DOTC's Jun [p]Abaya takes the train

Pwede ba Abaya, tigil-tigilan mo kami sa mga kagaguhan mo. Bulok yang MRT mo, lahat bulok, sistema, staff, train, riles at IKAW.

Malapit ka ng sugurin ng mga commuters sa bahay mo at itali sa riles.
‪#‎pakiassassinate‬

(This was a Facebook Post of a friend.   I decided to save it for posterity.)

Rotea v. Halili

DOCTRINE:

Subsidiary liability of employer – In enforcing the subsidiary liability of the employer, the court has no other function than to render decision based upon the indemnity awarded in the criminal case. It has no power to amend or modify it even if in its opinion an error has been committed in the decision.

Exemplary Damages; extent to employer – The rule is that exemplary damages are imposed primarily upon the wrongdoer as a deterrent in the commission of similar acts in the future. Such punitive damages cannot be applied to his master or employer except only to the extent of his participation or ratification of the act because they are penal in character. Moreover, exemplary damages may only be imposed when the crime is committed with one or more aggravating circumstances (Article 2230, new Civil Code).

FACTS:

On August 17, 1952, a bus owned by Respondent Halili crashed and Jose Rotea was injured in the accident. The driver Angel Bascon was charged with reckless imprudence resulting to serious physical injuries. Bascon was found guilty and ordered him to pay P513, P3,000.00 as liquidated damages and P10,000.00 as exemplary damages.

Because Bascon was insolvent, the liability fell upon the employer, the Respondent Halili. Rotea made demands, but Halili ignored him so he was forced to file a case against him paying for P13,513.00 as liquidated and exemplary damages, as well as P2,000.00 as attorney's fees.

The trial court ruled in favor of Rotea and ordered Halili to pay:

P3,513.00 – Liquidated damages

P500 – attorney's fees

The trial court did not allow the collection of exemplary damages.

ISSUE: Whether or not the Employer is subsidiarily liable for exemplary damages that were adjudged against his employee.

HELD:

No. The trial court was justified in not requiring appellee to pay exemplary damages there being no evidence whatever that he had any participation in the wrongful act committed by his employee. The rule is that exemplary damages are imposed primarily upon the wrongdoer as a deterrent in the commission of similar acts in the future. Such punitive damages cannot be applied to his master or employer except only to the extent of his participation or ratification of the act because they are penal in character. Moreover, in this jurisdiction, exemplary damages may only be imposed when the crime is committed with one or more aggravating circumstances,

NOYNOY AQUINO FOR 2016!

BUT FIRST HE MUST RESIGN

So people are now discussing a second term for President Benigno C. Aquino III. But how is that possible? Doesn't the Constitution itself say:

The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. (Article VII Section 4 Par. 1)

Therefore, if we want our dear President Noynoy Aquino to rule us again, we have to amend the Constitution right?

Hmmm, I think not.

I think that there is a way around this prohibition and I give credit to Mrs. Raissa Robles and Attorney Mel Sta. Maria for the idea as this is not entirely my own.

But first you may ask the question, what does an ordinary tao like me know? What business do I have interpreting the Constitution? For that I also drew inspiration from Mrs. Robles. Mrs. Robles after all is not a lawyer, but through her impeccable research and down-to-earth and easily accessible writing, she captured the hearts and minds of the people, single-handedly providing a legal basis for the Disbursement Acceleration Program—kicking the proverbial anthill in the process—and pointed out to the world that the Infallible Supreme Court may not be so infallible after all, it was she who unearthed the Section 49 of the Administrative Code, ignored by the top notch legal professionals employed by petitioners, defense and the Court in Araullo vs. Abad. The fact that it was a layman who came up with this inspired praises from her fans, one of whom said:

Attorney Robles,

... [I] guess the lawyers are fuming mad and frothing in the mouth and that’s because you have exposed a long time myth “that only lawyers understand the law”. My father use to tell me that the reason why the law is written in a way that is almost impossible to decipher is because if everybody can understand it they would be jobless.

