Sino ang Bayani?

bayaniMarami na ang nasabi tungkol sa 13th month pay. May mga pabor kay Marcos at may mga pabor sa mga Aquino. Ngunit tila may nakaligtaan ang parehong panig. Basahin hanggang dulo bago magkomento.

Ang 13th month pay ay minungkahi at inakda ni Zoilo de la Cruz, isang abogado galing Bacolod. Ito ay nilagdaan at isinabatas ni Ferdinand Marcos bilang Presidential Decree (PD) No. 851 noong December 16, 1976. Kung mapapansin, ito ay tinawag na Presidential Decree at hindi Batas Pambansa o Republic Act dahil ito ay isinabatas noong panahon ng diktadurya — panahon na tanging ang Pangulo ang may kapangyarihan na magsagawa ng batas dahil ipinasara nya ang Kongreso. 

Ayon sa PD 851, lahat ng manggagawa na kumikita ng hindi hihigit sa P1,000.00 bawat bwan, kahit ano ang katangian ng trabaho, ay dapat bigyan ng 13th month pay.

Matapos ang People Power Revolution, iprinoklama ang Freedom Constitution kung saan ang Pangulo ay patuloy na magsasagawa ng mga batas hanggang sa ang Kongreso ay maihalal at magtipun-tipon sa ilalim ng bagong Saligang Batas.

Sa bisa ng nasabing Freedom Constitution, binago ni Corazon Aquino ang pamantayan ng PD 851 sa pamamagitan ng Memorandum Order (MO) No. 28 kung saan itinakda na lahat ng “rank-and-file” na mga manggagawa ay dapat bigyan ng 13th month pay. Sa madaling salita, tinanggal ang kondisyon na para lamang sa mga manggagawa na hindi kumikita ng P1,000 bawat bwan ang 13th month pay.

Noong 2014, ipinasa ng Kongreso at nilagdaan ni Benigno Aquino III ang Republic Act (RA) No. 10653 kung saan itinaas ang tax exemption ceiling ng mga bonus at 13th month pay mula P30,000.00 hanggang P82,000.

Kabayan, ito ang pinakamahalaga:

Mula PD851 hanggang MO 28 at RA 10653, ang 13th month pay ay ginagawad para sa mga “rank-and-file” na manggagawang Pilipino na nagtrabaho sa loob ng taon ng pagkakaloob.

Ang 13th month pay ay hindi abuloy kundi umento. Hindi bigay kundi pinaghirapan. Kaya kahit ang isang anti-Marcos ay may karapatan sa 13th month pay gayonlamang sa isang anti-Aquino kahit pa ang 13th month pay ay ibigay na tiglilimandaan (may mukha nila Ninoy at Cory, dilawan!)

Sino nga ba ang bayani: si Marcos o si Aquino? O ang uring mangagawa na patuloy na nakikipagdigma laban sa kahirapan at kawalan ng hustisya?

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With contribution from Atty. Nes Patrick K. Señor. Readers are encouraged to conduct their own fact-checking.

Q: Can an Employee Resign by E-mail?

An e-mail resignation letter is considered a functional equivalent of a resignation letter in printed or written form. This is because electronic documents have the legal effect, validity or enforceability as any other document or legal writing; provided that it maintains its integrity and reliability and it can be authenticated (Sec. 7 of the Electronic Commerce Act; Rule 3 of the Rules on Electronic Evidence).

Beyond the form, what is important is that the employee has voluntarily and knowingly dissociated himself from his or her employment due to personal reasons which cannot be sacrificed in favor of the exigency of the service (Virgen Shipping Corp. v. Barragui, G.R. No. 178127, April 16, 2009). In other words, the employee should not have been forced by the employer to resign.

Concomitantly, considering that the validity of resignations had been subject of various court cases, it would be prudent for employers to ask for resignation letters in printed or written form (notwithstanding the validity of resignation via e-mail). It is also highly recommended that the employee be made to appear before a Notary Public to take an oath or affirmation as to such resignation letter.

