JURIST - Paper Chase: UK House of Commons approves same-sex marriage bill

see - JURIST - Paper Chase: UK House of Commons approves same-sex marriage bill


"x x x.

[JURIST] The House of Commons of the UK Parliament [official websites] voted 366-161 on Tuesday to approve the Marriage (Same Sex Couples) Bill [HC Bill 3]. The legislation was introduced in January [JURIST report] and will effectively extend the application of the Marriage Act of 1949 [materials] to same-sex as well as opposite-sex couples. The bill allows for an exception for any religious institutions that do not wish to perform same-sex weddings. Same-sex couples in England and Wales have been permitted to enter into civil partnerships since 2005 [BBC report], which has allowed them to receive many of the same legal rights as married opposite-sex couples. Prime Minister David Cameron [official website], who also serves as the Leader of the Conservative Party [official website], strongly supports the bill. His support has created tension [JURIST report] within the Conservative Party. The bill will next proceed to the House of Lords [official website] for final approval.

Same-sex marriage [JURIST backgrounder] continues to be a controversial issue internationally. France legalized [JURIST report] same-sex marriage last week. Earlier this month Brazil effectively legalized [JURIST report] same-sex marriage in a court ruling that prevented notaries from denying to perform ceremonies for same-sex couples. Also this month same-sex marriage legislation was approved in the US states ofMinnesota, Delaware and Rhode Island [JURIST reports]. Last month Ireland announced it would hold a referendum [JURIST report] on same-sex marriage. In March, the US Supreme Court heard oral arguments in two same-sex marriage cases regarding the Section 3 of the Defense of Marriage Act and Proposition 8 [JURIST reports], with decisions expected next month.

x x x."

JURIST - Paper Chase: Senate Judiciary Committee approves immigration reform bill

see - JURIST - Paper Chase: Senate Judiciary Committee approves immigration reform bill


"x x x.

[JURIST] The Senate Judiciary Committee [official website] on Tuesday approved S. 744 [text], an immigration reform bill. The bill, entitled the Border Security, Economic Opportunity, and Immigration Modernization Act, is intended to help create a 13-year path to citizenship for the approximately 11 million current undocumented immigrants, contingent upon strengthening security along the Mexican border. The bill also proposed an improved process for allowing high-skilled immigrants into the country's workforce. After a five-day deliberation, the bill passed by a vote of 13-5. The 13 who voted in favor of the bill consisted of 3 Republicans and 10 Democrats. The full Senate will consider the bill next month.

Immigration [JURIST backgrounder] has become a hot button issue in the US. Tuesday's bill is the result of a bipartisan group of eight senators, including Senators Chuck Schumer, John McCain, Dick Durbin, Robert Menendez and Marco Rubio [official websites], who in January released[JURIST report] a framework [text, PDF] of comprehensive immigration reform legislation. The individual senators involved in building the framework released several statements on what they hoped the legislation will achieve. McCain focused on border security [press release], stating that "greater focus needs to be paid to drug traffickers and criminals that cross the border." He also compared the framework to failed legislation [FAQ text] that was put forward in 2007, and issued more details about the plan, including that funding for some aspects of the program will come from "fees collected from immigrant workers—both new guest workers and the previously undocumented." These funds, said McCain, were intended to be used for "registering the undocumented, processing visas and other applications, enhancing enforcement and providing English and civics education to immigrants."

x x x."

Presumption of innocence; good faith as a defense - sc.judiciary.gov.ph/jurisprudence/2013/april2013/186739-960.pdf

see - sc.judiciary.gov.ph/jurisprudence/2013/april2013/186739-960.pdf


"x x x.


First, it is settled that an accused in a criminal case is presumed
innocent until the contrary is proved and that to overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution.36 As held by this Court in People v. Sitco:
37

The imperative of proof beyond reasonable doubt has a vital role in our criminal justice system, the accused, during a criminal prosecution,
having a stake interest of immense importance, both because of the
possibility that he may lose his freedom if convicted and because of the
certainty that his conviction will leave a permanent stain on his reputation
and name. (Emphasis supplied.)

Citing Rabanal v. People,38 the Court further explained:

Law and jurisprudence demand proof beyond reasonable doubt before any person may be deprived of his life, liberty, or even property. Enshrined in the Bill of Rights is the right of the petitioner to be presumed innocent until the contrary is proved, and to overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution. The constitutional presumption of innocence requires courts to take “a more than casual consideration” of every circumstance of doubt proving the innocence of petitioner. (Emphasis added.)