x x x

Carry on …Attorney (Comments Section)

Later on, renowned Constitutionalist and law professor, Oscar Franklin Tan comes to Raissa's aid saying:

Most striking, however, is the condescension Robles reported over her not being a lawyer, even as people quietly forwarded her arguments. We must never forget that a constitution is a layman’s document intended to, in simple and general language, enshrine a people’s values and aspirations for future generations. In this sense, the fullness of our democracy will only be realized when we see high school students feel empowered to debate a High Court justice. Lawyers cannot style themselves as high priests of a secular religion, but must make law inclusive and integrate it with other disciplines.

We should listen to Prof. Tan, he is a Thought Leader after all.

Mrs. Robles later tries her hand at statutory construction in her blog post, Law dean wonders whether the Supreme Court defined “savings” the way Filipinos understood it when they ratified the Constitution. This post was based on an interview with Atty. Mel Sta. Maria, Dean of FEU law school and noted professor of civil law. In this case, Atty. Mel and Robles talked about the constitution as a document that should be interpreted according to how people understand it, this allows the constitution to be able to respond to the exigiencies of modern life by allowing an interpretation according to how the ratifiers understand it (as opposed to how the drafters understood it), taking into consideration their culture and their values. Applying this theory of constitutional interpretation to the word “savings” in the Constitution Sec. 25(5) Article VI, Atty. Mel claims that the ratifiers understood the word savings as “nilalagay sa baol” or “iniipon”, thus allowing the DAP's impounding of funds for priority projects.

This is indeed a very good school of Constitutional interpretation. Unfortunately, it has not really been tried out or argued before the Supreme Court, as far as I know. What Mrs. Robles and Atty. Mel didn't mention in the blog post however is that this school of constitutional interpretation has already been argued before the COMELEC for the 2010 Presidential Elections by the renowned constitutionalist and former dean of UP, Dean Pacifico Agabin.

The Meaning of the Word, “President”

My contention that President Aquino may indeed run for President again in 2016 hinges on what is meant by the word “President” in Article VII Section 4. Dean Agabin claims that the word President as used in the constitution, in all the sixty-four (64) instances that it has occurred refers to the “sitting President” or the “office [of the president]” It did not refer to “former Presidents” or “deposed Presidents” or “resigned Presidents.” Therefore, if President Noynoy resigns today, he can run for reelection because he shall no longer be the “sitting president” referred to in “The President shall not be eligible for any re-election.” (Art. VII Section 4 Constitution)

Take note that this interpretation worked before the COMELEC in 2009 when Dean Agabin was argued in behalf of his client, the Former President, Movie Star and current Mayor of Manila Erap Estrada, who as we know resigned [albeit constructively] in 2001 (Estrada vs. Desierto).

“The Constitution is a layman’s document, and the laws it contains are not intended to befuddle or confuse those who, having voted for its ratification in 1987, adopted it as the supreme law of the land,... The words ‘the President’ as used therein refer plainly and simply to the incumbent, and there is no need to refer to other outside sources in determining who it is that is referred to in this phrase,” Dean Agabin said.

This theory was successfully argued before the COMELEC, so this should work!

Listen to Dean Agabin argue this point if you are still not convinced

So the way I see it is, President Aquino has to resign first and then run for reelection(?) in 2016. This is my humble contribution to the debate.

Is it worth it?

