Boxing day, or Saint Stephen’s day, is traditionally celebrated on December 26. Although there now seems to be a dispute as to the origins of Boxing day, I choose to believe the more Christian interpretation that it originated from the practice of giving presents to the less fortunate to commemorate Saint Stephen, one of seven men appointed by the apostles to take care of the church’s poorer members. Think “Good King Wenceslas”.
Sadly, boxing day has become more associated the world over with the infamous 2004 earthquake and tsunami, which is one of the reasons I write this piece, so as to help dispel the correlation of the day and the tragedy, which appears to be doomed to be remembered as the “Boxing Day Eathquake”.
Bad news aside, boxing day, while largely being ignored in the Philippines, took special significance for me this year.
My wife’s nephews had what was obviously a top of the line computer for its time, a Dell Optiplex 750Mhz that only had the basic goods. Gathering my old equipment, I managed to give them a 32 MB Nvidia Geforce PCI graphics accelerator (hard to find in this country) and an extra 320 MB of memory. I also installed a CD-RW drive my wife and I bought them for Christmas. Having the boys test it as soon as I delivered their upgraded PC, they jumped for joy when they saw how much faster their favorite game could run.
That it took so little effort to make them happy reminded me that it is much, much better to give than to receive. The feeling is priceless. This is a secret that is lost on too many of us, when we try to find happiness by taking what we can for ourselves, only to find that wanting can sometimes be much better than having. We ought to try giving more often.
Next year, I’m marking boxing day again.
BOXING DAY
THE TWELVE DAYS OF CHRISTMAS
Now that we've learned that St. Nick doesn't have reindeer, and hopefully has successfully directed our attention to Jesus, and in response to Pope Benedict's call to give Christmas a more traditional meaning, I'd like to post an explanation, an interpretation if you will, of the Christmas carol, "Twelve Days of Christmas".
I first started posting this in the early `90's before most people even heard of the "internet" on my hobby Bulletin Board System, My Shorts! BBS (so named in honor of Bart Simpson). The original was an ANSI file with blinking ANSI figures. At the time, making blinking colored ANSI was pretty cool. Although I can't claim singular credit for publicizing it first, heck, I didn't write it, I'm glad to see that it has made the rounds so that many have already read it by now.
Here it is:
Did You Know?
From 1558 until 1829 the Catholics of England were forbidden by law to practice their faith. As a result of this ban the ingenious Catholics devised secretive and symbolic songs to teach their children the truths of their religion. One of the most successful and beautiful of these was the Christmas carol "The Twelve Days of Christmas".
The "Twelve Days" stand for the Christmas Season, December 25 to January 6. The "True Love" in the carol is God himself, who gives Christians special gifts on each of the twelve days.
"On the first day of Christmas, my true love game to me, A partridge in a pear tree"
The "True Love" in the carol is God himself, and the first gift, "a partridge in a pear tree", symbolizes Christ (the bird), who gathers His young under His wings. The tree harkens back to the Tree of Paradise, which Adam lost by sin and Christ promised to restore.
God's first gift, therefore, is His very own son Jesus...
"On the second day of Christmas, my true love gave to me, Two turtle doves..."
"Two turtle doves" represent the sacrifice which a Jewish family had to make at the temple upon the birth of a son. Our sacrifice is the Divine Liturgy...
"Three French Hens" symbolize the three gifts of the Magi to the newborn Messiah. They also may mean the three gifts of Faith, Hope and Charity realized in the birth of the Savior.
"Four Calling Birds" makes us think of the four evangelists whose four Gospels call us all to the Bethlehem manger of the Redeemer.
"Five Golden rings" suggests the first five books of the Old Testament, the Law or Pentateuch, which Christ came to fulfill and complete.
"Six Geese-a-Laying", ungainly but working, suggests the six days of the week, when humanity labors and brings forth the fruit of the land.
"Seven Swans-a-Swimming" reminds us of the seven gifts of the Holy Spirit or even the seven works of Mercy.
"Eight Maids-a-Milking" represents the eight beatitudes that are the nourishment of Christians.
"Nine Ladies Dancing" recalls the nine ranks of angels or the nine fruits of the Holy Spirit as mentioned by St. Paul in Galatians 5:22.
"Ten Lords-a-Leaping" clearly signifies the Ten Commandments...
"Eleven Pipers Piping" refers to the eleven Apostles, now without Judas, proclaiming the Good News of Jesus Christ to the world.