Verily, an accused is entitled to an acquittal unless his or her guilt is shown beyond reasonable doubt and it is the primordial duty of the
prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion, with moral certainty.39

As explained by this Court in People v. Berroya:40

The necessity for proof beyond reasonable doubt lies in the fact that “(i)n a criminal prosecution, the State is arrayed against the subject; it enters the contest with a prior inculpatory finding in its hands; with unlimited means of command; with counsel usually of authority and capacity, who are regarded as public officers, and therefore as speaking semi-judicially, and with an attitude of tranquil majesty often in striking contrast to that of defendant engaged in a perturbed and distracting struggle for liberty if not for life. These inequalities of position, the law strives to meet by the rule that there is to be no conviction when there is a reasonable doubt of guilt.”
Indeed, proof beyond reasonable doubt does not mean such a degree
of proof, excluding possibility of error, produces absolute certainty; moral
certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.41 However, contrary to the ruling of the Sandiganbayan, We find that a careful scrutiny of the events surrounding this case failed to prove that Ruzol is guilty beyond reasonable doubt of committing the crime of usurpation of official functions of the DENR.

We note that this case of usurpation against Ruzol rests principally on
the prosecution’s theory that the DENR is the only government
instrumentality that can issue the permits to transport salvaged forest
products. The prosecution asserted that Ruzol usurped the official functions that properly belong to the DENR.

But erstwhile discussed at length, the DENR is not the sole government agency vested with the authority to issue permits relevant to the transportation of salvaged forest products, considering that, pursuant to the general welfare clause, LGUs may also exercise such authority. Also, as can be gleaned from the records, the permits to transport were meant to
complement and not to replace the Wood Recovery Permit issued by the
DENR. In effect, Ruzol required the issuance of the subject permits under
his authority as municipal mayor and independently of the official functions granted to the DENR. The records are likewise bereft of any showing that Ruzol made representations or false pretenses that said permits could be used in lieu of, or at the least as an excuse not to obtain, the Wood Recovery Permit from the DENR.

x  x x."

A QUICK GUIDE TO ORAL ARGUMENTS

see - A QUICK GUIDE TO ORAL ARGUMENTS

"x x x.

Under the Revised Rules of Court, when allowed at its own instance or upon motion of a party, the Court may hear the parties in oral argument on the merits of a case, or on any material incident in connection therewith. The argument, however, shall be limited to such matters as the Court may specify in its order or resolution. And unless authorized by the court, only one counsel may argue for a party. The duration allowed for each party, the sequence of the argumentation, and all other related matters shall be as directed by the court. Likewise, motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral argument shall be allowed in support thereof.

In the first two cases in 2013 to be heard on oral argument, the Court gave counsels for each side different time periods to present their arguments. The difference, however, could be attributed to the circumstances of each case.

In Jose Jesus M. Disini, et al. v. The Secretary of Justice, et al. and companion cases, G.R. No. 203335 and companion cases, the Court considered fifteen separate petitions challenging the same statute, Republic Act No. 10175 (An Act Defining Cybercrime, Providing For The Prevention, Investigation, Suppression And The Imposition Of Penalties Therefor And For Other Purposes) and allowed only five counsels to argue specific issues previously defined by the Court, allotting ten minutes to each counsel, exclusive of interpellation by the Court. 

In Diocese of Bacolod v. COMELEC, G.R. No. 205728, the Court gave the counsel only twenty minutes to present arguments, exclusive of interpellation by the Court. In both cases, the Court gave the Solicitor General, as counsel for the government, the same amount of time provided to the petitioners to present argument.

Rule 10, Section 3 of The Internal Rules of the Supreme Court further states that “The Court may hear any case on oral argument upon defined issues. The petitioner shall argue first, followed by the respondent and the amicus curiae, if any. Rebuttal arguments may be allowed by the Chief Justice or the Chairperson. If necessary, the Court may invite amicus curiae.” An amicus curiae, literally “friend of the court”, is a person recognized by the Court as an expert on a particular point of law that the Court may choose to invite to provide additional perspectives to the Court.

In 2004, the Court invited three amici curiae to its oral arguments on three petitions (G. R. Nos. 161434, 161634, and 161824) that sought the disqualification of respondent movie actor Ronald Allan Kelley Poe, popularly known as Fernando Poe, Jr., from the presidential race on the ground that he was not a natural-born Filipino citizen. The Court eventually ruled that Poe was a natural-born Filipino citizen.  

Section 4 of the same Rule states that: “Oral arguments shall be recorded by at least two stenographers, alternately taking stenographic notes of the proceedings. The stenographers shall transcribe their notes and submit the consolidated transcripts to the Clerk of Court or the Division Clerk of Court within twenty-four hours from the termination of the oral arguments. The Clerk of Court or the Division Clerk of Court shall review the transcripts of stenographic notes, using the tape or electronic recording of the hearing for verification purposes.”

Oral arguments in the Philippine Supreme Court are held at the En Banc Session Hall located on the second floor of the SC Main Building along Padre Faura Street, Ermita, Manila and the Session Hall of the SC Baguio Building during its Summer Sessions. They are open to the public but seating is limited and on a first-come, first-seated basis.