Of course, there will be the inconvenience that the Vice President will have to take over fr a while and in effect, act as “trustee” of the office for a while, but that is a small price to pay for another six years under Aquino. Maybe that was what Aquino had in ind when he said in his SONA:

Alam po ni Vice President na noong 1987 magkasama kami. May kudeta, na-ambush po tayo doon, at tapos noon eh pangalawang buhay ko na po ito. Hindi natin maiiwasan mag-isip sa mga binubunggo natin, may araw kayang ‘pag sasampa ka sa entablado, may trabaho ring araw–may magtatagumpay bang maglagay ng bomba? Magtatagumpay ba ‘yung mga maiitim na balak ng atin pong mga katunggaling gusto tayong ibalik sa maling kalakaran? At kung dumating nga ang panahong pong iyon, at natapos na po ang ating pangalawang buhay, masasabi ko ho bang, okay na rin? At sasabihin ko po sa inyo, mata sa mata, sa lahat po ng inabot natin, ako po’y masasabing kontento na ako.

Kontento na po ako dahil panatag ang kalooban ko, na kung ako po’y mawala na dito, marami po ang magpapatuloy ng ating tinahak na. Baka iyon lang po talaga ang papel ko–umpisahan ito.

Maybe PNOY was planning to resign all along, for the purpose of running in 2016.

But he listens to his “bosses” – the people – “as a matter of principle,” his spokesman said. The Tito Noynoy must be hearing us now when we say we want him back.

I know that the President values the loyalty of his people, and he is always looking for signs that his people support him. Just last month did he not ask us to wear yellow ribbons to show support? Subjecting himself to another election will once and for all debunk the popularity polls and show that the people are still behind him.

Yes, we should also give Tito Noynoy his second term because we all kno what happens when a president steps down from office, his/her projects being implemented will be put on hold indefinitely or scrapped. Look what happened to Marcos' nuclear power plant when Pnoy's mom came into power, look what happened to GMA's laguna lake dredging project—all scrapped/mothballed. Think of the low opinion foreign contractors will have of us when their contracts are cancelled. Therefore, PNOY should have a second term.

So if you are with me, and you want PNOY to have a second term, let us speak to him as his “bosses”, join me in chanting:

PNOY RESIGN! PNOY RESIGN! PNOY RESIGN! PNOY RESIGN! PNOY RESIGN!

Related Posts:

Keep your Promise PNOY: DAR must stick to the deadline for Hacienda Luisita Distribution

SPS. MALLARI vs. PRUDENTIAL BANK

[G.R. No. 197861. June 5, 2013. 697 SCRA 555]

DOCTRINE:
Unconscionable interest rates – The SC has ruled in the following cases that the interest is unconscionable:  3% and 3.81% per month on a P10 Million loan (Toring vs. Sps. Ganzon-Olan, 2008); 66% per annum or 5.5% per month on a P500 thousand loan (Medel vs. Court of Appeals, 1998) and; 7% and 5% or 84% and 60% per annum (Chua vs. Timan, 2008).  The Court has also ruled affirmed in a plethora of cases that stipulated interest rates of 3% per month and higher are excessive, unconscionable and exorbitant.

Conscionable interest rates – In this case 23% per annum or 2% per month as agreed upon by petitioner and respondent bank is NOT unconscionable.  It is much lower than the above mentioned unconscionable interest rates and there is no similarity of factual milieu.

FACTS:

[Decided 2013] In 1984, Petitioner Florentino Mallari obtained a loan from respondent Prudential Bank in the amount of P300,000.00. It was subject to an interest rate of 21% per annum and, in case of default, a penalty of 12% per annum of the total amount due and attorneys fees equivalent of 15% of the total amount due. This was secured by a Deed of Assignment (DOA) over petitioner's time deposit account. In 1989, Spouses Florentino and Aurea Mallari obtained another loan from respondent for P1.7 million, stipulating interest of 23% per annum with the same penalties in case of default. This was secured by Real Estate Mortgage (REM).

Petitioners defaulted. When computed in 1992, the total debt was P571,218.54 and P2,991,294.82 for the first and second loans respectively.

Respondent tried to extrajudicially foreclose the mortgage. Petitioners on the other hand tried to nullify the mortgage claiming that the Bank imposed onerous terms and conditions and that the bank was unilaterally increasing its charges and interest over and above those stipulated. The Bank claimed that the basis for its computation was all written in the Promissory Notes.

