Wandering Mind and a Tweet

Strained eyes

The fine black and white print of the Rules of Court has robbed what is left of my aided vision. For a moment, It seems like staring into an abstract piece of art contained in a small page of mostly gray and edges of white. Its sheer volume creates some sort of magical effect that jumbles all remnants of memories of the lesson I tried to store. All the meticulous specific steps, logical as it maybe, initially are all jargon and cloudy.  My mind slowly drifted, disengaged from the subject matter before it. Now I find myself constructing these words trying to immortalize the feelings of the moment. One dominant aside from the last bang of Civil Procedure final exam is the Ateneo Human Rights Internship. This has given rise to mix feelings of excitement and anxiety to say the least. For two months, my longest so far, I will be away from the comfort of familiarity and well – comfort.

And in the midst of this wandering mind was a tweet.

There it is an affirmation of the journey ahead. This kind of education that I had since the moment I learned ABC sees itself differently. We are taught that this education is not merely a tool to equip ourselves with the necessary skills to compete in the economy; it is much more than that. It is primarily a work of liberating the self and in consequence, the commitment to use this education for the liberation of others. Such lofty words but it makes perfect sense. That I think, is the meaning and purpose of life - Discover the gift of self and share it to the world especially those who are powerless and voiceless, those who cannot even think for themselves.  

In the internship, we are to choose sectors in which to work with. There are several but I have already decided to choose either the urban poor or labor sector. I do think that my background in economics would do well here and the idea of serving the margins in the urban centers reflects my personal experience growing in the heart of Cagayan.

As the sun sets, I pray that I be sensitive enough to see Christ in the poor that I serve – away from the familiar. I pray that I have the courage to engage and to immerse in the life of the marginalized. And I pray that I be competent enough to use the knowledge of 2 years in law school to aid them in the most committed way. 

Fundamental Roots

2 years into my law school life, mid-time in the ideal 4 year trek, and it seems my gasoline tank is close to empty. That is, the gasoline that drives me to do an extra bit of effort seems to slow as time goes. Just like a child who realized that Santa isn’t real. The lofty law school ideals now reduced into realistic battles with self and professor that we face every day. This is but normal I guess. Economics calls it the law of diminishing marginal utility. In practical wisdom, it might be called growing up. The eyes that once saw beauty now sees meaningless repetition in the books. Being tired is a human and normal thing, especially in an environment that frustration is a daily fact of life.

But in the midst of all of this, we must resist the zombie mentality that is very much pervasive in our domain. The challenge is to consistently ground every moment of our learning into the image that learning the law is learning a new, yet ancient language that speaks of how humanity sees its worth and appropriate what is right and wrong. What is just and fair and all struggles and wars fought in between. It is the language that is still evolving from the moment man learned how to live with others. I guess by conjuring this imagery it brings color, beauty and meaning to the bland black and white monotonic rhythm of law books.

I guess the best way to always bring color to these provisions is to enrich yourself with experiences that help deepen and sharpen why such language is made and how such language operates in the world. And that means going back to the roots, to the basics, to the why, to the faces in which it ought to serve.

And this summer, I am to embark on a journey which I hope will sharpen and deepen my quest for those “fundamental roots”. This is not just a chance to technically learn. This is a rare chance to determine the trajectory of my legal philosophy and most especially, aid in forming my person in this complex Filipino society in the context of legal action. The Ateneo Human Rights Intership Program invitation is a grace. 2 months of life changing experience. 

Debate

My second taste of public debate after almost 7 years! We stand in the affirmative side on the motion that the age of criminal responsibility should be lowered to 12 years old. We lost however, it was a great display of legal wrestle from both teams with lively interpolations and substantial constructive speeches.

I overheard the Deans talking about institutionalizing this contest but in a Moot Court setting which got me all excited. 

Thank you Arven Gogo for the total speech face-lift and team mates Jedyl and Al! 

Justice Sotomayor

"The key to success is continually maintaining an ever-present curiosity." 

2nd Year Law School Tips

I can attest to the general observation that after your freshmen year in law school, the pace of time seems to accelerate. Now, my second year in law school is about to end and junior year then begins (if all will go smoothly).  

Freshmen year is seen as the year of the curve. This is when habits form and adjustments occur. This is the time that you have to discover that particular rhythm and style of study that works for you. Once that is discovered, the key to success is already in your hands as so they say. In my journey in law school, these are several things I've discovered along the way that has worked for me.

1. Have daily specific targets. I make it a point to quantify the number of pages I have to read in a day in order to complete a book in a certain span of time. This is really helpful for me. A 300-page book can be digested to as short as 10 to 15 pages of daily reading. The basic idea is to know what to read in a daily basis. Normally the big subjects are given prime time daily readings.