Starting in 2013, the Public Information Office has uploaded the complete audio recording of the oral arguments to the Supreme Court webpage to allow the public a more complete understanding of the questions posed and answers given during each case. For the complete audio recording of the oral argument in the Cybercrime case, click http://sc.judiciary.gov.ph/features/oral_arguments/cybercrime/; for a complete audio recording of the oral argument in the “Team Patay/Team Buhay” case, click http://sc.judiciary.gov.ph/features/teampataybuhay/.

x x x."

1ST DRAFT OF THE REVISED RULES OF CIVIL PROCEDURE 2013 - sc.judiciary.gov.ph/features/civil_procedure/firstdraft.pdf

SEE - sc.judiciary.gov.ph/features/civil_procedure/firstdraft.pdf


CLICK THE LINK ABOVE TO READ THE "FIRST DRAFT OF THE REVISED RULES OF CIVIL PROCEDURE 2013", WHICH IS NOW UNDERGOING PUBLIC CONSULTATIONS NATIONWIDE.

Rev. Rules of Civil Procedure; 1st draft; for public consultations. - www.lawphil.net/courts/rules/drafts/ANNOUNCEMENT.pdf

see - www.lawphil.net/courts/rules/drafts/ANNOUNCEMENT.pdf

"x x x.


After carefully evaluating and incorporating all the input, the Committee is publishing the First Draft of the Revised Rules of Civil Procedure for public comment. The First Draft rules is available online at various websites. To obtain a copy of the draft rules, go to the Supreme Court website at www.sc.judiciary.gov.ph. You can directly request a copy by e-mailing newcivpro@gmail.com and a soft copy in a portable document format (PDF) will be sent to your e-mail.

In line with this, the Committee, together with the Philippine Judicial Academy, UPLC and the IBP, will conduct three public consultations or stakeholders’ dialogues on the following dates and venues:

a) May 28, 2013, Tuesday, 8:00 a.m. at the Cebu Grand Ballroom, Marco Polo Hotel, Cebu City;
b) May 31, 2013, Friday, 8:00 a.m. at the Grand Aguila Ballroom, Waterfront Insular Hotel, Davao City; and
c) June 3, 2013, Monday, 8:00 a.m. at Ateneo Law School, Rockwell Center, Makati.

This activity will provide an opportunity for the stakeholders to raise their issues and concerns with the First Draft and to provide additional comments and suggestions in preparation for the Second Draft due to be presented during the National Conference scheduled in June. Only a limited number of participants could be admitted to the venue. To reserve a slot, you can text your Full Name, Roll of Attorneys Number, contact number, e-mail address, selected stakeholders’ venue to 09398264424 or call (+632) 5217241 or (+632) 5266189 and look for Atty. Katlyn Anne Aguilar or Atty. Al Conrad Espaldon. Those who will not be able to
attend the dialogues may send their comments to newcivpro@gmail.com.

x x x."