Note: Legal opinions provided in this blog take into consideration practical and commercial matters apart from what is strictly legal. Furthermore, they are based on general principles which do not necessarily apply to all cases. Considering that laws are interpreted always in the context of peculiar facts, it  would be best to engage the services of a lawyer for one’s particular needs.

For comments and questions, you may reach me at gideonvillarpena@gmail.com

A Call for Referendum

When we continuously protest against the burial of Ferdinand Marcos at the Libingan Ng Mga Bayani even after the Supreme Court dismissed the petitions seeking its inhibition, we are neither disregarding the rule of law nor disrespecting the high court; we are actually heeding it.

The Supreme Court did not say that Marcos is a hero. It simply said that no grave abuse of discretion was committed by the President because no law prohibits the burial of Marcos at the heroes’ cemetery; in as much as the issues involved are moral and political, not legal. In fact, Justice Brion said in his concurring opinion that majority of the justices merely exercised “judicial restraint.”

Thus, we continue to shout for the voiceless victims of oppression because the Supreme Court itself said that it is not the proper judge of the issue. We respect, and ought to respect, the Supreme Court and the rule of law in as much as we must uphold the bedrock of our democracy: sovereignty resides in the People (including the lost, the last and the least).

Hindi ang Pangulo, hindi ang Kongreso, hindi ang Korte Suprema kundi ang taumbayan ang dapat magpasya sa anumang bagay na magbabago sa ating pagkakakilanlan bilang Pilipino.

As suggested by the late Senator Miriam Defensor-Santiago, submit the issue to a referendum. Let the people decide once and for all whether we should #MoveOn or we should #NeverForget.

Dahil hindi ba dapat merong tamang closure para humilom ang malalim na sugat? But then again, some wounds never heal.

The Final Arbiter

In our judicial hierarchy, the Supreme Court reigns supreme. It has, after all, the last word on what the law is; it is the final arbiter of any justiciable controversy (DBP v. NLRC, 242 SCRA 59).

We may then ask, can a decision of the Supreme Court, like the one which allows the burial of Ferdinand Marcos at the Libingan ng mga Bayani, still be overturned?

The answer is yes. Let me count the ways.

First. The Supreme Court may reverse itself upon motion for reconsideration, a remedy provided under the Rules of Court. Thus, in cases like the League of Cities v. COMELEC, the Supreme Court, upon subsequent motions for reconsideration, reversed itself: THRICE.

Second. The Supreme Court, in succeeding cases, may overturn its own decision. A good example that many are familiar with is the case of Morales v. Court of Appeals where the Supreme Court abandoned the so-called Aguinaldo doctrine, a principle that effectively extinguishes an elected official’s administrative liabilities from wrongdoing in his previous term by virtue of re-election.

Third. A decision of the Supreme Court may cease to be effectual when an act of Congress or the Executive renders the basis for the said decision nugatory. This is specially true when the basis of the Supreme Court is the absence of a law; such as when the Supreme Court rejected the defense of Battered Women Syndrome (BWS) in the case of People v. Genosa even if their “hearts empathize with recurrently battered persons, [for they] can only work within the limits of law. [The Supreme Court] cannot make or invent them. Neither can [they] amend the [law].” The case of Genosa helped pave way for the passage of the Violence Against Women and their Children Act (VAWC) which recognized BWS as a legal defense notwithstanding the absence of any of the elements for justifying circumstances under the Revised Penal Code. Effectively, the decision of the high court in Genosa was superseded by the passage of VAWC.

Fourth. The decision of the Supreme Court may be overturned by the source of its authority: the people. As enshrined in our Constitution, “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”

Thus, in 1973, the Supreme Court dismissed the ratification cases in Javellana v. Executive Secretary only to be overturned by the sovereign Filipino people in 1986.

Pinoy Movie Lines for Lawyers

Lawyers seem to have developed a language of their own. Legalese gives lawyers a certain dramatic mystique that can be interesting, intimidating or down right annoying. But what if lawyers do away with the legal jargon and use famous pinoy movie lines in their legal practice? Here’s a list which may help.