The RTC ruled in favor of respondent bank. CA affirmed.

ISSUE: Whether or not an interest rate of 23% per annum and 12% per annum penalty is unconscionable.

HELD:

No. The Court has also ruled affirmed in a plethora of cases that stipulated interest rates of 3% per month and higher are excessive, unconscionable and exorbitant. thus, the 23% per annum interest rate imposed on petitioners’ loan in this case can by no means be considered excessive or unconscionable. And neither is the 12% per annum penalty charge unconscionable as the counrt found in DBP vs. Family Foods (2009) and Ruiz vs. Court of Appeals (2003).

Gabucan vs. Manta

[G.R. No. L-51546; January 28, 1980]

TOPIC:  Effect of failure to attach stamp to taxable document, instrument or paper.

DOCTRINE:

A taxable instrument, document or paper which does not bear the stamp shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court. The non-admissibility of the document, which does not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed thereto and cancelled." (Sec. 201 NIRC)

FACTS:

The CFI dismissed the probate proceedings for the will of the late Rogaciano Gabucan. The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will and, hence, according to the CFI, it was not admissible in evidence, citing section 238 of the Tax Code, now section 201 NIRC 1997.

ISSUE: Whether or not the proceeding should be dismissed because the will was not duly stamped.

HELD:

No. The CFI dismissed the case and even the motion for reconsideration wherein petitioner was already manifesting that he had already attached the stamp to the original of the will. The CFI erred in declaring that, because no documentary stamp was affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed". Instead, the court should have allowed the petitioner to tender the stamp in order to correct the deficiency. The non-admissibility of the document, which does not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed thereto and cancelled."

MAHINDRA COMING TO THE PHILIPPINES: ITS THE INVASION FROM THE SUBCONTINENT

After the entry of Tata Motors early this year, it seems that another Indian car manufacturer is coming to the Philippines. According to Top Gear Philippines, Mahindra Motors will be coming here, bringing with it a range of Sports Utility Vehicles (SUVs), 4x4s and Pick-Up Trucks.

Mahindra Motors, or Mahindra and Mahindra is famous for being a manufacturer of rugged no-nonsense SUVs, pick-ups and trucks. It was founded in 1945 and one of its early products was a Willy's Jeep with a Peugeot diesel engine in it. One example was featured on Top Gear: The Worst Car in the History of the World. James May in that show described it as a very real contender for the worst car in the history of the world: “. . . [I]s made from hand me down bits . . . It started life as Willys Jeep . . . when the war was over, the Indians decided that they would keep on making it, only with a few alterations. . .” Anyway, May found the car to have a very poor ride, bare interior and sloppy steering, but it's redeeming feature was that it was very cheap. Of course, Mahindra would soon go on to refine its manufacturing processes and improve its products' quality.

Here is a screencap taken from that film.

In other words, Mahindra pretty much started like our car industry: cobbling together owner jeeps and jeepneys with secondhand and refurbished parts sourced from junkyards.

According to the Top Gear report, Mahindra will be testing the waters with the Xylo which is a practical MPV and the Bolero. The Bolero is what I'm really excited about—it looks like a good ol' rough a tumble four wheel drive. The specs confirm it:

Bolero Specifications from Mahindra Bolero

We see that the Bolero is a no nonsense 4x4—Manual transmission, 2.5 Liter Diesel engine, ordinary window winders on some models and look! No power steering on the low end model. Joy of joys. Now, you can truly boast to your friends that you get all the exercise you need from just driving.

Competition

Tata is being imported by the Taj Autogroup and has showrooms in Marikina City, Rizal Province, Davao City and with more showrooms to be opened in Quezon City and in Cagayan de Oro. Mahindra on the other hand, will be imported by an affiliate of the Peugeot distributor (I guess Mahindra and Peugeot go way back), so we should expect to see some competition between the two brands. This is all good because there is nothing better than a bit of healthy competition.