2. Never wait until the week before the exam to review. Make sure to allocate intensive review weeks before the exam week. This is what one of our justices keeps on repeating. Never cram and never wait for the last minute. As far as the common mind is concerned, cramming is not that helpful. Repetition on the other hand builds retention.

3. Note taking in a Codal notebook. This is a tip I got from a new lawyer. I mounted photocopied codal provisions on one side of the notebook. The space left is for the jurisprudences and notes for that particular codal provisions. This is really helpful since in one glance, I can see the law itself and its jurisprudence and principles.

4. Past exams. Past exams are tremendously helpful. It does not only aid you in framing your answer, it also gives you an idea of the more important provisions which professors emphasize.

5. Nothing beats passion.  Law is school is a frustrating experience for one. Oftentimes, hard work does not necessarily mean success. A lot of factors have to be considered. However I did come to realize that the key determining factor is passion. It is that inner source of energy and motivation that propels us to study more even in the face of failure. That bigger-than-your-ego purpose for studying law is the spirit that brings meaning and life to the hard black and white print of the law.

In sum, just have fun. Looking forward to meet the new batch of novices of the Study of Law. 

Practical Student Leadership in Campus Organizations

Transition season is on. This is my attempt to contribute to that transition when another school year enters and so with it, the new set of students who, despite all the demands and pressure, chose to throw their hat in the ring.

The following are 5 things I’ve learned in my experience as a student engaged in student governance and leadership in college. These are statements of experiences and general ideas which hope would provide some meaningful help for the next generation of movers in our out of student organizations.

So let us begin.

1. HAVE VERY CLEAR GOALS FROM THE START. This is the most important thing and the first you must secure. Knowing what you want to achieve – exactly what you want to achieve. As we already know, it is the goal that will rally the people and the rest falls into place. However the challenge now common to most organizations is how these goals are articulated and mapped out.

Questions rise such as; does this resonate to the needs of the times? Are these realistic goals? Are these strategic? These are legitimate questions that student leaders must face and answer even before they officially take office. The common denominator of the answer should be the measurability of the goal. From the beginning, establish measurable goals and success indicators to know how you are fairing. Having a lofty vision reduced into manageable and actionable chucks of measurable indicators of success makes the whole work more grounded and realistic. This is a more reliable basis for measuring your productivity than by subjectively surveying the impression of your leadership. Just imagine, by the end of the semester you can objectively grade your performance by just dividing the number of achieved goals over all the goals for the semester. Here are some tips on setting very clear goals:

            1. Do stakeholders consultation first

2. Treat planning as a project in itself which means INVEST on it.

3. Make the whole process public.

4. Post the output in a visible place in the office.

From my archive, this is an example of an action plan layout:
http://www.scribd.com/doc/48730184/New-CSG-Strategic-Planning

2. ORGANIZE STRUCTURES AND SYSTEMS TO SECURE THE GOALS. Once the goals are measurably articulated and agreed upon by all stakeholders, the logical next step is its execution. Project implementation is one bulk of work that student leaders should see more as a work of science. Emphasis has consistently been given to the individual leadership qualities of project players as the key determining factor which would spell the difference between a successful project from a lousy one. Though this is very important, it is also equally important that organizational leaders should also give emphasis on the structural influences that also affect the quality of the implementation. That is why structures and systems should be designed to better facilitate the implementation of outputs.

How does this spell out in actual actionable terms? First, give emphasis on personal and group autonomy. Research has revealed that the best incentive for cognitive work (which is substantially the work students leaders do) to be more productive is autonomy – a sense of ownership and space for personal initiative. Let committee leaders form their own working group with little interference as to who they select. Give them the targets and let the means to achieve it be their creative playground. Also give emphasis to support groups. These are groups who never engage in the implementation but support the implementers. These are the food committee, the finance committee, and other logistical support group. By having these groups, front line implementers just have to focus on the implementation itself. Let the information dissemination and other incidental work be done by these groups.

3. APPLY THE PARETO PRINCIPLE. There is an old-aged principle which holds that 80% of occurrences or outputs come from 20% of the causes. This is also called the 80-20 rule or the vital few rule. This principle can be best applied when we chart what or who are the 20% of an organization – the people – the assets – the resources.  This is most fitting when we understand that our limited resources limit our reach hence strategic targeting and positioning of our efforts can maximize the impact of our limited resources. Let us now translate this into actual student organizational work. For example if you are in the work of information dissemination, you do not seriously have the resources to fully blast information to every single student. What is rational is to create a database of roughly 20% of your constituency who you think is the most “connected or influential” students. Once they are given the information, they naturally spread it themselves. Also in terms of systems, by identifying bottle necks in project implementation and evaluation flow and by simply tweaking at the margin; this would result to greater efficiency. What does that mean? By identifying unnecessary signatures and creating a one stop rack where all project papers can be physically monitored can be of great help in tracking progress.