Finally, "Tweleve Drummers Drumming" reminds us of the twelve articles of faith of the Nicaean Creed.
We cannot help but marvel at the courage and faith of these English Catholics, as we read "The Twelve Days of Christmas". And then we think of our Christian brothers and sisters who are forbidden to practice their faith in some parts of the world. And we praise and thank the Lord for freedom.
THE SOLEMN AFFIRMATION
It seems a lot of lawyers don't really understand what a solemn affirmation is. Following is an order I recently released that discusses the solemn affirmation in some detail.
These cases are before this Court upon two informations filed by the prosecution charging the accused with perjury.
The accused is alleged to have filled up two Personal Data Sheets (Civil Service Forms 212) indicating therein that he is a Filipino citizen even though he is actually a citizen of the United States of America.
Finding during pre-trial that the Personal Data Sheets had not been sworn to before a solemnizing officer, the Court directed the prosecution to submit a position paper to justify bringing the accused to trial.
In its position paper, the prosecution cites as precedent the cases of U.S. vs. Tupasi Molina, People vs. Cruz and Diaz vs. People. These cases do little to support the prosecution’s stand on the issue for they all have to do with statements that were made under oath.
To put the matter in black and white, all the prosecution had to establish was whether or not the accused had made his statements under a solemn affirmation in lieu of an oath. In bringing this case to Court, the prosecution may have misunderstood what exactly a solemn affirmation is.
The prosecution seems to be suffering from the impression that a solemn affirmation is the absence of an oath, when a person otherwise required to swear to the truth of his statements, cannot in conscience take one. Such a simplistic interpretation of the law, however, cannot be adopted by this Court.
A solemn affirmation is;
“A solemn declaration made under the penalties of perjury by a person who conscientiously declines taking an oath.”[1]
“An affirmation is a solemn declaration or assertion that an affidavit is true, that the witness will tell the truth, this being substituted for an oath in certain cases.”[2]
Being a solemn declaration, it is necessary that it be made before a person authorized to administer oaths or solemn affirmations.
“It is evidenced by a jurat properly taken before a duly authorized officer.”[3]
A solemn affirmation therefore, is exactly the same as an oath, except for the fact that it is;
“A solemn statement which omits any religious reference and is by statute equivalent to an oath. The falsity of an affirmation is perjury.”[4]
so that;
“The words, ““So help me God”” are omitted in an affirmation.”[5]
It is not, as the prosecution apparently believes, the omission altogether, of any assertion that a person otherwise required to take an oath, is telling the truth. What is omitted is only any reference to God as in an oath so that the constitutional rights of those who are conscientiously scrupulous about taking one are not violated.
The intent of the second paragraph of Article 183 of the Revised Penal Code of the Philippines is to make clear that a solemn affirmation carries the same weight before the law as an oath, as an oath;
“Xx involves the idea of calling on God to witness what is averred as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favor, in the event of falsehood.” [6]
and an affirmation on the other hand does not quite carry the same weight with those who choose not to take an oath.
The Personal Data Sheets accompanying the two informations before this Court are without jurats or any other indication that the accused made assertions before a solemnizing officer that his entries in the forms were truthful. That he made such an assertion is the very essence of the felony with which he is charged in both informations. There is, therefore, no cause to hold him for trial.
--------------------------------------------------------------------------------
[1] Webster’s Third New International Dictionary
[2] 67 C.J.S. §3, 1950 p.5 citing 23 Black L.D. in turn citing 46 C.J. p.839 note 39
[3] Ibid., §7, p.9
[4] Sibal, Philippine Legal Dictionary, 1986
[5] Aquino, The Revised Penal Code, Vol. II, 1987 ed.
[6] Reyes, The Revised Penal Code, Vol. II, 15th ed.
OUTRIGGER CANOE
YES VIRGINIA, THERE IS A SANTA CLAUS!
Yes Virginia, there is a Santa Claus! But he doesn't have flying reindeer nor does he climb down chimneys. AND... he wants us to get closer to Jesus.
Here's a website I visit every year when Christmas approaches. It reminds us that Santa Claus is part of the Christmas tradition to help us focus on Jesus's central role in our faith.
It explains many Christmas traditions including the practice of gift giving and candy canes.
Hope you enjoy visiting it as much as I do.
The website is:
WWW.STNICHOLASCENTER.ORG
DON IN THE CRADLE
My Uncle Bobby just sent me the following SMS:
"Watch Barbie Almalbis at (sic) Myx TV now."
