Five-Time Flunkers May Retake Bar Exams

Law graduates who, after five takes in the Philippine Bar Examinations, were disqualified may find hope in a proposal recently lodged by Congress for the Supreme Court to allow them one more re-examination.

Through House Resolution No. 649, siblings-legislators Cagayan de Oro Rep. Rufus Rodriguez and Abante Mindanao Rep. Maximo Rodriguez Jr. seek the High Court's approval to temporarily suspend the "five-strike rule."  

According to this rule, a bar candidate who fails his first Bar Exam still has two chances, but if on the third try he still flunks, he needs to go back to fourth year law school to get a refresher course in all major subjects before he can be allowed for another two takes.  And if he remains unsuccessful after a total of five tries, he is disqualified forever to take such exams.   

The lawmakers assert that such proposal will give fair chances to those previously disqualified examinees, and would permit them to take a shot at the new version of the Bar Exams, which is the Multiple Choice Question type.

The 2011 Bar Examinations Committee, chaired by Associate Justice Roberto Abad, has been working with law deans and colleges for the exam style of 60% MCQ and 40% essay.  

Knowledge and recall, comprehension, case analysis, and law application will make up the entire examinations, according to reports.  An examinee should, however, ensure to pass the MCQ so as to proceed with the essay or memorandum writing test.  

The MCQ will be 200 items picked out by examiners from 300 items pooled from various topics falling under a major subject.  The Essay Test may consist of answering straight questions about the law and drafting of resolution, memorandum, position paper, or opinion.  Each Essay Test, the reports say, will be read and checked, and re-read and re-checked by a five-man team of examiners.

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High Court Strikes Down Sequestration of Marcoses' Olot Resthouse

In the coastal barangay of Olot in the municipio of Tolosa in Leyte, a highly contested property is found: a 17-room resthouse sitting on 42 hectares of beachfront land, with a golf course, swimming pool, cottages, a pelota court, and a pavilion.  How it became controversial is simple: it is among the properties of the late-strongman Ferdinand Marcos' family sequestered by the Presidential Commission on Good Government as ill-gotten wealth.

Early this month, December 7, 2010, the Supreme Court ordered the return of the Olot Resthouse to the Marcoses.

According to the High Court, an order of sequestration may only issue upon a showing “of a prima facie case” that the properties are ill-gotten wealth, in accordance with Section 26 of Article XVIII of the Constitution.  

Following the case of Bataan Shipyard & Engineering Co, Inc. v. PCGG, 234 Phil. 180, 214 (1987), the SC says that the power to determine the existence of a prima facie case is vested in the PCGG as an incident to its investigatory powers.

As a rule, two commissioners are needed to determine and approve a prima facie case to assure a collegial determination of such fact.

In this case, however, the SC explains, the PCGG did not make a prior determination of the existence of a prima facie case that would warrant the sequestration of the Olot Resthouse, as the sequestration order was issued by mere lawyers/agents of the Commission.  There was also no showing that the lawyers were given the quasi-judicial authority to receive and consider evidence that would warrant such a prima facie finding, the SC notes.

Moreover, there were no evidence describing how the Marcoses acquired the sequestered property, what makes it “ill-gotten wealth,” and how the former president intervened in its acquisition, the SC remarks.

As in PCGG v. Judge Peña, 243 Phil. 93 (1988), the SC reiterates that the powers, functions and duties of the PCGG amount to the exercise of quasi-judicial functions, and the exercise of such functions cannot be delegated by the Commission to its representatives or subordinates or task forces because of the well-established principle that judicial or quasi-judicial powers may not be delegated.

Furthermore, although the Commission issued a letter directing their lawyer-agents to search and sequester all properties, documents, money and other assets of the Marcoses, the SC did not consider it as a writ of sequestration, as what the PCGG asserts, and the resultant sequestration order made by the lawyers/agents cannot be treated as implementing order.

Despite of this setback, the High Court rules that the lifting of the sequestration order is not at all fatal to the government's main case against the Marcoses, because such lifting does not conclude that the sequestered properties are not ill-gotten wealth.  The lifting, according to SC, simply means that the government may not act as conservator or may not exercise administrative or housekeeping powers over the property, and the Republic of the Philippines can be protected by a notice of lis pendens.