Also, this is where core teams also come into importance. This is so since the bulk of the team normally experience what economists call the diminishing marginal utility. As the time passes, bit by bit people disengage from the organization for several reasons we have no control of. Given this fact, it is essential to identify the 20% most committed teammates that will become the influencers and leaders of the organization. Identify these from the very start and hold this together. This spells success or failure.

4. BUILD TRUST. In view of the students or the general constituency, it is vital that trust be established. Without it, projects or services simply fade into infectivity and no one seems to appreciate the effort. Trust is earned and this can be done when the leadership truly focuses on accountability and transparency. Simply put, the students trust their leaders if they know they are doing the right thing. The first step here is the structure in which they can know what the leadership is doing and channels in which they can hold the leadership accountable. Here are some concrete initiatives that can build trust.   

1.       Monthly expense report to the public

2.       Monthly Presidential public report (be it infographic posted online)

3.        Minutes of the meeting online publication

4.        Absent officers are posted online and reason for their absence with picture and contact detail.

5. BUILD PARTNERHSIPS. Synergy increases the impact of your efforts. Early on, start scouting for possible partnerships for the projects you wish to implement based on your concrete and measurable goals. One example I can share is how a university-wide tutorial can bring about greater participation. Recognizing that the most capable and direct implementers of a tutorial program are the co-curricular organization, the central government proposed to do all marketing work and it also created an incentive plan for all tutors such as freebies and snacks plus an added incentive for scholars by having the tutorials credited as part of their service duty. With this simple umbrella scheme, the university-wide tutorials produced one the greater turnout in its history.  The simple recognition of who can best implement and provide proper incentives that will benefit all brings about greater impact.

This is not necessarily a check list. This is my simple attempt to capsulate into 5 general ideas the things I have learned in my student organizational leadership experience in college. This is intended to give a general framework of thinking which is grounded on the belief that developing leadership qualities are not enough; these traits should be transformed into a system that breeds other leaders which eventually will strengthen the entire organization. The idea of creating structures that influence output and behaviour is already a well-established science. The challenge really is how even in our formative years in college, we get to have a grasp of its significance and apply it in our immediate circle of influence and that does not necessarily only mean our organization – it may also mean our lifestyle.

Vocation to Skill

I had the chance to talk to one of my close friends in college who is about to make that confusing and crucial discernment I think we all post-grad students had been through – choosing path after college. It was a good one hour of conversation. Several points were formed in the course that I guess it is worth sharing.

One thing we realized is that we are blessed to specifically identify the kind of life we want to live. The passion that is sometimes elusive to many is quite determinable in our lives thanks to years of immersion and engagement. We realized that passion is really constant. It is there inside us that energize us to get out of bed and seize the day. We realized that the passion we identified has consistently manifested itself in our decisions, in our commitments and our dreams. This is a good thing. However, in this discernment, it is likewise crucial to be deliberate in developing real skills that would translate those passions into concrete actions and results in the world. We might have an overwhelming passion for something but it remains internal, something abstract, something which is only a potential unless we have the skill to translate it into work and results. I have identified that for myself that the way for me to manifest my passion for development is through the study of the law and all the skills that comes with it. Thus, in the next years after college it is important to be really deliberate in our effort to deepen our knowledge and sharpen our skill base.

1. The best way to do this is to articulate first how you see yourself in 10 years based on your vocation.

2. Identify your present skill sets in relation to that vision

3. Identify the skills you need to improve still based on that vision 

4. In between the present skill and the skills that needs development is fertile ground. 

5. Make a skill development plan that targets the gaps which means the present skill that you want to improve and the new skill you want to acquire and base your decisions from there. 

6. Immerse yourself with activities that enhances those needed skills 

Jasaan and a Truck

For the past months, I gave several talks on basic leadership and organizational development for student organizations. This has become a ministry of sorts for me. The experience through the years in student government has helped me appropriate my own theory and direction in these affairs. It is such a great privilege to be given such opportunity to share personal insights appropriate for my peers.

Economics soc from Ernesto Neri

In one occasion, I went as far as Jasaan, Misamis Oriental to share some thoughts on Servant Leadership to the Economics Society during their community building. It was the first time I visited XU's sea-side property in Jasaan. It was designated to the Marine Biology Department as their sea-side base for their marine studies. It has all basic amenities such as living quarters and even sea side eating huts. I also met student leaders of other colleges in the city. They were the ones who facilitated the activities of the whole event. The interesting part I should say (As far as I experienced during the event) was the means of transportation going back to the city. It was large city-owned utility truck which accommodated 30 strong backs. With the wind in our faces, we got to appreciate the country-side and the city in new wide open eyes with 360 degrees view- literally. It was one very meaningful and fruitful Sunday afternoon.

