has taught me that as a woman, I am not so helpless in the face of violence and discrimination. I have since agreed to an out-of-court settlement of the case, which gave me an opportunity to not only finally close that tumultuous chapter of my life, but most importantly, to donate all of the proceeds of the settlement to groups advocating and supporting women’s and children’s rights, such as the International Justice Mission, which provides legal assistance to victims of trafficking, the Cebu Provincial Women’s Commission, the Liloan Municipal Women’s Commission and Operation Smile, which provides free corrective surgery to children with cleft palettes.

The law is available to women and children for our protection in any situation of violence, harassment or discrimination, which we may find ourselves in. Aside from the Revised Penal Code and the Civil Code, we have specialized laws such as the Anti-Violence against Women and their

Children Act of 2004, Republic Act No. 9208 or the Law Against Trafficking; the Anti-Rape Law of 1997; the Anti-Sexual Harassment Act; the Child and Youth Welfare Code; and the Children’s Code of Cebu. As a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, the Philippines has also taken great efforts to make our laws consistent with the objective of protecting the rights of women and children.

Indeed, the Philippines has come a long way in terms of the protection and promotion of the rights of women and children. To our lawmakers and women and children advocates, we owe our thanks for keeping the flame of hope alive for women and children all over as they remind us that we need not suffer in silence and cower in fear; that we can and should speak out against any and all forms of violence, harassment and discrimination; and that the law, our justice system, our community will listen.

Wherever they are and whatever their status in life, women’s struggles are rooted in the same things - discrimination and stereotyping. However, more than a shared struggle is a common bond that makes women the exceptional beings that they are - that is, the inner strength to bear the unbearable, the forgive the unforgivable and to love the unlovable. Being a woman is not only a privilege but also a responsibility to rise up to the occasion as we are called to be career women, mothers, grandmothers, movers and leaders in our communities. And it is incumbent upon each and every one of us to take on these roles, to foster a safe environment for our children that is conducive to growth, and to impart upon them examples of a life worthy of emulation.

Email your comments to the author at christina.garciacodilla@gmail.com.

USJ-R Adelante 11

The mother of credit card contracts is the complexity of life in modern society. Life is supposed to be simple; yet in modern society, life becomes a puzzle by the demands of consumerism, a predominant ideology and religion of today. Human beings are no longer simply human beings; they are now “consumers.” In modern society, the dignity of a human being is measured by a person’s power to buy and to pay: the power to create and multiply desires for material things and/or services vis-à-vis the power to quickly satisfy these cravings.

In a world inhabited by “consumers”, hence, economic freedom reigns supreme; it is the picture of our society’s new idea of salvation; and credit card companies - who allow people the greater power to create and multiply grander desires to buy as well as to quickly satisfy these desires - exist as the modern-day redeemers. For the “dream world” and “dream life” for sale to the general public and craftily built by the advertising business, credit card companies - to bring people “closer” to their dreams - have come to play indispensable roles.

The benefits of credit card contracts, therefore, speak for themselves; but the price to pay for these contracts, on the other hand, still begs to be understood.

No doubt the invention of the credit card contract is a stroke of genius: a surprising mutation of the civil law concepts of the special contracts of loan, sale, agency, and guaranty or surety and a very interesting application of the fundamental concepts in obligations such as suspensive and resolutory conditions, solidary and joint obligations, obligations with a penal clause, and the different ideas of novation, payment and/or extinguishment of obligations. One cannot help but catch himself in awe! In one transaction three parties become immediately related to one another as buyer, seller, borrower, lender, guarantor, surety, principal, beneficiary and agent as if by magic!

Hence the story of ordinary credit card contracts: The credit-card-holder purchases a product or a service from an establishment who will be the seller. The credit-card-holder does not pay in cash but in credit, borrowing money from his seller, who agrees to be paid in credit because of the assurance/guaranty/surety given by the credit-card-company. In the same transaction, the credit-card-holder becomes a de facto agent of the credit-card-

company with the special power to create an obligation against the credit card company in favor of an establishment, the seller, a special power that must even be covered by a Special Power of Attorney under Article 1878 of the Civil Code.