Arbitration clause; when unenforceable

"x x x. The Washington Supreme Court—in Gandee v. LDL Freedom Enterprises, Inc., 176 Wn.2d 598 (2013)—recently examined the validity and enforceability of a contractual arbitration provision and found, under the circumstances, that the clause was “unconscionable” and therefore unenforceable. Although the case did not occur within a construction setting, it nevertheless presents important lessons to consider when drafting, negotiating or complying with mandatory arbitration provisions in construction agreements. In Gandee, a borrower, under a debt adjustment contract, brought suit against LDL Freedom Enterprises, Inc. (“Freedom”), seeking to recover damages based on alleged violations of the Washington Consumer Protection Act (the “CPA”) (RCW 19.86, et seq.) and the Debt Adjusting Act (RCW 18.28, et seq.). Id. at 601-02. Freedom moved to compel arbitration based on the following arbitration clause reflected in the parties’ agreement: Arbitration. All disputes or claims between the parties related to this Agreement shall be submitted to binding arbitration in accordance with the rules of [the] American Arbitration Association within 30 days from the dispute date or claim. Any arbitration proceedings brought by Client shall take place in Orange County, California. Judgment upon the decision of the arbitrator may be entered into any court having jurisdiction thereof. The prevailing party in any action or proceeding related to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees which may be incurred. Id. at 602 (brackets in original). In addition, the agreement contained a common “severability clause,” providing that “[i]f any of the above provisions are held to be invalid or unenforceable, the remaining provisions will not be affected.” Id. The borrower opposed Freedom’s motion on the grounds that Freedom failed to move for arbitration in a timely manner and that the arbitration clause was unconscionable. See id. The trial court denied Freedom’s motion, finding that the motion was untimely and the venue requirement for the arbitration was unconscionable, and severed the attorneys’ fee clause. See id. On appeal, the Washington Supreme Court examined whether the arbitration clause, as to the borrower’s interests, was unconscionable. In Washington, a term is “unconscionable” if it is “one-sided or overly harsh, shocking to the conscience, monstrously harsh, or exceedingly calloused.” Id. at 603 (internal quotation marks and citations omitted). The Court noted that “[s]everence is the usual remedy for substantively unconscionable terms, but where such terms ‘pervade’ an arbitration agreement, [the Court] refuse[s] to sever those provisions and [will] declare the entire agreement void.” Id. (citation omitted). In support of its decision not to enforce the arbitration agreement, the Court in Gandee initially found that both the Washington and U.S. Supreme Courts recognized prohibitive-cost challenges to mandatory arbitration clauses. See id. at 604 (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79 (2000), and Adler v. Fred Lind Manor, 153 Wn.2d 331 (2004)). “‘[A]n affidavit describing [the party’s] personal finances as well as fee information obtained from the American Arbitration Association [ ]’ can be sufficient to meet this burden” to demonstrate the unconscionability of an arbitration clause.” Id. (brackets in original) (quoting Adler, 153 Wn.2d at 353). The party seeking to compel arbitration then may present countervailing evidence as to “the likelihood of bearing those costs.” Id. First, the Court found that the borrower had presented evidence sufficient to substantiate a prohibitive-cost defense to the arbitration provision, specifically showing through affidavits that the expenses to be incurred, including travel costs to Orange County, California and AAA fees, proved too costly relative to the borrower’s financial condition. See id. at 604-05. Next, the Court examined the “loser-pays” provision of the arbitration clause, finding that the attorneys’ fees element of the clause serves to benefit only Freedom, and contrary to the legislative intent of the CPA, “effectively chills [the borrower’s] ability to bring suit under the CPA.” Id. at 606. Therefore, as the Court reasoned, the arbitration provision, in this respect, proved one-sided and overly harsh. Lastly, the Court assessed the arbitration clause’s requirement to submit all disputes or claims to binding arbitration within 30 days from the dispute date or claim. See id. While the Court recognized that, “[g]enerally, a private statute of limitations will control over general statutes of limitation, unless prohibited by statute or public policy, or unless it is unreasonable,” the provision in the Gandee case unreasonably shortened the statute of limitations from four years under the CPA to 30 days. Id. (internal quotation marks and citations omitted). In Adler, the Court had previously held that “the shortening of the statute of limitations from three years to 180 days to be substantively unconscionable.” Id. at 607. To this end, the Court in Gandee held that the limitations period at issue was substantively unconscionable. Having found three unconscionable terms within a four-sentence arbitration clause, the Court held that severance was not an option, as the unconscionable terms pervaded the agreement. See id. Accordingly, the Court held that the arbitration clause was unenforceable. In light of the Gandee decision, parties drafting or negotiating terms of a construction contract should pay particular attention to the language used in any mandatory arbitration provision. If the provision clearly benefits one party over the other, dramatically shortens the limitations period for submitting disputes or claims and/or unreasonably deters a party from seeking legal relief, a court could very well find the entire clause unenforceable in a construction dispute. x x x." See - http://www.lexology.com/library/detail.aspx?g=0d0f7bde-b7a6-405a-b4ce-037094cbf2b8&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+federal+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2013-05-23&utm_term=

Persons w/ disability - Republic Act No. 10524 | Official Gazette of the Republic of the Philippines

see - Republic Act No. 10524 | Official Gazette of the Republic of the Philippines

[REPUBLIC ACT NO. 10524]

AN ACT EXPANDING THE POSITIONS RESERVED FOR PERSONS WITH DISABILITY, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 7277, AS AMENDED, OTHERWISE KNOWN AS THE MAGNA CARTA FOR PERSONS WITH DISABILITY

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Equal Opportunity for Employment. – Section 5 of Republic Act No. 7277, as amended, is hereby amended to read as follows:

“SEC. 5. Equal Opportunity for Employment. – No person with disability shall be denied access to opportunities for suitable employment. A qualified employee with disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.

“At least one percent (1%) of all positions in all government agencies, offices or corporal ions shall be reserved for persons with disability: Provided,That private corporations with more than one hundred (100) employees are encouraged to reserve at least one percent (1%) of all positions for persons with disability.”

SEC. 2. Implementing Rules and Regulations. – The Department of Labor and Employment (DOLE), the Civil Service Commission (CSC), the National Council on Disability Affairs (NCDA), the Governance Commission for Government-Owned or -Controlled Corporations (GCG), the Department of Health (DOH), the Department of Social Welfare and Development (DSWD), and the Bureau of Internal Revenue (BIR), in consultation with the concerned Senate and House committees and other agencies, organizations and establishments shall formulate an implementing rules and regulations pertinent to the provisions of this Act within six (6) months after the effectivity of this Act.