Thank you Econ Society :D

New Specs

After 6 years of the same old frame-less specs, I welcome this new "ninoy" frame for the future and beyond.

2012: The year end review

As an annual tradition, I would like to recall and reflect upon the major highlights and events that shaped my 2012.

As a start, 2012 was a transition year. It is the times were learning curves, relationships, and world views were put into focus.

I finally finished a whole school year in the College of Law. It was an experience that stretched my intellectual muscle but I can fairly say that I did well if grades would be the sole indicator. It made me realize that the most difficult part in law school is the habit forming period – that is the freshman year. This is essentially where you put up a strong foundation in terms of study habits, perspectives, associations, and world view in the study of the law. Also, this is the time were I could affirm the decision of entering Law school, forgoing all other opportunities at this point in my life was the right decision. The motivation of my study is traceable to threads of experiences going as far back as grade school and this just fuels me to do good even more.  

In a way, this is also a year where I appropriated my sense of love and care to people. I realized that building relationships is no joke. It is not random but it should be determined. It takes a core understanding of yourself to strengthen the bonds of friendships to all people that you have the honour to meet and befriend.

XUCLA Internship. Also this year marks the start of my internship of the Xavier University Legal Assistance. This is a manifestation of my desire to build an alternative law career in the future. My blog is scattered with entries relating to this engagement. I also went to CARAGA region for the first time. It was an amazing place. A whole new world opened up before me with amazing and exotic natural wonders.

Talks talks talks. I thought before that once I’m done with my extra-curricular engagements in undergraduate school, I would also graduate from “giving talks”. I am quite honoured that till now, networks of friends and student leaders still ask me to give a sharing or two about things that I guess I have a deep grasp on – student governance. This topic that I keep on sharing, I hope would evolve into something more relevant and action oriented as my experience broadens.

Honour to share academic tips to freshmen. I consider it a great honor to talk before the freshmen year on academic tips in law school. This is really consider a highlight because I felt unfit to even prepare the talk.

New Neighbours. Having sendong survivors as neighbours brought our whole family into a deeper appreciation of life and what it is to rebuild. Our home in Indahag as attracted several children where some of them plays there and works there, thank you in part of my auntie who is very friendly to children.

Complete Christmas. Nothing beats a good Christmas celebration with a complete family. My brother went home for the holidays and boy did we celebrate.

We enter 2013 more hopeful and more determined to do more, love more, and serve more.  

2011:http://republikaneri.blogspot.com/2011/12/2011-year-end-review.html

2010: http://www.republikaneri.blogspot.com/2010_12_01_archive.html2009: http://www.facebook.com/note.php?note_id=2305817058952008: http://republikaneri.blogspot.com/search?updated-min=2008-01-01T00:00:00-08:00&updated-max=2009-01-01T00:00:00-08:00&max-results=502007: http://republikaneri.blogspot.com/2007/12/bias-year-end-review-2007-my-life-year.html2006: http://republikaneri.blogspot.com/2006/12/happy-new-year.html

An American election and a Kagayanon Mall.

They say it is the most wicked semester in the law school cycle.

Tomorrow, classes officially starts and the intensity and rhythmic life of a law student once again is set into proper motion. The semestral break did at least give a couple of breathers for me. I need that so much for the battle ahead. For one, the world’s attention was fixed into America’s Presidential elections. This political exercise an ocean away quite has a personal consequence in me. It reaffirmed my fascination on political action and organization as well as the journey of Barack as activist to world leader which has a subtle contribution to the reason to the way I see things. Obama’s emphasis on the importance of individual advocacies organized into one strong political force can move mountains and break the inertia of politics as usual.  Now going back home, a huge mall sprung out from the barren lands of the “city business district” which signaled a new age of shopping and leisure experience. The presence of this mall really does contribute to a sense of “material progress” for the citizens and with it the silent yet visible sense of smugness for some. Traffic is more terrible than ever and it seems this is just the beginning of a great commercial expansion without the roads expanding as well as the discipline that must come with it. In my case, life has become a lit bit more complicated. Considering the manageable walking distance between my crib and the mall, its numerous first-time-in-the-region brands are like magnets tempting me to spend and try. My quest to simplify life is more relevant now with a back drop of a diversifying city.

So I guess these are the two things that refreshed me during the break aside from the usual personal rejuvenation rituals such as exercise and a great sleep – an American election and a Kagayanon Mall.  

The semester is getting a bit more interesting now. . .