"Y?", I reply. "I didn't know you like Barbie."
"She's your niece.", came the answer.
"What???", I thought. "When did I get OLD?"
:-))
Turns out through some convoluted Filipino way of identifying relations, she IS my niece. Welcome to the family, Barbie. You sing nearly as well as I do.
B-).... ;-)..... :-D
THE FALLACY OF A NON-PARTISAN COMELEC
Right after the 1986 constitution had been ratified, I happened to catch an interview with an American Political Scientist (his name escapes me now though I would very much like to remember who he was) who came to observe the first elections under the new constitution. One of his observations had to do with the "non-partisan" composition of the Commission on Elections.
Comparing this to the partisan composition of the American equivalent of the COMELEC, he stated, "Our laws don't presume men to be angels."
Aptly said. Indeed, the composition of the COMELEC is now an important matter in light of "Gloriagate" or what the masa simply calls "Hello Garci?".
The Garci scandal has opened our minds to the possibility that our COMELEC commissioners are no angels (What, you actually thought they were?) who will decide election controversies with unquestionable impartiality. The mere fact that every commissioner has the same right to vote as every Filipino citizen already means that it is inherently impossible for them to be non-partisan in character. That our President may have called the Chairman during the elections underlines this situation. That we can have a trustworthy non-partisan COMELEC is a fallacious contention.
Let's face it, our COMELEC commissioners are "closet partisans" who will favor their candidates or those of the powers that be that appointed them. We might as well, or should I say, we ought to, adopt a system where the political parties are represented in the COMELEC.
In a two party system, the COMELEC would be divided right down the middle, e.g. Four LABAN commissioners and Four LAKAS commissioners. If they acted purely in the interests of a party, there would ALWAYS be a stalemate. Since even COMELEC commissioners should have some qualifications, we can safely presume that the commissioners would still be rational enough to understand that a perpetual stalemate would not be in the best interests of their parties and the people, hence, they will be forced to act in the best interests of the latter.
The mathematics are not as simple in a multiparty system, however. But some formula could be worked out that would ensure representation of all parties in the system. For example, raising the necessary number of votes to declare an election result valid from and instead of a simple majority. The end result is a COMELEC whose decisions the political parties will not be quick to question, as they are represented within the COMELEC, and which is beholden to the best interests, not of the political parties, but of the people.
Before anyone talks about amending the Constitution to adopt a federal form of government, maybe we should talk about changing the composition of the COMELEC first.
OPTIONS, BROKERS & REALTORS
One oft misused word by unlicensed real estate brokers is “option”. To them, an “option” is the authority given them by the landowner to sell the owner’s property.
This use of the word "option", not only is wrong, it is a good indicator that you should not be dealing with the broker.
An "option" in the Real Estate Industry, refers to an "option to buy." Separate from the contract of sale, it refers to another contract between a potential buyer and the seller of property which gives the potential buyer the exclusive right to purchase the property within a specified period.
For example, were I interested in your land, but still unsure if it would fit my needs, I might pay you a small amount, say P10,000.00, to keep you from selling the property to other persons for, say, a couple of weeks. The seller is thus prohibited from selling the property to third parties for two weeks while I am free to consider other real estate (or raise enough money to pay the purchase price). Since I paid you the amount of P10,000.00 to keep you from selling the property, it does not form part of the purchase price should I eventually decide to buy your land.
The "option to buy" is very different from "earnest money" which effectively is a downpayment for the land.
Law students and licensed brokers are taught the difference, which is why, if you deal with a person who represents himself to be a real estate broker asks you for the "option", you should be on your guard as to whether or not he is legit. You have no obligation, nor any right, to pay unlicensed brokers any commission. To do so is a criminal offense.
The best way to find out if you are dealing with a licensed broker is to check his business cards and even stationary, for a licensed broker is required by law to have his License Number printed in any written communication he has with clients or even potential clients. When in doubt, you can always call the Department of Trade and Industry and verify with them if the broker is legit.
Licensed brokers, on the other hand, will ask you for either, in plain English, the "Authority to Sell", or in broker's parlance, the "LISTING". The contract that gives the broker the authority to sell is properly called the "LISTING CONTRACT."
Thus, you may correctly inquire of a broker if he has a "LISTING" for a three bedroom house with a large garden, e.g. "Do you have a LISTING for a three bedroom house with a large garden?" Or you could ask, if the seller Mr. A refers you to his broker, "Do you have Mr. A's property LISTED?" or "Do you have the LISTING for Mr. A's house?"