SEC. 3. Separability Clause. – Should any provision of this Act be found unconstitutional by a court of law, such provision shall be severed from the remainder of this Act, and such action shall not affect the enforceability of the remaining provisions of this Act.

SEC. 4. Repealing Clause. – All laws, presidential decrees, executive orders, and rides and regulations inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SEC. 5. Effectivity Clause. – This Act shall lake effect fifteen (15) days after its publication in any two (2) newspapers of general circulation.

Some do’s and don’ts for voters | Inquirer Opinion

see - Some do’s and don’ts for voters | Inquirer Opinion

"x x x.

THREE DAYS to Election Day. Are you prepared for it? Here are a few practical do’s and don’ts for voters:

1. Do NOT vote for members of political dynasties. If they do not respect our Constitution, how do you expect them to respect us and our rights?

2. Do NOT vote for candidates just because they were endorsed by President Aquino or Vice President Jejomar Binay. If these two do not obey the Constitution promulgated by President Corazon Aquino, P-Noy’s mother and the person who first appointed Binay to a government position, how can we expect them to obey lesser laws?

3. Do NOT vote for candidates because of their surname. A surname does not make a person; character and intellect do. So ask: Does the candidate have a good moral character, is intelligent, and is well-educated?

4. Do NOT sell your vote. Vote-buying and -selling are prohibited and penalized. You can go to prison if you are caught. By buying your vote, the buyer shows he/she does not respect our laws and can just as easily violate other laws, including those that pertain to your rights. If you desperately need the money, accept it, but all the more should you not vote for him/her. By buying your vote, he/she shows he does not deserve it.

5. Do NOT vote for candidates just because they shook your hand or posed for a picture with you, or they are natives of your town or province, or they are godparents of a relative. Look at their qualifications, track record, and advocacy.

6. If you are a voter in the Zamboanga peninsula, do NOT vote for any member of the Jalosjos clan. Don’t allow yourselves to be ruled by a convicted child rapist.

7. If you are in Sarangani, do NOT vote for any Pacquiao family member. This early, the family is showing utter disrespect for our Constitution. Imagine what they will do when they are in government for a longer period and has control of your province. Manny Pacquiao is, or was, a good boxer, but he has not been a good congressman, as he has shown during his first term. Congress is not a boxing ring. Pacquiao is out of his league there.

8. Do NOT vote for a candidate whose only qualification is her surname and having been a “personal assistant” of her father. What can you expect from the daughter of a father who, when asked what her qualifications for the Senate are, replied, “Because she is my daughter,” and later, “Because I’m her father”? How conceited! Imagine how much more conceited they will be if we elect them to high positions in government.

9. Do NOT vote for a candidate just because he looks like a martyred relative and tries very much to look like the latter and uses him and other dead relatives in his commercials.

10. Do NOT vote for a candidate whose only qualification is the name of her well-loved father that she uses for the purpose of the election.

11. Do NOT vote for any party-list group. Nominees of party-lists are fooling us. They do not really represent the alleged marginalized groups they claim to represent. They were not chosen by those they claim to represent; they chose themselves. And many of them do not belong to the groups they represent.

12. Do NOT vote for any party-list group claiming to represent the media. They are capitalizing on the reputation and goodwill built up by the media through the years, but they were never chosen by us, members of the media. Besides, the media are neither marginalized nor underrepresented.

13. Do NOT let the poll surveys influence your vote. Those high in the rankings do NOT need your vote. It is those who are lagging behind who do.

14. Do NOT be discouraged by the opinion polls. Those low in the rankings can still win if enough of you switch your votes from the political dynasties to them.

15. Do NOT vote for squatter-coddlers, especially in local elections. Some squatters need help but not all of them do. Many are opportunists taking advantage of the squatter-coddlers and the absence of laws against squatting. They have businesses and two- to four-story houses but they do not pay taxes or business fees, yet steal the lots of law-abiding, taxpaying citizens.

16. VOTE for the rivals of members of political dynasties, especially in the provinces. That is the fastest and surest way to get rid of the political clans, which are a bane to our political system and governance.

17. VOTE for candidates who are against political dynasties, the pork barrel, and constitutional change. The first two suck most of the taxes we pay and we cannot trust the present crop of politicians to monkey around with our Constitution.

18. VOTE for candidates you think are honest, sincere and will serve us well even if they rank low in the opinion polls. If enough of us voters switch our votes to them, they can win.

19. VOTE for candidates who have good qualifications and have good track records.

20. VOTE for candidates running against incumbents who have not done well or are suspected of graft and corruption. If only friends and allies of incumbents succeed them, nobody will check what they have done. There will be no checks and balances. If oppositionists succeed incumbents, the latter will be careful not to violate laws lest their successors discover their wrongdoing.

21. Go to the polling places early so you don’t have to wait long to vote. Be careful in shading your ballot. If your pen goes beyond the circle opposite your candidate’s name, the voting machine may not count it.