When the witness gives unreponsive answers: Huwag mo ako bigyan ng ka-bulshitang sagot! Marami akong trabaho inuubos mo ang oras ko! The least I expect, bigyan mo ko ng sagot ng hindi galing diyan kundi galing dito! -Claudine Baretto, Got to Believe in Magic (2002)
When a senior lawyer makes an issue out of your youth: Ang problema sa ‘yo, maaga kang ipinanganak! -Sharon Cuneta, Kahit Konting Pagtingin (1990)
When you make a continuing objection: Pinuno mo na ang salop! Dapat ka nang kalusin! -Fernando Poe Jr., Kapag Puno na ang Salop (1987)
When your witness suddenly disappears: May mga maswerteng tao na nahanap na yung taong para sa kanila. May mga taong patuloy na naghahanap at may iba na sumuko na. Pero yung pinakamasaklap eh yung na sayo na pinakawalan mo pa. -John Lloyd Cruz, My Amnesia Girl (2010)
When the opposing counsel invites you to a duel outside the court: Kung saan, kailan, at paanong labanan, magpasabi ka lang. Hindi kita uurungan! -Sharon Cuneta, Dapat Ka Bang Mahalin (1984)
When the accused points to someone else as the culprit: Si Val! Si Val! Puro na lang si Val! Si Val na walang malay! -Vilma Santos, Saan Nagtatago ang Pag-Ibig (1987)
When the opposing party hates you for defending the client you also hate: Kung alam mo lang! -Judy Ann Santos, Kung Alam Mo Lang (1996)
When your opposing counsel is beautiful: Ok lang kaya kung ligawan kita? Can you please give me one […] chance to love you? Please? -Rico Yan, Dahil Mahal na Mahal Kita (1998)
When your beautiful opposing counsel moves for continuance: No pressure! And kiss me and don’t you dare fall in love with me. -Anne Curtis, No Other Woman (2011)
When you shakehands with the opposing counsel after a heated argument: Walang personalan, trabaho lang. -Rudy Fernandez, Markang Bungo (1991)
When you do not have evidence to support your allegation: Mayroong mga bagay na hindi natin dapat makita, pero dapat paniwalaan. -Jacklyn Jose, Pedrong Palad (2000)
When the judge is late: May mga tao talagang naghihintay. -Judy Ann Santos, Don’t Give Up On Us (2006)
When you present a hostile witness: Hindi mo sya kailangan, kailangan ko sya! -Angelica Panganiban, A Love Story (2007)
When your motion for production of evidence is denied: Hindi pala naibibigay ang kaligayahan, hindi ito nahahanap sa ibang tao. -Claudine Baretto, Milan (2004)
When your motion is denied: Rejection is the greatest aphrodisiac! -Eugene Domingo, Kimi Dora: Kambal sa Kiyeme (2009)
When you have to attend the MCLE: I already gave five years of my life its about time you give me what I want. -Bea Alonzo, One More Chance (2007)
When the adverse witness responds to your question with a damning answer: Kagustuhan ko naman ito di ba? Bakit ako ang nasasaktan ng sobra? -Bea Alonzo, One More Chance
When you are cross examining an expert witness: Para kang tae… Di kita kayang paglaruan. -John Lloyd Cruz, One More Chance (2007)
When the question is already asked and answered: Alam mo ‘yung sinabi ni F. Scott Fitzgerald? There are all kinds of love in this world, but never the same love twice. -JM De Guzman, That Thing Called Tadhana (2015)
When the witness denies the existence of something: Akala mo lang wala… pero meron! Meron! Meron! -Carlo Aquino, Bata, Bata, Paano ka Ginawa? (1998)
When the witness is trying to explain his answer during cross-exam: You don’t have to explain it’s ok, hindi ba sabi mo hindi… ‘Wag ka na magpaliwanag. -Toni Gonzaga, You are The One (2006)

Beyond False Dichotomies (An Open Letter – Part 2)

Dear Antonio P. Contreras,

I have come not to convince you but to ask. To share, to gain knowledge, and to paraphrase our mutual friend, to contribute steam to intellectual ferment.