Which brings us to the term REALTOR. Unknown to the general public, not all Real Estate Brokers, even licensed ones, are REALTORS. A Realtor is a Licensed Real Estate Broker who has joined the National Association of Realtors (based in the United States) or one of its affiliated Real Estate Boards. In the Philippines, the authorized affiliate is the Philippine Association of Real Estate Boards, or PAREB. Thus, all REALTORS are licensed real estate brokers, but not all brokers are REALTORS. REALTORS are bound to respect their own Code of Ethics and Standards, thus assuring that all transactions you have with a REALTOR will be above board. A REALTOR who has violated the Code, may be removed from membership. Licensed Real Estate Brokers who have not joined the NAR or its affiliates are not allowed to use the term REALTOR. One way to determine if the "realtor" is really a realtor is if he has the registered mark after the term in his business cards, i.e. REALTOR®.
In the Philippines, Real Estate Brokers are governed or regulated by the Department of Trade and Industry, so you have administrative recourse, aside from resort to the Courts, against your broker if you feel he has engaged in unethical or illegal practices. This should be a good enough reason, apart from the better service they offer, for you to deal with only Licensed Brokers and REALTORS.
THEORY OF RELATIVITY
I recently had the opportunity to ask Justice Hilarion Aquino about remedies available to an offended party where the information had been dismissed outright for lack of probable cause (see Got Cause?).
A hot topic of discussion among judges that they couldn’t resolve by themselves was whether or not the offended party could still prosecute the civil claim.
In the Philippines, unlike some jurisdictions, the offended party is entitled to prosecute his claim for his personal injury in the criminal action. What the judges can’t seem to agree on, is whether or not, upon a finding that there is no probable cause to prosecute the accused for the criminal case, the civil claim may proceed in the criminal case.
On one hand, some judges say yes. They say it is only just that an offended party should be allowed to pursue his claim so that he may avoid having to go through the inconvenience of filing a separate suit, and thus avoid a multiplicity of suits.
Some of us, including this writer, say no.
Thus, the question I laid at Justice Aquino’s feet. His answer?
“YES! And let me tell you why!” Judges in concurrence with me gasped at this apparent loss in the battle of opinions. “To prosecute a civil claim successfully, one only needs a preponderance of evidence. To ensure that a criminal case is given due course in Court, one needs probable cause, a level of evidence higher than mere preponderance. Thus, as relative to preponderance, probable cause is a higher standard of evidence, the civil claim may be prosecuted.”
I’m sure that would have ended all debate before most fora. Except, the good justice ended his answer with, “That is my THEORY.”
With all due respect to the good justice, please allow us in the negative to continue to disagree.
The chief point of contention for the contumacious ;-) is the fact that the civil liability sought to be prosecuted in a criminal action is that which arises from the criminal act itself. This is very different from the liability that arises from a valid cause of action in a civil case, personal injury included. The only valid conclusion that can be derived from the premises, therefore, I SUBMIT, is that the civil claim can no longer be pursued once a judge dismisses a case outright for lack of probable cause for when the Judge does so, he states at the earliest instance, that there is no cause to believe a crime has occurred, and so the basis of civil liability is absent.
This is vastly different from when an offended party has already presented evidence and the Court, having found no criminal liability, awards the civil claim anyway. In this instance, evidence has already been presented, and the inconvenience for the offended party should he have to file a separate civil claim is manifest, for he would have to prove once again what he had already proven in the criminal action, an unnecessary multiplicity of suits. Note that the civil liability awarded is not based on any criminal act.
When the case has been dismissed for lack of probable cause, however, the Court makes an express statement that there is no civil liability, as there is no probable cause to believe that the criminal act that gives rise to the civil liability, has occured. When the Court does grant an offended party his civil claim despite acquitting him, the Court has simply found that based on the evidence presented, the accused is civilly liable to the offended party for some reason other than a crime.
Which is why the better remedy for the offended party in the latter instance is to file a separate civil suit.
FORGET "SUGBO"
We’ve all heard the story. Although different versions mention either Magellan’s or Urdaneta’s expedition, the story is the same.
When the Spaniards came, they found some natives gathered around the campfire. Asking for the name of the place, they pointed to the ground. The natives thought they were pointing at the ashes of the campfire, so they replied, “Sugbo.”
Thus, the myth that the native name of Cebu is “Sugbo”.