Legal Outreach

Last September 15, 2012, I together with the 4^th year Continuing Legal Education Program Class went to the Libona Legislative Hall to conduct what we call a “legal outreach”.  With 5 lawyers and a team of senior law students, the team were able to cater to the basic legal needs of the people. As I observed, the most basic concerns they have are clerical corrections on important documents, notarization, and land issues.
(photo by Jessica Tulang-Tomolin)

The Difference between Motion to Quash and Provisional Dismissal

The Supreme Court, in a recent case, had the occasion to differentiate motion to quash and provisional dismissal, two seemingly confusing processes in the 2000 Revised Rules of Criminal Procedure in the case of Los Banos vs Pedro (G.R. No. 173588 April 22, 2009)

The Court said through Associate Justice Brion: 

          a. Motion to Quash

A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the criminal complaint or the criminal information filed against him for insufficiency on its face in point of law, or for defect apparent on the face of the Information.The motion, as a rule, hypothetically admits the truth of the facts spelled out in the complaint or information.  The rules governing a motion to quash are found under Rule 117 of the Revised Rules of Court.  Section 3 of this Rule enumerates the 
grounds for the quashal of a complaint or information, as follows:

(a)  That the facts charged do not constitute an offense;

(b)  That the court trying the case has no jurisdiction over the offense charged;

(c)  That the court trying the case has no jurisdiction over the person of the accused;

(d)  That the officer who filed the information had no authority to do so;

(e)  That it does not conform substantially to the prescribed form;

(f)  That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

(g)  That the criminal action or liability has been extinguished;

(h)  That it contains averments which, if true, would constitute a legal excuse or justification; and

(i)  That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

b. Provisional Dismissal

On the other hand, Section 8, Rule 117 that is at the center of the dispute states that:

SEC.8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprison­ment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived.  With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.

A case is provisionally dismissed if the following requirements concur:

1) the prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of  his case; or both the prosecution and the accused move for its provisional dismissal;

2) the offended party is notified of the motion for a provisional dismissal of the case;

3) the court issues an order granting the motion and dismissing the case provisionally; and

4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.

In People v. Lacson, we ruled that there are sine quanon requirements in the application of the time-bar rule stated in the second paragraph of Section 8 of Rule 117. We also ruled that the time-bar under the foregoing provision is a special procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused.

An examination of the whole Rule tells us that a dismissal based on a motion to quash and a provisional dismissal are far different from one another as concepts, in their features, and legal consequences. While the provision on provisional dismissal is found within Rule 117 (entitled Motion to Quash), it does not follow that a motion to quash results in a provisional dismissal to which Section 8, Rule 117 applies.

A first notable feature of Section 8, Rule 117 is that it does not exactly state what a provisional dismissal is. The modifier “provisional” directly suggests that the dismissals which Section 8 essentially refers to are those that are temporary in character (i.e., to dismissals that are without prejudice to the re-filing of the case), and not the dismissals that are permanent (i.e., those that bar the re-filing of the case).  Based on the law, rules, and jurisprudence, permanent dismissals are those barred by the principle of  
double jeopardy, by the previous extinction of criminal liability, by  the rule on speedy trial, and the dismissals after plea without the express consent of the accused. Section 8, by its own terms, cannot cover these dismissals because they are not provisional.  

A second feature is that Section 8 does not state the grounds that lead to a provisional dismissal. This is in marked contrast with a motion to quash whose grounds are specified under Section 3.  The delimitation of the grounds available in a motion to quash suggests that a motion to quash is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash, not any other remedy.  Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy.  A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain.

A third feature, closely related to the second, focuses on the consequences of a meritorious motion to quash.  This feature also answers the question of whether the quashal of an information can be treated as a provisional dismissal.  Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the consequences of a meritorious motion to quash. Section 4 speaks of an amendment of the complaint or information, if the motion to quash relates to a defect curable by amendment.  Section 5 dwells on the effect of sustaining the motion to quash - the complaint or information may be re-filed, except for the instances mentioned under Section 6.  The latter section, on the other hand, specifies the limit of the re-filing that Section 5 allows – it cannot be done where the dismissal is based on extinction of criminal liability or double jeopardy.  Section 7 defines double jeopardy and complements the ground provided under Section 3(i) and the exception stated in Section 6.

Rather than going into specifics, Section 8 simply states when a provisional dismissal can be made, i.e., when the accused expressly consents and the offended party is given notice. The consent of the accused to a dismissal relates directly to what Section 3(i) and Section 7 provide, i.e., the conditions for dismissals that lead to double jeopardy.  This immediately suggests that a dismissal under Section 8 – i.e., one with the express consent of the accused – is not intended to lead to double jeopardy as provided under Section 7, but nevertheless creates a bar to further prosecution under the special terms of Section 8. 