A Tata Manza Spotted on East Avenue, cor. EDSA last July 14, 2014

Picture courtesy of Kristelle Marie Gonzales

The Indians gave us a choice

These cars are competitively priced. They cost less than their Korean and Japanese equivalent, though slightly more than the Chinese and they are of good quality. Plus, they have heritage, one example is the Hindustan Ambassador, they have been making that car for years and it is the darling of Taxicabs—it was inspired by the Morris Oxford, and they have been making it in the same way ever since.

Hindustan Ambassador in a race against other Taxis

Lets look at it from this perspective: Indian cars are like British cars, only tougher. Oh ok, maybe it isn't like that at all, but cars like the Hindustan Ambassador trace their origins to the old Morris. Theirs newer cars like Jaguar and Land Rover, are quite literally British.

On toughness and durability, Indian roads are some of the worst in the world.  I bet their traffic is horrible, the roads are in disrepair.  Their cars have to face extremes of heat and cold, they have to be able to climb steep mountain passes and navigate a maze of urban slums.  An Indian car has to be tough to go through that and simple--you can fix it "with a brick and a piece of string" and a hammer.

I said that Indian cars are competitively priced, so while I can't get the exact price list, the entire suite of Tata cars available for sale in the Philippines is between P550,000 to P750,000. Thats at most P750,000 for the Tata Sumo Gold. Thats a bargain.

Furthermore, China does not really use diesel engines in their cars (trucks like the Foton Blizzard and the JBC are exceptions), but the Indians love diesel, heck they even have a Toyota Vios. Anyway, this is what the Manila Times says about Tata's diesel program:

“TATA Motors is an expert in diesel engines, a result of its trucks predating the brand’s cars by decades. These days, Tata is the planet’s fourth-biggest seller of commercial vehicles. These run on diesel.”

Anyway, Tata is going to export some diesel Manzas here, so that is something to look forward to. Hmmm, I wonder if Tata is going to make buyers sign a contract with buyers prohibiting them from using their cars as Taxis just like Honda, I hope not. They can be the next Isuzu Gemini. Mahindra also has a long tradition of diesel as well, so I'm sure that these two firms, Mahindra and Tata are fairly close to each other in quality

# # #

In other news, the July 22, 2014 issue of Manila Times featured a Filipino-Japan partnership to manufacture electric cars. From what I understand from the report, it seems that this new company is set to assemble/manufacture electric cars here in the Philippines. It also has the option of selling the chassis only. This is a boon for backyard manufacturers—we can have a coachbuilding renaissance using this set-up.

I also hope they go into hybrids, Tesla style, because thats the only way we can popularize eco technology in a roadtrip which involves belting up the Kennon road and the Caticlan Zigzag road as of now.

Update 10/15/14

Mahindra was recently featured in the news.  Apparently, it won a bid to supply the PNP with 560 brand new Patrol Jeeps.  Mahindra won the bid at Php895,000 per unit, or lower than the Php900,000 per unit allocation of the PNP.  PNP is currently conducting tests and if they like it, then they will likely proceed with the purchase:

[Director Francisco Uyami, PNP Directorate for Research and Development,] clarified that the PNP has not yet bought the units and is still subjecting the vehicles to test their functionality and durability.
He said the functionality test of the vehicles began on Monday in Camp Crame and is expected to last for three days including a long distance drive to test the vehicles’ durability.

He added that they were done in dimensional test in Subic, Zambales, which includes speed tests, break tests and ascension tests. Next will be subjecting these to a long distance drive.

The patrol jeeps will be driven for 1,500 km from Manila to Baguio and will be brought to rugged areas in the Kalinga, with a full load of 1,200 kilos representing 13 passengers.