This, of course, is a fictitious story. Magellan had the services of Enrique, adept in the language of the natives. Pigafetta records the name of the town as “Zzubu” (without a “g”).
As a little boy, I could never find an 80 year old who would tell me that the name of the city I was born in was “Sugbo.” It was always Cebu.
Unfortunately, decades of Tagalog ethnocide (Cebuanos are not taught Visayan, the language of which Cebuano is a dialect, in school and are encouraged to use Tagalog or English outside the classroom) ensured that many Cebuanos would believe this story. The result can be seen in how quickly native Cebuanos name their restaurants “Sugbo-sugbo” and such, and government officials hail their projects as for “Sugbuanons” (too close to "Sinugba", the Cebuano word for "barbecue", if you ask me. How about it, Sinugba-anons?).
Few things could be considered a greater insult to the Cebuanos. The name “Sugbo” is derogatory as it is. “Sugbo” was adopted as the “Pilipino” name for Cebu only because the Tagalogs managed to have Tagalog made the basis for the “Pilipino” language to the consternation of the Visayans.
The National Language Committee that was created then adopted a truncated alphabet without the letters C, J,V and Z. Unlike Tagalog, all four letters are essential in Visayan and Cebuano.
The committee then scoured the Visayan language for words that would come closest to “Cebu” that could be spelled in Tagalog. This search yielded the word, “Sugbo”. To give credence to the name, the fable that there was confusion between the Spaniards and early Cebuanos was created.
A noted Cebuano historian, Dr. Resil Mojares, claims that the name Cebu has its origins in an early Malay phrase that means “to walk on water.” (Ashes might be credible if Cebu had a volcano.) Other linguists opine, and this to me is the more logical explanation, that the name Zzubu, or Zebu, has the same origin as the Malay word “Sebu” which means “full” (as in stomach) or having in abundance.
If we go over Pigafetta’s chronicles, it is clear that the town of Zzubu was the most developed or civilized of all the towns of the Philippines, to be surpassed by Manila only when the Spaniards made it their capital. Thus, that the native name of Zzubu or Zebu meant “a place of abundance” is the more likely origin of the proud city’s name.
Time to forget “Sugbo.”
SO-LONG SPORTS
Solar Sports, the exclusive carrier of the Manny Pacquiao - Erik Morales fight (you couldn't even see it on ESPN) suffered a major embarassment when everyone learned of the result before they could broadcast the match, losing a lot of viewers who would have otherwise lapped up their sponsor's ads.
Solar obviously hadn't heard of the internet, text messaging and in some cases, International Direct Dial. The less fortunate fight fans even had the pleasure of hearing the fight live blow for blow on radio, harkening back to the '40's and '50s.
There obviously is no end to corporate greed, but this time, Solar Sports' plot backfired on it.
In order to expand advertising time, carriers of major fights delay the broadcast so that they can expand the time in between rounds (1 minute) to around 15 minutes.
Thus, come fight time, the unfortunate Filipino viewer who doesn't know better is treated to the undercard.
By pretending that we still lived in the dark ages, however, Solar Sports lost a lot of viewers when word had spread that our boy Manny had lost.
If I remember correctly, what Solar Sports did is illegal. Mr. Ferdinand Marcos was a fight fan and banned this nefarious practice.
Now when I was a little boy before greedy TV stations discovered this trick, the way to make advertising time was to generate excitement by gathering a bunch of boxing experts who would analyze the strengths of the boxers and show documentaries about the fighters' lives and careers, both of which would allow for lots of advertising, but, come fight time, the broadcast would be LIVE, even if the quality of the video was as good as that of Apollo 11's landing on the moon. Heck, we even got to see those pretty "round girls".
All that however, has disappeared in favor of G-R-E-E-D.
They should change the name to SO-LONG SPORTS, for thinking that they could make the fight fans wait for so long.
IN MEMORIAM: POPE JOHN PAUL II
In memory of Pope John Paul II, my friend and I placed flowers at the only spot he held mass in the City of Cebu, at the IT park at a corner near People's Support. We thought others would follow suit, but because the cross that used to mark the spot (the guards informed me it had been moved to Ayala Heights, up in the mountains) was no longer there, they had a hard time finding the spot, so our plan to build a mountain of flowers for the Pope ended with two bouquets.
I think maybe the guys at Ayala should restore the cross and build a small chapel there with the cross at its altar, if only to honor the memory of this great man.