This feature must be read with Section 6 which provides for the effects of sustaining a motion to quash – the dismissal is not a bar to another prosecution for the same offense – unless the basis for the dismissal is the extinction of criminal liability and double jeopardy. These unique terms, read in relation with Sections 3(i) and 7 and compared with the consequences of Section 8, carry unavoidable implications that cannot but lead to distinctions between a quashal and a provisional dismissal under Section 8. They stress in no uncertain terms that, save only for what has been provided under Sections 4 and 5, the governing rule when a motion to quash is meritorious are the terms of Section 6.  The failure of the Rules to state under Section 6 that a Section 8 provisional dismissal is a bar to further prosecution shows that the framers did not intend a dismissal based on a motion to quash and a provisional dismissal to be confused with one another; Section 8 operates in a world of its own separate from motion to quash, and merely provides a time-bar that uniquely applies to dismissals other than those grounded on Section 3.  Conversely, when a dismissal is pursuant to a motion to quash under Section 3, Section 8 and its time-bar does not apply. 

Other than the above, we note also the following differences stressing that a motion to quash and its resulting dismissal is a unique class that should not be confused with other dismissals:

First, a motion to quash is invariably filed by the accused to question the efficacy of the complaint or information filed against him or her (Sections 1 and 2, Rule 117); in contrast, a case may be provisionally dismissed at the instance of either the prosecution or the accused, or both, subject to the conditions enumerated under Section 8, Rule 117.

Second, the form and content of a motion to quash are as stated under Section 2 of Rule 117; these requirements do not apply to a provisional dismissal.

Third, a motion to quash assails the validity of the criminal complaint or the criminal information for defects or defenses apparent on face of the information; a provisional dismissal may be grounded on reasons other than the defects found in the information.

Fourth, a motion to quash is allowed before the arraignment (Section 1, Rule 117); there may be a provisional dismissal of the case even when the trial proper of the case is already underway provided that the required consents are present.

Fifth, a provisional dismissal is, by its own terms, impermanent until the time-bar applies, at which time it becomes a permanent dismissal.  In contrast, an information that is quashed stays quashed until revived; the grant of a motion to quash does not per se carry any connotation of impermanence, and becomes so only as provided by law or by the Rules.  In re-filing the case, what is important is the question of whether the action can still be brought, i.e., whether the prescription of action or of the offense has set in.  In a provisional dismissal, there can be no re-filing after the time-bar, and prescription is not an immediate consideration.

To recapitulate, quashal and provisional dismissal are different concepts whose respective rules refer to different situations that should not be confused with one another.  If the problem relates to an intrinsic or extrinsic deficiency of the complaint or information, as shown on its face, the remedy is a motion to quash under the terms of Section 3, Rule 117.  All other reasons for seeking the dismissal of the complaint or information, before arraignment and under the circumstances outlined in Section 8, fall under provisional dismissal.

In a State of Anaesthesia

This coming September 21^st, our nation will commemorate the 40^th anniversary of a peculiar yet defining moment in our nation’s history – the declaration of martial law[1] by the late strong man, President Ferdinand Marcos.

I only know this period from documentaries, history books and some personal accounts by my parents.  Now that we are studying the law, it would be fitting to see this part of history in its legal dimensions. Bernas, S.J. in his 2009 Edition of the 1987 Constitution of the Republic of the Philippines: A commentary lucidly summarized the jurisprudential legacy of martial law:

1. Aquino, Jr. v. Enrile[2]. The court essentially validated the proclamation of martial law on the basis of continued rebellion and the said proclamation 1081 had merely placed the fundamental law “in a state of anaesthesia, to the end that the much needed surgery to save the nation’s life might be undertaken.  

2.Aquino, Jr. v. COMELEC[3]. This case involved a petition for prohibition seeking the nullification of presidential decrees calling for a referendum on February 1975. The court held that the President does have legislative powers by virtue of him being the administrator of martial law and since he alone can convene the interim National Assembly which he has not yet convened; he alone has the active legislative authority.

3. Aquino, Jr. v Military Commission No. 2.[4] The court held that under the exceptional demands of martial law, the conferment of military tribunals with jurisdiction to try civilians is necessary for the attainment of the objects of martial law.

4. Salidad v COMELEC.[5] The court held that the President may, under the extraordinary conditions of martial law and of the government under the transitory provisions, may propose amendments to the constitution in the absence of a grant of such constituent power.  

With the decision in Sanidad vs Comelec, the main lineaments of pre-1987 Philippine marital law jurisprudence were drawn: (1) the martial law proclamation of 1972 was validly made on the basis of an existing rebellion; (2) the imposition of martial law carried with it the suspension of the writ of habeas corpus; (3) the martial law administrator could legislate on any matter related to the welfare of the nation; (4) he could create military tribunals and confer on them jurisdiction to try civilians for crimes related to the purpose of marital rule; (5) in the absence of any other operative constituent body, the President could even propose amendments to the constitution. All of the above, moreover, are confirmed by the broad grant of power found in Article XVII, Section 3(2), of the 1973 Constitution[6] which, as will be seen below, was itself ratified in a most unique manner. The Supreme Court was to add later that under martial law, claims of denial of a speedy trial were unavailing, and that the suspension of the privilege of the writ of habeas corpus also suspends the right to bail.  