The amazing web of relationships, juridical ties and contracts created by one simple impulse - the swiping of an electronic card - is a testament to the trust modern society has reposed on this modern civil law invention: the credit card system. Because of credit card contracts, global commerce has been contained and simplified akin to transactions held only in one global village. Yet what is the price to pay for credit card contracts?

Like all juridical tie inventions, credit card contracts must be allowed to evolve - like an organism - to better serve society. The key is to examine the fairness of credit card contracts in terms of the manner of their birth, life, consummation, and death vis-à-vis the timeless civil law concepts of the obligatory force, mutuality, and relativity of contracts, among others. For a contract to be a valid law between the parties, indeed, it must follow certain standards; for otherwise, contracts would not be a tool for the peaceful exercise and commitment of freedom; but a tool for injustice and oppression.

Under Article 1315 of the Civil Code, contracts are perfected by mere consent. Credit card contracts, in its modern form, however, test this civil law principle to the maximum. Today’s credit card companies compete hard for clients and many of them simply issue credit cards from random lists of potentially good clients, even absent signed credit card applications or actual credit contracts. Sometimes credit card companies just send credit cards to the offices of prospective clients without an idea if the addressee indeed continued to hold office there or if the addressee held any interest to be their client. Are credit card contracts, perfected in this manner, considered valid?

Under Article 1308 of the Civil Code, the validity of a credit card contract cannot be left merely to one party, or merely to the will of a credit card company. Therefore, for a credit card contract to be valid, the claimed contract must be supported by true evidence of consent on the part of the prospective client also. The dorsal part of credit cards usually contain this stipulation, “By signing or using this card the holder agrees to be bound by BPI Express Credit Terms & Conditions and all future amendments thereto.”

With this provision, it can be seen that, for their validity, some credit card contracts rely

not on express consent, but on implied consent, and also on the quasi-contract of solutio indebiti, whereby one party is not allowed to unjustly enrich himself or benefit herself at the expense of another. Upon a person’s actual use of a credit card, a credit card contract is deemed perfected between him and the credit card company, as well as between the credit card company and the establishment he patronized. In some instances, however, the credit card companies never meet face to face with their clients, and are only in touch with the client’s data-base.

What happens in instances when the clients never did enjoy or benefit from a credit card contract, and a stranger benefits from credit cards without the intended clients’ consent or knowledge? These contracts would certainly be void for the absence of the essential requisite of consent. But what happens when an obligation becomes outstanding against an intended client (by virtue of the wrong use of a stranger who received the instant credit card mailed) and the credit card company starts to impose penalties, calls up his employers, and puts his name under blacklist for credit investigation bureaus? The ease of giving birth to credit card contracts between known companies and anonymous clients, therefore, has a price to pay in the form of this risk.

In these instances, the clients may seek recourse from Republic Act No. 8484, the Civil Code, and jurisprudence to hold credit card companies accountable for negligence. In the case of American Express International, Inc. vs. Intermediate Appellate Court, G.R. No. 70766, November 9, 1988, the Supreme Court held that while American Express was not in bad faith, its negligence caused the client to suffer mental anguish, serious anxiety, embarrassment and humiliation, for which the client was entitled to recover reasonable moral damages under Article 2217 of the Civil Code. In another case, BPI Express Card Corporation vs. Eddie C. Olalia, G.R. No. 131086, December 14, 2001, the Supreme Court held that the cardholder should not be held liable for the purchases made by a stranger under the so-called extension card irregularly issued by BPI Express Card Corporation and used for purchases made by an unauthorized party for whose actions the cardholder should not be legally made answerable.

People need to shake hands for the birth of contracts. Another problem with credit card contracts in our modern times is that clients, credit card companies, and establishments

The Price of Expanded Economic FreedomCredit Card Contracts:

By Atty Jennoh H. Tequillo

USJ-R Adelante12

at many times do not get to shake hands on many major issues: on the amount of interest, penalties, and termination/rescission of the credit card contracts, among others. In the special contract of simple loan or mutuum (borrowing money or other fungibles) under the Civil Code, for instance, to establish the obligation to pay interest, it is not enough for the lender and borrower to merely shake hands. Under Article 1956 of the Civil Code, no interest shall be due unless it has been expressly stipulated in writing. Under Article 1959 of the Civil Code, moreover, interest due and unpaid shall not earn interest absent an express stipulation between the lender and borrower to capitalize the interest due and unpaid. Most of the time, however, a client enters into a credit card contract substantially blind as to its actual terms and conditions, and completely blind to the intended amendments to these terms and conditions, which intentions are bared only in the hearts and minds of the credit card companies.