A full-text copy of the decision is available for free at:

http://sc.judiciary.gov.ph/jurisprudence/2010/december2010/155832.htm

Source: Republic of the Philippines v. Sandiganbayan (4th Division) and Imelda Marcos, G.R. No. 155832

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Court Acquits Hubert Webb, et al.

"Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce?"

This is precisely the question that the Supreme Court asked itself and answered in an en banc decision dated December 14, 2010, which led to the release from prison of Hubert Jeffrey P. Webb, “Tony Boy” Lejano, Artemio “Dong” Ventura, Michael A. Gatchalian, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez, and Joey Filart -- all accused in the infamous 1991 Vizconde Massacre case.

The legal battle was actually between Hubert Webb's alibi and state eyewitness Jessica Alfaro's positive identification of the criminals.

As far as the lower courts were concerned, Webb failed to bring down the strength of Alfaro's testimony through his alibi, hence convicting him and others for rape with homicide.

The Supreme Court, on appeal, however, took a slower stance and opined that a positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it, because a lying witness can make as positive an identification as a truthful witness can.

The High Court believes that, to be acceptable, the positive identification must meet at least two criteria: (1) the positive identification of the offender must come from a credible witness, and (2) the witness’ story of what she personally saw must be believable, not inherently contrived.  The Supreme Court, however, finds Alfaro to have failed in meeting the criteria. 

Among other things, the SC points out that Alfaro did not show up at the National Bureau of Investigation as a "spontaneous witness bothered by her conscience". She was actually the agency's stool pigeon, and that she merely volunteered to play the role of a witness in the killings when she could not produce a man she promised to the NBI.  Her testimony although full of details was "inherently incredible", according to the SC. 

To establish alibi, the High Court further reasons, the accused must prove by positive, clear, and satisfactory evidence that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.  This is what actually Webb gave the trial court, e.g. travel documents such as passport, domestic and foreign records of departures and arrivals from airports, and other corroborating documents and testimony -- evidences which the prosecution did not bother to refute via presentation of their own impeaching evidence.

The Supreme Court says Webb’s documented alibi altogether thrown Alfaro's testimony into the gutter, not only with respect to him, but also with respect to the other accused. By accepting Webb's defense, Alfaro’s testimony against all involved crumbled down.

The prosecution, the SC explains, failed to deliver the quantum of evidence necessary to convict the accused, which is proof beyond reasonable doubt.  The Supreme Court concludes that in "our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt.  For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one’s inner being, like a piece of meat lodged immovable between teeth."

For a complete decision of the Supreme Court, see http://sc.judiciary.gov.ph/jurisprudence/2010/december2010/176389.htm 

Source: Antonio Lejano v. People of the Philippines G.R. No. 176389

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Are you ready for the MCQ Bar Exams 2011?

A lot of changes had been made in the way Bar examinations are given in the Philippines, aiming to innovate from the traditional style without sacrificing the ideals that have made this future lawyers' entrance test famous for.

The tests, as we all know, are in essay form. From a simple "what-is" type of question that requires a one-word answer to a more complicated, procedural question requiring a lengthy response -- all have to be written in essay using a thick notebook.  Unlike other professional exams we've known or taken, the Philippine Bar Exams take almost a month to finish, and the results, within six to seven months.

Recognizing its "excruciating nature", the Supreme Court of the Philippines, who takes care of this job, has continued to be open-minded to suggestions of variations. So far, it has permitted for a True-or-False exam type and allowed two examiners for each subject to hasten the correction of booklets. Now, the High Court is  bold enough to tackle additional changes for the 2011 Bar Examinations: the most talked-about Multiple Choice Questions (MCQ) and Memorandum writing test.  

On how this is going to be done exactly is still under wraps while the Bar Committee 2011 is still working with law colleges and deans all over the country.  Schedules have been set for a trial run mid of next year, and the syllabi for the 2011 exam coverage have been disseminated and can be downloaded from http://sc.judiciary.gov.ph/bar/announcement/index.php  

According to the 2011 Bar Committee, the syllabus describes a "redefined scope" of the exams that covers "only laws, doctrines, principles, and rulings that a new lawyer needs to know to begin his practice, and was referred to the country's leading reviewers and lecturers before it was approved".  