22. Go to the polling places with a list of your preferred candidates so you will not be influenced by the horde of politicians’ supporters who will hand you self-serving handbills and sample ballots.

x x x."

Read more: http://opinion.inquirer.net/52303/some-dos-and-donts-for-voters#ixzz2Ss16Ih80
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

Lawyers boycott courts for third time this week - thenews.com.pk

see - Lawyers boycott courts for third time this week - thenews.com.pk

"x x x.

Following the attack on the family members of the Sukkur Bar Association president, the lawyer fraternity of Sindh boycotted courts on Wednesday.

SBA President Qurban Malano’s family was attacked in Ghotki, resulting in the death of his brother and brother-in-law and injuries to other family members.

The Sindh Bar Council issued a call for observing a complete strike at all the courts across the province.

Karachi Bar Association President Naeem Qureshi said: “This month five lawyers were murdered in Karachi and several others in different parts of the country.”

He demanded the government to arrest the killers and take serious measures for the protection of the lawyer fraternity.

No under-trial prisoner was brought to subordinate and anti-terrorism courts on Wednesday because of the strike.

The hearing of the Shahzeb Khan murder case was also adjourned till Thursday (today). The prosecution and the defence have already presented their closing arguments.

For the third time this week, the city’s lawyers boycotted courts as a mark of protest against target killings of their colleagues.

Leaders of lawyer associations criticised the government for failing to improve the law and order situation.

They said that it was the caretaker government’s responsibility to protect the lives and properties of the citizens, but it had failed to fulfil its obligation.

 x x x."

Findings of trial courts - April 2013 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG

see - April 2013 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG


"x x x.

Appellate review; the trial court’s factual findings are accorded great respect and even conclusive effect; these factual findings and conclusions assume greater weight if they are affirmed by the Court of Appeals. The accused were charged with the crime of robbery with homicide, after accosting sisters AA and BB along a street in Olongapo City one evening, taking the bag of AA which contained money and fatally stabbing BB. On appeal, the accused attacked the credibility of AA as a witness by citing the alleged inconsistencies in her testimony. In finding against the accused, the Supreme Court reiterated the doctrine that findings of the trial court on such matters involving the credibility of witnesses cannot be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case. AA is more than just an eyewitness, she is a surviving victim of the crime. Her testimony, as described by the RTC, was “categorical and straightforward.” AA had positively identified all the accused. There is therefore no reason to disturb the factual findings of the trial court. People of the Philippines v. Welvin Diu y Kotsesa, et al., G.R. No. 201449, April 3, 2013.

x x x."

Witness protection program. - April 2013 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG

see - April 2013 Philippine Supreme Court Decisions on Criminal Law and Procedure | LEXOTERICA: A PHILIPPINE BLAWG


"x x x.
Witness Protection, Security and Benefit Act; requirements under R.A. No. 6981. A certain Kenny Dalandag was admitted into the Witness Protection Program of the Department of Justice (DOJ) under R.A. 6981, otherwise known as The Witness Protection, Security and Benefit Act, in connection with the prosecution of the crime of murder filed against 196 accused in what became aptly known as the Maguindanao massacre. Petitioner, one of the accused, wrote to respondent Secretary of Justice Leila De Lima and Assistant Chief State Prosecutor Richard Fadullon to request the inclusion of Dalandag in the informations for murder considering that Dalandag had already confessed his participation in the massacre through his two sworn declarations. After the DOJ denied his request, petitioner filed a case for mandamus seeking to compel respondents to include Dalandag in the informations. The RTC denied the petition. In affirming the decision of the RTC, the Supreme Court held that there is no requirement under R.A. 6981 for the prosecution to first charge a person in court as one of the accused in order for him to qualify for admission into the Witness Protection Program. The admission as a state witness under R.A. 6981 also operates as an acquittal, and said witness cannot subsequently be included in the criminal information except when he fails or refuses to testify. The immunity for the state witness is granted by the DOJ, not by the trial court. Should such witness be meanwhile charged in court as an accused, the public prosecutor, upon presentation to him of the certification of admission into the Witness Protection Program, shall petition the trial court for the discharge of the witness. The Court shall then order the discharge and exclusion of said accused from the information. Datu Andal Ampatuan, Jr. v. Sec. Leila De Lima, as Secretary of the Department of Justice, et al, G.R. No. 197291, April 3, 2013..

x xx."

Banks urge SC to stop Comelec 'cash ban' | ABS-CBN News

see - Banks urge SC to stop Comelec 'cash ban' | ABS-CBN News

"x x x.

MANILA (3rd UPDATE) - The Bankers Association of the Philippines (BAP) has asked the Supreme Court (SC) to stop the Commission on Elections (Comelec) from implementing its so-called "money ban," aimed at preventing vote-buying in Monday's polls.