Having this very basic understanding of the tone of jurisprudence which rose out of the marital law era would lead us to appreciate why vast changes on the martial law powers were instituted in the 1987 Constitution. The basis for declaring marital law has been severely restricted and opened for checks on both the legislature and the judiciary. In the long run, the 1987 constitution hopes that the exercise of an essentially police power called the martial law be used only on the most urgent and dire situation and not to serve as means to perpetuate absolute power at the expense of individual liberties.

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[1] Proclamation No. 1081

[2] 59 SCRA 183

[3] 62 SCRA 275

[4] 63 SCRA 546

[5] 62 SCRA 275

[6] All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after the lifting of the Martial Law or the ratification of this Constitution unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or unless expressly or implicitly modified or repealed by the regular National Assembly.

The Case of Barack Obama

I can still recall years ago when I tuned in to CNN and came across a riveting speech of a young senator from Chicago declaring his intention to run for President of the United States. After that, I followed him ever since. This African-American lanky dude with a Harvard Law degree is now the 44^th President of the United States.

This morning, I managed to wake up early to watch Bill Clinton’s big speech before the Democratic National Convention. It is all over the news. Nevertheless, I asked myself, a Filipino, why I am so glued to the politics of the left in the United States?

I admit that Obama’s early life and his road to the Presidency is sort of a living source of motivation (so not his presidency itself. haha! ). Beneath this I guess is my fascination of the evolution of his person. A child with a multi-cultural/racial background –an idealist community organizer turned civil rights Harvard lawyer – junior senator who happens to be African American to the leader of the free world – making history in the process.

I guess I sometimes wallow in envy over their processes in choosing leaders and ideological discourses as compared to ours and getting glued to it sort-of-like creates an alternative political reality for me. I understand that their democracy is much more mature than ours but I am hopeful we have the makings of developing real parties Filipino-style.  Put aside the personality-based traditional parties that we have grown familiar with and let us focus on some and I mean some promising party lists that seriously strive to live as a political party – not personality-based but platform-based. These groups might lead the way to a more mature political discourse in the years ahead. For now, studying those older democracies is one way of understanding our own.

Now going back to Barack, his choice of career I believe is enlightening for all those students of law out there who still try to fathom the social relevance of their studies. He entered Harvard Law, as his interviews suggest, because he understands the power that comes from the knowledge of the law in challenging and reforming unjust structures as nurtured by his experience in the streets as a community organizer. Winning the presidency I guess is just a consequence of such immersed life for public service. 

This story line is a gold mine for me. This is the kind of dream that I strive to live – the dream that at the end of a long day, I can still see myself making sense of what I do because of my belief that this will bear fruits which is something greater than my own self and my own future.    

Playing Lawyer and the Supreme Student Court

Playing lawyer has never been this fun especially when you actually get to apply what you’ve learned to an actual "political" controversy. I am not talking about some court room drama here; this is just my expression of thrill and satisfaction that I get to help argue a side before a court – well, a student court. It is not every day that a sophomore law student can at least have his day in court – again a student court.

I must say that I am amazed at how the Supreme Student Court takes its job so seriously. I mean with real actual pleadings, oral arguments, contempt of court, and so on. It is like the real thing. And they get to argue on constitutionality and those kinds of stuff. Awesome!

Being legal consultant for a branch of student government arguing for the validity of a law it passed is fun!  I am tapped to defend the constitutionality of a law we passed during our administration two years ago which created a quota system for the student elections. What it basically does is to provide a voters’ turn out ceiling and if it is not met, a failure of election shall be declared and new elections shall be conducted. The other side alleges that it violates the students’ right to vote. So of course, I must argue that it does not and I personally believe it does not violate such right at all. I do not wish to lay the arguments in this entry.We already submitted our answers to their allegations and let us see how the proceedings will unfold. 

The value I get from this exciting little internship is the formative value this exercise possesses not just for students of law but for the undergraduate community as well. This kind of zealousness in part of the Supreme Student  Court serves a powerful incubator for future legal thinkers. I strongly recommend that this should be explored and developed even further. Through the workings of the Student Supreme Court, the students can appropriate their own localized understanding of what due process is and what the rule of law is and most importantly, the importance of committed engagement for the attainment of justice – the stuff of change leaders.