Of course, in this City and Province where the residents notoriously fail to give any significance to historical landmarks (who else would convert Fort Santiago into a zoo, leave the City cemetery where a president is buried to squatters, and jacket a Spanish watchtower in concrete?), that's not likely to happen.
THE BEST SOUNDTRACK IS FROM A CARTOON?
My review of "Music from the SpongeBob Squarepants Movie" at Amazon.com.
Since my daughter is both an Avril Lavigne and Sponge Bob fan, I decided to pick up this album when I realized I couldn't have Green Day's "American Idiot" with its explicit lyrics around the house.
Avril's cover of the SpongeBob theme is Grade A! Too bad it's too short, though, so I converted it to MP3 and using my MP3 editor made it loop back to "Who lives in a pineapple under the sea?" from the second "Sponge Bob Square Pants" after "Flop on the deck and flop like a fish" when I burned a copy for the car. My daughter loves the "remix". :-p
The only songs I couldn't stand listening to are Patrick's "Under My Rock" and the "Goofy Goober Rock", the latter being a sacrilegious cover of the Twisted Sister classic. Guess what? I put in "I Wanna Rock" in the CD I burned and it fits right in, coming just before Motorhead's "You Better Swim".
The truly kiddy stuff here is limited, Googy Goober Song, Best Day Ever, Now That We're Men and an opera style cover of the SpongeBob theme by the Pirates. And even those you can sing along to. Well, maybe not "Now That We're Men."
Overall, four stars. Make no mistake, this is the BEST soundtrack album to emerge in recent years. And maybe its not too late to remove "The Goofy Goober Rock" from the movie and replace whatever sequence it's in with animated sealife versions of Twisted Sister singing the original. ;-)
QUEEN CITY
Cebu City is referred to as the “Queen City” of the Philippines in honor of Queen Jumamay, protector and keeper of Cebu’s former patron, the Santo Niño de Cebu (image of the Child Jesus).
The wife of Cebu’s ruler when Ferdinand Magellan landed in Cebu, Rajah Humabon, she took the Spanish name “Juana” when baptized a Catholic by Father Pedro Valderama, chaplain of Magellan’s expedition.
Antonio Pigafetta, chronicler and “spin doctor” of Ferdinand Magellan, presented Queen Juana with the Image of the Santo Niño.
Well, we all know what happened to good ol’ Ferdie. Having taken sides with Rajah Humabon in gratitude for his hospitality, he launched the most unsuccessful attack on Lapu-Lapu, Humabon’s rival. Apparently, he failed to realize that Lapu-Lapu and his men were deep in training in the martial art of “arnis” precisely to fight Humabon.
So Spain sent another expedition to the Far East Region headed by an Agustinina priest, Andres Urdaneta. Fr. Andres arrived in Cebu on April 27, 1565.
Because of suspicions that the Spaniards had returned to exact vengeance upon the natives for the death of Magellan (the word “ally” must have been lost in the translation. Why on earth didn’t they just attack Lapu-Lapu together?), battles broke out and then Zzubu (it was never “Sugbo” until Tagalogs tried to make Tagalog the national language, notice how you cannot spell “Cebu”, “Zebu” or “Zzubu” using the Tagalog alphabet. Let’s get rid of “Sugbo” already) was reduced to rubble. Fr. Andres had obviously learned the bitter lessons of Magellan’s ill-fated expedition.
The image of the Child Jesus was later found under a pile of ashes unscathed. Other accounts have either Queen Juana protecting the statue after the village had fallen or the statue being restored to the Queen, who reigned for a while as the city's symbolic leader, for safekeeping.
The Santo Niño is credited by most Cebuanos with many miracles, and for keeping the island and province of Cebu safe from natural disasters and the dangers of the insurgency and terrorism in the Country.
Thus, it is only fitting that Cebuanos call their city the “Queen City”.
Compare that to the Ilonggos who, in typical fashion, seem to be suffering under the impression that the title “Queen City” belongs to the city that is “second best to Manila”.
Well, there’s no argument about which city that is, is there? ;-)
GOT CAUSE?
One motion quickly gaining favour among lawyers after the 2000 Rules of Criminal Procedure came into effect is the “Motion for Determination of Probable Cause ” to hold the accused for trial.
The 2000 Rules made it clear that every person is entitled to a determination by a JUDGE that there exists cause to charge him with a crime before giving due course to any information (the document that charges the accused with a crime). Previously, judges relied on the determination of probable cause by the Public Prosecutor (District Attorney to those of you from the United States of A) even though the Philippine Supreme Court had already expressly declared the right to be of a constitutional nature.