Represented by the Romulo Mabanta Law Firm, the BAP filed its 28-page petition for prohibition with the high court at past 10 o'clock this morning.

The ban prohibits the withdrawal of more than P100,000 from banks and other financial institutions, and the "possession, transportation and/or carrying" of more than P500,000 in cash up to May 13, election day.

The petition sought the immediate issuance of a temporary restraining order (TRO) and/or status quo ante order (SQAO) to stop the poll body from implementing its resolution ordering the "money ban." BAP insisted that the order is unconstitutional.

The petition stated that the poll body "acted without jurisdiction" in issuing the resolution, "acted with grave abuse of discretion amounting to lack or excess of jurisdiction" because the ban violated the 1987 Constitution, and "acted without jurisdiction" because the ban "invalidly amended Republic Act (RA) No. 9160 (Anti-Money Laundering Act of 2001).

The petition also stressed that the ban "violates the laws on secrecy of bank deposits" because it will "require banks and other persons to look into bank deposit accounts."

"As a general rule, the State cannot arbitrarily interfere with a person's right to enjoy and use his or her personal property, including his or her money.

"As explained by the Supreme Court in construing this right, which finds its basis in the U.S. Constitution, the State must ensure that persons 'have the right to pursue their happiness and acquire and enjoy property,' such that 'there should be no arbitrary spoliation of property," the petition read.

The petition further asserted that the said ban is not "reasonably necessary to achieve its avowed purpose, and is in fact unduly oppressive" and that complying with the ban will only open banks to "all kinds of class suits by their depositors."

The Comelec said on Thursday that it was amending the resolution and would add a provision giving banks the discretion to allow withdrawals of more than P100,000 for their clients who would regularly withdraw more than this cap.

x x x."

Optional Protocol of the Covenant on Economic, Social and Cultural Rights

see - Optional Protocol of the Covenant on Economic, Social and Cultural Rights

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The General Assembly,

Taking note of the adoption by the Human Rights Council, by its resolution 8/2 of 18 June 2008, of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,

1. Adopts the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the text of which is annexed to the present resolution;

2. Recommends that the Optional Protocol be opened for signature at a signing ceremony to be held in 2009, and requests the Secretary-General and the United Nations High Commissioner for Human Rights to provide the necessary assistance.

Annex Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Preamble

The States Parties to the present Protocol,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Noting that the Universal Declaration of Human Rights1 proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Recalling that the Universal Declaration of Human Rights and the International Covenants on Human Rights2 recognize that the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy civil, cultural, economic, political and social rights,
Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms,

Recalling that each State Party to the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the Covenant) undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures,

Considering that, in order further to achieve the purposes of the Covenant and the implementation of its provisions, it would be appropriate to enable the Committee on Economic, Social and Cultural Rights (hereinafter referred to as the Committee) to carry out the functions provided for in the present Protocol,

Have agreed as follows:

Article 1 Competence of the Committee to receive and consider communications

1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications as provided for by the provisions of the present Protocol.

2. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.

Article 2 Communications

Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.

Article 3 Admissibility

1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted. This shall not be the rule where the application of such remedies is unreasonably prolonged.

2. The Committee shall declare a communication inadmissible when:

(a) It is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit;
(b) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date;
(c) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;
(d) It is incompatible with the provisions of the Covenant;
(e) It is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media;
(f) It is an abuse of the right to submit a communication; or when
(g) It is anonymous or not in writing.

Article 4 Communications not revealing a clear disadvantage

The Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance.

Article 5 Interim measures

1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication.

Article 6 Transmission of the communication

1. Unless the Committee considers a communication inadmissible without reference to the State Party concerned, the Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State Party concerned.

2. Within six months, the receiving State Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State Party.

Article 7 Friendly settlement

1. The Committee shall make available its good offices to the parties concerned with a view to reaching a friendly settlement of the matter on the basis of the respect for the obligations set forth in the Covenant.

2. An agreement on a friendly settlement closes consideration of the communication under the present Protocol.

Article 8 Examination of communications

1. The Committee shall examine communications received under article 2 of the present Protocol in the light of all documentation submitted to it, provided that this documentation is transmitted to the parties concerned.

2. The Committee shall hold closed meetings when examining communications under the present Protocol.

3. When examining a communication under the present Protocol, the Committee may consult, as appropriate, relevant documentation emanating from other United Nations bodies, specialized agencies, funds, programmes and mechanisms, and other international organizations, including from regional human rights systems, and any observations or comments by the State Party concerned.

4. When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.

Article 9 Follow-up to the views of the Committee

1. After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned.

2. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

3. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under articles 16 and 17 of the Covenant.