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Bar Review in Cebu Until March 2011

The Albano Bar Review Center is holding advanced review classes for candidates to the 2011 Philippine Bar examinations in select cities of Cebu, Manila, Baguio, Tacloban, Naga, and General Santos.  The review started on November 13, 2010 and will run until March 13, 2011.  

Led by Dean Ed Vincent S. Albano, the line-up of reviewers include Atty. Jason R. Barlis, Dean Baldomero C. Estenzo, Atty. Ed Vincent A. Albano III, Atty. Zarah R. Villanueva-Castro, Atty. Edwin R. Sandoval, Justice Japar Dimaampao, Atty. Joselito G. Chan, Atty. Benedicto G. Kato, Atty. Teresita L. Cruz, Dean Abelardo C. Estrada, Judge Meinrado Paredes, Atty. Victoria C. Garcia, Dean Reynaldo Agranzamendez, Dean Honorato Aquino, and Dean Ralph A. Sarmiento.  

In collaboration with the University of Cebu College of Law, classes in Cebu City are held in UC-Banilad located in Gov. Cuenco Avenue, Banilad Road.  The Review Center also welcomes law undergraduates. 

The 2011 Regular Pre-Bar Review will soon begin after the advanced review classes end.

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Jason, A Case of Double Jeopardy

Jason got involved in a vehicular collision and was charged with two separate offenses with the Metropolitan Trial Court (MeTC) of Pasig City, Branch 71, for (1) reckless imprudence resulting to slight physical injuries of one victim (First Criminal Case), and (2) reckless imprudence resulting to homicide of the other victim and damage to property (Second Criminal Case).

He pleaded guilty on the First Criminal Case and was penalized with public censure.  By this conviction, he asked for the quashal of the Second Criminal Case on the ground of double jeopardy, but was refused by the lower court.  He elevated this matter to the Regional Trial Court in a special civil action (SCA Case), and then sought suspension of the Second Criminal Case invoking the SCA Case as a prejudicial question.

The MeTC did not act on the suspension motion but proceeded with the arraignment of the Second Criminal Case, which Jason failed to attend.  Because of his non-appearance his bail was cancelled and he was arrested.

At the other side, the respondent victim filed a motion to dismiss the SCA Case on the ground that Jason lost his standing to maintain the suit.  Because of this so-called forfeiture of standing due to non-appearance, the RTC dismissed Jason’s SCA Case.  After a motion for reconsideration became unsuccessful, Jason filed a petition for review on certiorari with the Supreme Court on questions of law, particularly on the issue of double jeopardy.

Questions:

1. Did Jason forfeit his standing to seek relief in the SCA Case when the MeTC ordered his arrest after not appearing at the arraignment in the Second Criminal Case?

2. If Jason did forfeit his standing, is his constitutional right under the Double Jeopardy Clause bars further proceedings in the Second Criminal Case?

Ruling:

The Supreme Court ruled that Jason’s non-appearance at the arraignment in the Second Criminal Case did not divest him of personality to maintain the SCA Case, and that his conviction of the First Criminal Case prohibited the prosecution of the Second Criminal Case by virtue of the double jeopardy principle.

The High Court explained that the defendant's absence only makes his bondsman potentially liable on its bond, and that it could be revoked in the event the bondsman fails to present the accused within 30 days.  The accused retained his standing and, in case of non-attendance (without explanation), will be tried in absentia and could be convicted or acquitted. (Section 21, Rule 114 of the Revised Rules of Criminal Procedure).

According to the Supreme Court, the MeTC is mistaken in finding that the two cases of reckless imprudence are entirely separate offenses using the basis  that the Second Criminal Case required proof of an additional fact which the First Criminal Case does not.

The High Court reasoned that reckless imprudence is a single crime, its consequences on persons and property are material only to determine  the penalty.  The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction  or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts.

Among several jurisprudences cited is the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968).  A portion from the decision in this case reads as:

"[O]nce convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and cannot be split into different crimes and prosecutions."

Source: Jason A. Ivler v. Hon. Maria Rowena Modesto-San Pedro, Judge of the Metropolitan Trial Court, Branch 71, Pasig City, and Evangeline Ponce, G.R. No. 172716

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