When a party perfects a credit card agreement blindfolded while the other party negotiates with perfect sight, would it be fair and just, for that contract to be considered valid under the Civil Code?

In the case of Rodelo G. Polotan, Sr., vs. Court of Appeals, et. al., G.R. No. 119379, September 25, 1998, a cardholder - after making use of credit card contracts to purchase and pay for services - questioned the validity credit card contracts for their tendency to be one-sided (to be signed on a take-it-or-leave-it basis) and potestative (the efficacy of some obligations tending to be dependent solely on the will of the credit card company). In response to the issues submitted for resolution, the Supreme Court affirmed the validity of credit card contracts, as a valid contract of adhesion. In doing so, the Supreme Court held: “A contract of adhesion is one in which one of the contracting parties imposes a ready-made form of contract which the other party may accept or reject, but cannot modify. One party prepares the stipulation in the contract, while the other party merely affixes his signature or his “adhesion” thereto, giving no room for negotiation and depriving the latter of the opportunity to bargain on equal footing. Nevertheless, these types of contracts have been declared as binding as ordinary contracts, the reason being that the party who adheres to the contract is free to reject it entirely.” Contracts of adhesion only become void, the Supreme Court said, when they violate the nature of contracts as the law between the parties and the principle

of the mutuality of contracts. In this case, the Supreme Court also upheld the escalation clauses stipulated even when they appeared to be potestative, since these clauses were not really potestative. For their birth, the obligation to pay higher interest rates did not depend solely on the will of the credit card company but on the fluctuation of market rates, which is beyond the control of Security Diners International Corporation.

To regulate credit card contracts, the Legislature also issued Republic Act No. 8484, otherwise known as The Access Devices Regulation Act of 1998, directing under Section 4 thereof that, “Any application to open a credit card account for any person under an open-end credit plan or a solicitation to open such an account, either by mail, telephone or other means, shall disclose in writing or orally, as the case may be, the following information: annual percentage rate, annual and other fees, any annual fee, other periodic fee, or membership fee imposed for the issuance or availability of a credit card, including any account maintenance fee or any other charge imposed based on activity or inactivity for the account during the billing cycle, balance calculation method, cash advance fee, over-the-limit-fee, and others, under pains of criminal and administrative sanctions.

In another case, Crisostomo Alcaraz vs. Court of Appeals, et al., G.R. No. 152202, July 28, 2006, credit card companies come face to face with a formidable challenge to the validity of the interest and penal clauses stipulated in credit card contracts. In this case, the Supreme Court exonerated a pre-screened cardholder - who did not sign the standard application form - from any liability on the interests and charges provided under the Terms and Conditions of the credit card contract. The Court held the cardholder liable only for legal interest at 12% per annum. Reasoning out, the Supreme Court held that the cardholder should not be condemned to pay the interests and charges provided in the Terms and Conditions on the mere claim of the credit card company without any proof of the cardholder’s conformity and acceptance of the stipulations contained therein. In this case, the Supreme Court also held that the stipulation printed at the back of the credit card at issue fell short of validating the intended stipulation on interest and penalties imposed by the credit card company, since such stipulation is not sufficient to bind the cardholder to the Terms and Conditions without a clear showing that the cardholder was aware of and consented to the

provisions of the credit card contract. Since the provisions of the Terms and Conditions were held inapplicable to cardholder, therefore, the Supreme Court applied the legal interest on obligations consisting of loan or forbearance of money.

Looking at the Alcaraz doctrine, one can only see the hundreds of thousands of credit card contracts imposing interest and penalties not stipulated and signed in writing by the parties and in danger of being declared void from the very beginning. This case serves as a strong caveat to credit card companies who hasten to perfect credit card contracts merely by implied consent by mailing credit cards to prospective clients. It also serves as a caveat to credit card holders. If they know not or consent not to the interest and penalties imposed by the credit card companies, they should not perfect these contracts by paying them, as it would create an unwitting contract by estoppel and default.