These jeeps are most likely Boleros, like the one I briefly commented on above.  And I expect the Bolero to simply dance through the PNP tests, they having survived worse conditions in India.  Let us just hope that "Daang Matuwid" would carry the day and Mahindra would not need to line the pockets of yet more Directors and Officials, after all, 560 brand new jeeps will go a long way into making the Philippine Police force, a more credible and effective police force.

Again, the Bolero is going to be sold to the Government at P895,000.00.  In other words, that is a great big diesel SUV at the price of a compact sedan.  Not a bad deal.

In other news, it seems that Tata is pushing its Tata Indigo as a livery vehicle.  Again, this is a good move since the areas in which an Indian vehicle is expected to excel is in its durability and reliability

The Tata Indigo Taxi

Source:  Top Gear Philippines

Related Posts:

Tata Motors Coming to the Philippines: But not the Nano :'-(

Hybrid Cars: Will the Philippines have a bite?

PNP Questioned over Award for Patrol Jeeps to Mahindra

Atlantic Erectors, Inc. v. Court of Appeals

[G.R. No. 170732, October 11, 2012,  684 SCRA 55]

DOCTRINE:

Liquidated damages – The parties to a contract are allowed to stipulate on liquidated damages to be paid in case of breach. It is attached to an obligation in order to ensure performance and has a double function: (1) to provide for liquidated damages, and (2) to strengthen the coercive force of the obligation by the threat of greater responsibility in the event of breach. As a pre-condition to such award, however, there must be proof of the fact of delay in the performance of the obligation.

Effect of default – As long as the contractor fails to finish the works within the period agreed upon by the parties without justifiable reason and after the owner makes a demand, then liability for damages as a consequence of such default arises.

FACTS:

Respondent Herbal Cove Realty Corporation (Herbal Cove) wanted to build a a subdivision project somewhere in Tagaytay City. It hired petitioner Atlantic Erectors Inc. (Atlantic) to build the project. The Construction Contract indicated a contract price of almost P16.7Million and to finish building within 180 days. To secure payment in case of non completion of the project, the contract also provides:

ARTICLE IX

FAILURE TO COMPLETE WORK

Section 1: The CONTRACTOR acknowledges that the OWNER shall not suffer [loss] by the delay or failure of the CONTRACTOR to finish and complete the works called for under this Contract within the time stipulated in Section 6, Article IV. The CONTRACTOR hereby expresses covenants and agrees to pay to the Owner liquidated damages equivalent to the One-Tenth of One Percent (1/10 of 1%) of the Contract Price per calendar day of delay until completion, delivery and acceptance of the said Works by the OWNER to a maximum amount not to exceed 10%.

Atlantic was asked to commence construction on July 8, 1996, but eventually, it asked for an extension citing bad weather and delayed turnover of project sites which Herbal Cove granted but ultimately, Atlantic failed to deliver. Herbal Cove terminated the contract on October 3, 1997 and demanded liquidated damages. Herbal Cove also hired another contractor to finish the job. It filed a case with the Construction Industry Arbitration Commission (CIAC). The CIAC found in favor of Herbal Cove but did not award liquidated damages for failure to comply with 15-day notice of termination (provided for in its contract.). The CA awarded liquidated damages.

ISSUE: Whether or not Atlantic is liable for liquidated damages.

HELD:

Yes. The CIAC disallowed liquidated damages because Herbal Cove failed to comply with the rule on notice. However, the contract is the law between the parties and there are provisions in the same contract which provide "the Contractor shall be required to pay the Owner the liquidated damages in the amount stipulated in the Contract Agreement, the said payment to be made as liquidated damages, and not by way of penalty. The Owner may deduct from any sum due or to become due the Contractor any sums accruing for liquidated damages as herein stated." also, "Neither the taking over by the Owner of the work for completion by administration nor the re-letting of the same to another Contractor shall be construed as a waiver of the Owner’s rights to recover damages against the original Contractor and/or his sureties for the failure to complete the work as stipulated." Thus, under the contract, Herbal Cove's right to liquidated damages is distinct from the right to terminate contract.