Believing that this imposed an additional burden on the poor, overworked and underpaid judges, I took up my beef with former Court Administrator (later Commission on Elections Chairman and subsequently Solicitor General) Alfredo Benipayo who patiently explained that the right could not be denied any accused under the constitution.
Once the word “constitutional” is mentioned, any further argument is negated, so I shut up and went to work determining probable cause in every information that came my way.
The determination of probable cause must be made by the Judge before he issues a warrant of arrest (based on the records transmitted to the Court from the prosecutor) or any other process that might bring the accused into the custody of the Court. If the Judge is not satisfied with the prosecutor’s findings, he may either require the prosecutor to submit additional evidence or dismiss the case outright. This, even before a warrant is issued.
This is why I take issue with the “Motion for Determination of Probable Cause”.
Since a judge already has the burden of making the determination BEFORE he issues the Warrant of Arrest, the Motion has a dubious place in procedure. The issuance of the warrant carries with it the presumption that the judge had already made a determination that probable cause exists to bring the accused to trial. Giving due course to such a motion would be an express admission that the judge had been negligent in performing his duties and open him up to administrative sanction.
Of course, this should not stop lawyers from filing such a motion should the record of the prosecutor (the record of preliminary investigation) be so wanting in (competent) evidence to establish probable cause. In such cases, though, the judge may once again be open to sanction. This, however, should be the exception, rather than the rule.
THE CONCEPT OF RENT
Newly appointed to the municipal bench, I had the most difficult time determining “reasonable compensation for the use of the premises” in some Ejectment cases where the lawyers failed to discuss the topic beyond specifying a lump sum in their position papers.
Ejectment is the cause of action for eviction. Where the Court finds that a defendant may be evicted, it awards "reasonable compensation" to the plaintiff for the period during which he has been deprived of the use of the disputed premises. Ordinarily, this would be equivalent to rent the plaintiff might have earned had he leased the premises to the defendant or any other party.
Sometimes, when the suit is brought for the violation of a contract of lease, all the Court needs to do is award rentals in arrears. But what if the suit is filed on some other basis than a written contract?
I first brought up this quandary to an expert on Civil Procedure during one of the seminars intended to enhance the knowledge of members of the judiciary and was rewarded with a brusque, “You have to find your own method!”
So off I went to find “my own method”. Poring over the Corpus Juris Secundum, I found this little gem;
“Interest bears the same relation to money that rent does to land.”
Previously, my feeble mind had failed to relate interest with rent. Also coming to my rescue was the ancient Velayo’s Digest (1966), from whence came this contribution:
“And in the absence of any other evidence the assessed value should be considered.”
These two maxims thus allowed me to come up with what I proudly call, “The Navarro Rule of Thumb in fixing reasonable compensation.” Well, that’s what I call it, even though no one else is aware of it.
Where the exact amount of reasonable compensation for the use of the land is not thoroughly discussed by the parties, I take a look at the assessed value in the Tax Declaration of the land or the premises (if there is one). I then fix reasonable compensation at the legal rate of interest of 6% per annum.
Interestingly, many Rent Control Laws worldwide have fixed the legal rate of interest as the maximum allowable rent for a contract of lease (that's what made me crack open the CJS). In ejectment cases, however, I use the legal rate of interest to determine fair compensation.
For those of you who wonder if it shouldn’t be set at 12% per annum, remember that the rate of 12% in the Philippines is for loans or forbearances of money. Otherwise, it should only be 6%. The rate of 12% would best be applied on rentals in arrears or on the amount of compensation granted by the Court itself when the judgment becomes final.
DURA LEX
One of the most enduring (pardon the pun) Latin axioms in law is DURA LEX SED LEX. It literally means, “The law may be hard (harsh) but it is the law.”
We all know that DURALEX has been appropriated by a glassware company as a brand name for their unbreakable dinnerware.
This inspired a law professor during my Bar Review to come up with his own Latin axiom using another brand name that’s better known for its resistance to heat rather than its indestructibility.
His axiom? DURA LEX PYREX.
The law may be hard, but it may be broken. ;-p
SCILICET
To a layman, the S.S. in a legal document may inspire awe and wonder at its formality. Surely, such initials must mean that the document itself could spell the difference between life and death. I've even heard people refer to an affidavit as the person's "Sworn Statement", TO WIT; "He stated in his S.S. that...."