In its present state, therefore, a secret has to be revealed about credit card contracts: they do not provide a redoubtable source of rights or protection for credit card companies, especially when their birth is not supported by the categorical written consent of their client but merely by an unwritten implied consent, arising from estoppels in pais or the quasi contract of solutio indebiti. In terms of giving birth to a contract, therefore, implied consent has its limits. The party accusing another party of having given an implied consent to a contract must submit factual proof that the other party did possess actual personal knowledge as to the substance of the object his consent; for otherwise, his implied consent stands to mean nothing. Undoubtedly, the genius of credit card contracts carries a heavy price even also against credit card companies.

Several Supreme Court doctrines in fact reveal fatal chinks in the armor of credit card contracts, insofar as credit card companies are concerned.

In the case of Emmanuel B. Aznar vs. Citibank, N.A. (Phil.), G.R. No. 164273, March 28, 2007, for instance, to protect itself from liability, Citibank sought sanctuary from a stipulation in the credit card contract between Citibank and Mr. Aznar, which stated, “[Citibank is] not responsible if the Card is not honored by any merchant affiliate for any reason . . . “ Citibank also sought

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protection from the blanket stipulation limiting Citibank’s liability to only P1,000.00 or whatever is proven to be the actual damage suffered by the credit card holder. The Supreme Court pierced through these contractual provisions and held them to be null and void. The Supreme Court held that contracts between cardholders and the credit card companies are contracts of adhesion, since their terms are prepared by only one party while the other merely affixes his signature signifying his adhesion thereto. The Supreme Court also held it to be incorrect to give a credit card company blanket freedom from liability if its card is dishonored by any merchant affiliate for any reason, since the provision tended to be ambiguous, and in a contract of adhesion, any ambiguity must be construed against the party who prepared the contract. Finally, the Supreme Court held the stipulation limiting a credit card company’s liability is invalid for being unconscionable, in the measure that the provision precludes payment of a larger amount even though damage may be clearly proven. The Supreme Court held that it is in no way precluded from ruling out blind adherence to the terms of a contract if the attendant facts and circumstances show that they should be ignored for being obviously too one-sided.

In an earlier case, Manuelita C. Ermitaño vs. Court of Appeals, G.R. No. 127246, April 21, 1999, an extension cardholder lost her card to a thief and immediately informed BPI Express Card Corp., by phone and by letter, of the loss instructing them not to honor the card anymore. Notwithstanding the notice, BPI continued the card and billed the purchases of the thief to the credit card holder, relying on the stipulation that unless BPI has notified all its member establishments, the credit card holder will still be liable for all purchases made using the lost credit card. The Supreme Court pierced through this provision, holding that prompt notice by the cardholder to the credit card company of the loss or theft of his card should be enough to relieve the former of any liability occasioned by the unauthorized use of his lost or stolen card. The Supreme Court held that the cardholder cannot be put at the mercy of the credit card company which may delay indefinitely the notification of its members to minimize if not to eliminate the possibility of incurring any loss from unauthorized purchases. Simply put, the Supreme Court held the provision to be unfair and unjust.

Even the manner of terminating a credit card contract has to pass through the tests of mutuality, valid consent and good faith. To give birth to a contract, knowledge and consent play a critical role. To suspend or extinguish a contract, consent and knowledge also matter substantively. In the case of Bankard, Inc. vs. Antonio Novak Feliciano, G.R. No. 141761, July 28, 2006, Bankard attempted to temporarily

I used to think that “good governance” was dull concept that had little basis in the daily practicalities of running a business - and when taken in reference to the practice (or non-practice) of Government in the Philippines, a Quixotic impossibility. The French saying “The more things change, the more things stay the same” rings true in the Philippines - except for the part about “change”. Change, when and if there is any, is slow. Too slow for the 43,000,000 Filipinos who earn less than or between Php 120.00 to Php 200.00 a day. For them, nothing changes and everything stays the same.