Ants and Us

Lately, I’ve noticed a colony of black ants amassing at the bottom of the door frame in our basement CR (Well, that is what I usually notice when I take my time at the toilet). What is peculiar about it is the presence of the colony’s mass of larvae in different stages of development. They practically made that part of the door frame their nursery chamber. I’m no ant expert but this scene has a great amount of insight I could extract and yes, it is surprising that even in moments of sitting on the throne, the boringness would lead me to explore the minute details of my immediate vicinity and behold the story of the black ants.

You might have noticed this before where ants carry white stuff and clump together in an exposed humid area.

Common to our childhood memories might be our insistent desire to play in the yard, get bitten by red ants and our retaliation – their Armageddon. Far from the hated red ants, the black ants I observed in this particular corner have a very interesting order. One ant carries one larva. It is as if each one, by natural instinct, is responsible for the safety and care of their assigned larva. 

Out of curiosity, I gently blew a breath over them and alas, they frantically ran off in chaos much like us during and after the recent quake. However their chaos was an ordered one. It was a frantic orderly exit. What is amazing is the priority they fashioned - they all prioritized their larvae. All those who bear a baby ant were the first to leave. I even noticed that even the heavier almost fully developed larva had to be carried off by a group of ants. They all came out in ordered fashion. And 2 minutes later, all the white stuff where gone just because of that sudden change of air pressure I caused. What remained are those frightened ants that carried nothing. All the larvae are now safe inside the colony.

In the silence of the CR, it dawned on me how this simple observation is so reflective of our own. Though we all know that they are all sisters equal before one mother queen, these blind social insects know their individual and specialized role. Once given the responsibility to nurture a larva, they make sure that it is first to be secured for they know that what they bare is the future of their colony and of their kind.

So us Filipinos, social as we are, the recognition of our innate responsibilities to the nation is paramount to our rise and survival. It is not that we take shelter with our responsibilities when disturbances come but we know the manner in which we execute our role not just during times of crisis but even in moments of still waters. Much more, just like the ants that move in mass with a clear direction, let us also do the same. These invertebrates know that. We have so much to learn from these blind ants, and I hope that in this critical moment of our nation’s history – political and economic, we embrace the responsibility, the larvae so to speak, bestowed on us by ourselves or someone higher with resolve and dedication. And when a blow of chaos and uncertainty descends on us, let us move and carry the hope of the future to safety. 

Half of the Sem

Yes! I can breathe a bit now.  

The midterm exam weeks are finally done with a magnificently challenging brain-contorting closing exam on Criminal Procedure. It was all fun and blood having choices that seemingly looks perfectly the same and a question that is so unassuming that you can’t believe that this is all it. Nonetheless, this is law school – a life run by the reading of thick books and the finding relationships among different concepts of law and life all fuelled by that hope, that simple hope that someday – lawyering above its illusive “prestige” would be a powerful medium to make some difference in the world. This is the choice I made and on its 3^rd semester, things are getting a lot more interesting.

The freshmen are always a source of inspiration in Law School. I really don’t know why. Maybe due to some subconscious fulfilment of sorts but one thing is clear, I just feel inspired to relay what I learned and experienced to a fresh generation whose dreams of becoming a lawyer are taking gentle root.

Also the “event organizing project” also known as the Testimonial Dinner was finally done last July 28. This event has pretty much occupied my mind even before the start of the school year and finally its over. Tradition dictates that every sophomore batch should lead this yearly dinner and unfortunately for me, I am bound by duty to lead it though I can confidently declare that events organizing are the least of my talents. I have to do it and I hope it turned out ok. I am just so thankful for the dynamic team that made the event possible. Speaking about this, I do think that the yearly Testimonial Dinner is such powerful venue for what I can say as “inter-generational inspiration”. More than them thanking or bashing their law professors, their presence and their insights shared posses such powerful nuggets of inspiration for all of those who are still in the rugged journey. Their victory in the bar is our inspiration and challenge.

Now, I am looking forward for the next half of the semester with some sweet engagements in between. It is time to gear up also for the consolidation of efforts to produce the first Xavier Law Journal. This dream is bit by bit transforming into something tangible. Hope to drive more people to join. In XUCLA, I quite excited to apply some legal knowledge on property and land title and deeds on our case study on some land controversies in Dansolihon. Finally for LENTE, it would be a great thing to organize 2 orientation seminars to at least form a body of volunteers to gear up for the 2013 Elections.

Legal Education is undoubtedly very demanding - quite an understatement actually. However, I do not choose to be in survival mode. That would be so stressful and draining and would actually compel me to bring weapons in order to survive. I try to choose the engagement mode. I try all my best to balance application of laws in the social context and the academic study of the law. It is really getting interesting – and more importantly it is becoming more meaningful. I just hope that I can sustain things for the rest of my stay in this life churning school.