Well, that's all it means, really. The S.S. in a legal document stands for scilicet, Latin for... “TO WIT.”
Thus, the example above means the document has been executed in the Republic of the Philippines, to wit, or more particularly in, the City of Cebu.
It does nothing more than establish the location of the document’s execution and, well, make the document look legal. A failure to include that does not invalidate the document.
Nothing to it.
FAILURE OF LOGIC
Sitting on the bench one clear motion day, I wasn’t quite prepared for one of the strangest motions I had ever come across.
“Comes now, the plaintiff, unto the Honorable Court, most respectfully manifests that the defendant has fully complied with the judgment…, wherefore, in consideration thereof, it is most respectfully prayed of the Honorable Court, to DISMISS the instant action.”
That prompted me to whip out my cellphone (still on the bench, but out of sight, naughty me) and SMS all my lawyer friends.
“Atty UV s askng 4 dismisal o case c oredi won & wer judgment complied!”
Prompt reply from what some lawyers would call a MERE law student, “Ka stupid! Dosnt make sense!”
Enough levity for one afternoon. You’d think that would be the end of it, but no! It happened again. Twice.
Thankfully, none of the lawyers involved came from my alma mater, the University of San Carlos, nor from the school I teach in, the University of Cebu (we don’t even have seniors yet). You can be sure I mention this whenever I can to my students.
Mi compañeros, if you don’t want judges to text all their lawyer friends about you while they hear your motion, make sure you NEVER, NEVER make such a horrible mistake. It not only shows a failure of logic on you part (Why on earth dismiss a case you’ve already won?), it also shows you don’t know jack about execution! For a practitioner, failure to understand execution is FATAL to your career. Well, maybe not, but embarrassing to say the least and a potential loss of millions.
Learn to submit, or ask for, an ADMISSION OF SATISFACTION OF JUDGMENT.
LEX LECES BACHELERES
Going over a friend's resumé, I read that he had been studying for a degree in "Lex Leces Bacheleres."
My knee jerk reaction was to call up and demand an explanation.
Where'd the heck you get this "Leces" thing?
The answer was nothing short of shocking. "I got that from a credible source, a lawyer."
Holy cow! Do some lawyers actually believe their Ll.B. stands for something that as far as I can figure, means "Legal Milk of Lecherous Bachelors"?
Gentlemen, check the acronym. Capital L, lower case l, period, capital B period. Ll.B. Two words only. Legum Baccalaureus. Bachelor of Laws. "Legum" is the genitive (i.e. possessive) plural of the noun "lex", hence Ll. instead of just one L.
Now I'm sure that the very lawyers who believe in this "Leces" myth are the very same ones who are wont to put Ll.B. (they would probably prefer L.L.B.)after their names when presented in a formal listing. Thus you would see;
John Doe, M.D.
Pearly Gleam, D.D.M.
Leces Bachelor, Ll.B.
Well, that looks alright, until you consider that the presumption is you haven't passed the Bar Examinations if you only have the acronym of your degree after your name.
Messieurs Leces, allow me to introduce you to "Esq." Place that after your name and you won't be putting yourself in the same level as a law graduate who has yet to take or worse failed the Bar.
TWO COMMON MISTAKES IN AFFIDAVITS
At the beginning:
I, ________, Filipino, of legal age, single/married and with residence at ___________________, after being SWORN IN accordance with law (use either DULY SWORN, do hereby depose... or SWORN IN ACCORDANCE WITH LAW, do hereby... DULY SWORN IN ACCORDANCE WITH LAW is a redundancy), depose and say, THAT;
Xxxxx.
An Affiant is never SWORN TO. An Affiant always SWEARS TO the truth of his/her affidavit Save SWORN TO for the JURAT (SUBSCRIBED AND SWORN TO before me...), so that this should be:
I, ________, Filipino, of legal age, single/married and with residence at ___________________, after being duly SWORN IN accordance with law, depose and say, THAT;
Xxxxx.
At the end of the factual allegations:
FURTHER AFFIANT SAYETH NOT
What? He swears that the facts set forth in his affidavit have not happened to his knowledge?
Dunno why lots of lawyers make this mistake, but the proper phrase means "AFFIANT HAS NOTHING FURTHER TO SAY." The proper way to end the factual allegations in an affidavit is with
FURTHER AFFIANT SAYETH NAUGHT
NAUGHT is a world away from NOT! So remember to avoid this mistake. ;-)