The bottom line of good governance is not just about achieving competitiveness, increasing investment and employment, and reducing corruption and incompetence in government and in business (these are all the results of the practice of good governance). The bottom line is in allowing the natural effects of good governance to trickle down into the largest possible cross section of the Philippine population - to reduce hunger, poverty and achieve true economic development. Business schools have a definition for “insanity” that I enjoy: Doing the same things over and over again, and expecting a different result. To rise out of the stagnation that the Philippines has “enjoyed” for the last 35 years, there must be change: change in the practice of politics and business - from the politics and business of destructive self-interest to that of competence, transparency, integrity, and hope.

Dr. Jesus Estanislao, the most significant proponent of good governance in the country today, recently said at a gathering of businessmen

in Cebu, “The Filipinos are a great people, but unfortunately led by poor leaders. And this is why we are where we are today - almost at the bottom of the global barrel, from the 2nd most successful country in Asia, to one of its worst”. Unfortunately in our country’s current situation, in our flawed practice of democracy, we will no choice but to “take the carabao by the horns” and push our leaders into good governance. For if good governance is to succeed, competent, transparent, and honest leadership - and an active civil society - are requisites.

Good governance is not an unaffordable luxury. Nor is it just a theoretical concept best paid lip service to in the classroom, boardroom or in the halls of government. It is a practical necessity, immediately actionable, with effects that are clearly quantifiable. Good governance is an opportunity at our fingertips - but it will need to be grasped and worked with driving determination and passion if necessary changes are to be achieved.

We do not have the luxury of time. There are simply too many hungry Filipinos, and too many Filipinos in broken families whose parents have no option but to forego the nurturing of their children to work overseas to escape poverty. We are in a desperate cycle of poverty - which I liken to a virus-like syndrome than runs beyond the lack of the material, but deep into the essential psyche of Filipino society. This endemic “poverty of the mind” is not just found in the poorest of Filipinos. It is found at all levels of our society.

The Case for Good Governanceby Dondi Joseph, Filipino Businessman

terminate the credit card contract of one of their clients, Mr. Feliciano. Mr. Feliciano, however, continued to use his credit card, and he got embarrassed after an establishment refused him. The Supreme Court held Bankard liable holding that, credit card companies should be protective of genuine uses of credit cards by the true cardholders. The Supreme Court held that considering the widespread use of access devices in commercial and other transactions, issuers of credit cards should not only guard against fraudulent uses of credit cards but should also be protective of genuine uses thereof by the true cardholders. In this case, the suspension made by Bankard lacked any contractual, factual or legal bases. Credit card companies, in essence, hold no power to unilaterally cancel credit card contracts absent any grounds whether in fact, contract, or law.

As a juridical invention, credit card contracts are a work of genius indeed. The oldest

civilists and jurists of our race (who date back to the time when contracts and covenants were first invented) would surely find themselves in awe at this modern invention. Yet what is the price for this work of genius? Like true gold the concept of credit card contracts must pass through the test of fire. Society has to intensely use these contracts and bravely ask questions. Society also has to go back to the timeless civil law concepts of the obligatory force, mutuality, and relativity of contracts, among others, to test the justice borne by credit card contracts. The legal scholars of our time must finally keep awake and keep their vigil. The form of contracts can be changed; but the timeless principles to test the birth, life, justice, and death of contracts: they must be protected.

J.H. TequilloApril 22, 2009

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REVISITINGEDSAESDA People Power brought

hope to Filipinos and to the rest of the people around the world. We have been an epitome of hope and change to citizens who wish to regain control over the destiny of their country without bloodshed. The world was stunned and encouraged by the Filipinos’ will to regain their democracy. EDSA became our legacy to the world. But that was twenty five (25) years ago.

Today, the dream to regain full and genuine democratic freedom has turned into a morphing nightmare and we seem to be waxing nostalgia about those dark years all over again.

D e s p i t e t h e c h a n g e o f administration, the government has not been spared of issues, controversies even shameful scandals showing corruption, bureaucracy and

incompetence of people in government service. Criminality remains to be at its all time high. Armed conflicts continue to displace innocent civilians while millions of Filipinos have gone abroad in search for greener pastures.

Twenty five years after EDSA we remain to be in bondage of poverty and corruption. EDSA Revolution did not end when we gained back our freedom and democracy, it remains to be a continuing revolution to free the country from the scourges of poverty and corruption. But people power this time will not be enough. The people

themselves have to be empowered. Here lies the challenge.

Editorial

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