Article 10 Inter-State communications

1. A State Party to the present Protocol may at any time declare under the present article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. Communications under the present article may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under the present article shall be dealt with in accordance with the following procedure:

(a) If a State Party to the present Protocol considers that another State Party is not fulfilling its obligations under the Covenant, it may, by written communication, bring the matter to the attention of that State Party. The State Party
may also inform the Committee of the matter. Within three months after the receipt of the communication the receiving State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;
(b) If the matter is not settled to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;
(c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter. This shall not be the rule where the application of the remedies is unreasonably prolonged;
(d) Subject to the provisions of subparagraph (c) of the present paragraph the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the Covenant;
(e) The Committee shall hold closed meetings when examining communications under the present article;
(f) In any matter referred to it in accordance with subparagraph (b) of the present paragraph, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;
(g) The States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;
(h) The Committee shall, with all due expediency after the date of receipt of notice under subparagraph (b) of the present paragraph, submit a report, as follows:

(i) If a solution within the terms of subparagraph (d) of the present paragraph is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;
(ii) If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in its report, set forth the relevant facts concerning the issue between the States Parties concerned. The written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. The Committee may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them.

In every matter, the report shall be communicated to the States Parties concerned.

2. A declaration under paragraph 1 of the present article shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by any State Party shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 11 Inquiry procedure

1. A State Party to the present Protocol may at any time declare that it recognizes the competence of the Committee provided for under the present article

2. If the Committee receives reliable information indicating grave or systematic violations by a State Party of any of the economic, social and cultural rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

3. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

4. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.

5. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.

6. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee.

7. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2 of the present article, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report provided for in article 15 of the present Protocol.

8. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General.

Article 12 Follow-up to the inquiry procedure

1. The Committee may invite the State Party concerned to include in its report under articles 16 and 17 of the Covenant details of any measures taken in response to an inquiry conducted under article 11 of the present Protocol.

2. The Committee may, if necessary, after the end of the period of six months referred to in article 11, paragraph 6, invite the State Party concerned to inform it of the measures taken in response to such an inquiry.

Article 13 Protection measures

A State Party shall take all appropriate measures to ensure that individuals under its jurisdiction are not subjected to any form of ill-treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.

Article 14 International assistance and cooperation

1. The Committee shall transmit, as it may consider appropriate, and with the consent of the State Party concerned, to United Nations specialized agencies, funds and programmes and other competent bodies, its views or recommendations concerning communications and inquiries that indicate a need for technical advice or assistance, along with the State Party’s observations and suggestions, if any, on these views or recommendations.

2. The Committee may also bring to the attention of such bodies, with the consent of the State Party concerned, any matter arising out of communications considered under the present Protocol which may assist them in deciding, each within its field of competence, on the advisability of international measures likely to contribute to assisting States Parties in achieving progress in implementation of the rights recognized in the Covenant.

3. A trust fund shall be established in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, with a view to providing expert and technical assistance to States Parties, with the consent of the State Party concerned, for the enhanced implementation of the rights contained in the Covenant, thus contributing to building national capacities in the area of economic, social and cultural rights in the context of the present Protocol.

4. The provisions of the present article are without prejudice to the obligations of each State Party to fulfil its obligations under the Covenant.

Article 15 Annual report

The Committee shall include in its annual report a summary of its activities under the present Protocol.

Article 16 Dissemination and information

Each State Party undertakes to make widely known and to disseminate the Covenant and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, on matters involving that State Party, and to do so in accessible formats for persons with disabilities.

Article 17 Signature, ratification and accession

1. The present Protocol is open for signature by any State that has signed, ratified or acceded to the Covenant.

2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Covenant. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Covenant.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 18 Entry into force

1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.

2. For each State ratifying or acceding to the present Protocol, after the deposit of the tenth instrument of ratification or accession, the Protocol shall enter into force three months after the date of the deposit of its instrument of ratification or accession.

Article 19 Amendments

1. Any State Party may propose an amendment to the present Protocol and submit it to the Secretary-General of the United Nations. The Secretary-General shall communicate any proposed amendments to States Parties, with a request to be notified whether they favour a meeting of States Parties for the purpose of considering and deciding upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a meeting, the Secretary-General shall convene the meeting under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the Secretary-General to the General Assembly for approval and thereafter to all States Parties for acceptance.

2. An amendment adopted and approved in accordance with paragraph 1 of the present article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties which have accepted it.

Article 20 Denunciation

1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation
shall take effect six months after the date of receipt of the notification by the Secretary-General.

2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under articles 2 and 10 or to any procedure initiated under article 11 before the effective date of denunciation.

Article 21 Notification by the Secretary-General

The Secretary-General of the United Nations shall notify all States referred to in article 26, paragraph 1, of the Covenant of the following particulars:

(a) Signatures, ratifications and accessions under the present Protocol;
(b) The date of entry into force of the present Protocol and of any amendment under article 19;
(c) Any denunciation under article 20.

Article 22 Official languages

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 26 of the Covenant.