I have neither come to curtail your freedom of speech. No person or political group has the monopoly of such freedom. Some comments to my post notwithstanding, I echo the cry of civil libertarians: I may not agree with what you say but I will defend until death your right to say it.

I have come instead to invite you to a cause: to elevate the level of discourse permeating in social media — to disagree without being disagreeable. To reason and not to shame.

To repeat, there is no shame in having a conviction not shared by many. Shame lies not in having an honest opinion but elsewhere. Shame lies in being a monster who hides in anonymity and darkness and threatens or curses people (Mamatay ka sana! Ma-rape ka sana!). Shame lies in intellectual dishonesty and academic egoism – shooting down others’ opinion not on the basis of logic but on the basis of argumentum ad hominem. Shame lies in uncalled for epithets and misogyny. Shame lies in blind support as much as it lies in blind opposition. Shame lies in what is wrong regardless of color. May dilaw na walanghiya. May pulang walang hiya. May asul na walang hiya. Husgahan natin ang kawalang hiyaan hindi ayon sa kulay bagkus ayon sa katwiran.

Let me therefore continue to reason with you and, now with Ms. Sassot:

Yes, Lijar is small (just a little bigger over 4 countries in the world). But is the Lijar precedence devalued simply because it happens to be small?

The other wars, while in part have something to do with boundaries, were stimulated if not worsened by the most unusual and curious circumstances. That was the basic premise of the historical analogy in as much as it was in response to your statement that: “international relations is not as simple as what [Ms. Isidro] think[s] it is. Countries do not behave like the soap opera [she] play[s] where a bitchiness of one leads to a catfight, or a fistfight.”

And at this time and age, we’re not just talking about wars in strictly legal terms as limited to military combat. There’s a possibility of economic reprisals and sanctions like the withholding or pulling out of investments. Is it not that the latter relates to the many wars the country has to win — war on drugs, crime, corruption, poverty and traffic, among many others.

I would, of course, be happy to be proven false. The purpose of free speech, after all, is to allow the free flow of ideas for rational discourse. To spread knowledge not hate.

* * *
Beyond false dichotomies is a shared prayer: a better Philippines.

Mabalos,

Gideon

Freedom for The Thought We Hate (An Open Letter)

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(Photo from: http://www.nowreader.com/2016/10/dr-contreras-slams-agot-isidro-you.html) 

 

Dear Dr. Antonio P. Contreras,

Ours is a democratic country where there is, or ought to be, enough freedom for the thought that we hate. As J. Holmes put it, “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” 

Should Agot Isidro then be really ashamed of herself? No, Doctor. There is no shame in having a conviction not shared by many. Shame lies not in having an honest opinion but elsewhere. Shame lies in being a monster who hides in anonymity and darkness and threatens or curses people. Shame lies in intellectual dishonesty and academic egoism – shooting down others’ opinion not on the basis of logic but on the basis of argumentum ad hominem. Shame lies in uncalled for epithets and misogyny. Shame lies in blind support as much as it lies in blind opposition. Shame lies in what is wrong regardless of color. May dilaw na walanghiya. May pulang walang hiya. May asul na walang hiya. Husgahan natin ang kawalang hiyaan hindi ayon sa kulay bagkus ayon sa katwiran. 

Let me therefore reason with you.

According to you, “international relations is not as simple as what [Ms. Isidro] think[s] it is. Countries do not behave like the soap opera [she] play[s] where a bitchiness of one leads to a catfight, or a fistfight.” 

But Doctor, is it not that in 1883, Lijar declared war against France because the citizens of the former heard reports that King Alfonso XII had been insulted by Parisians? Is it not that the Paraguayan war was waged by President Lopez against Argentina, Brazil and Uruguay simply because he wanted to? Is it not that in 1925, a war sparked between Greece and Bulgaria when a Greek soldier chased his dog across the Bulgarian border and was shot by the latter’s sentry? How about the “War of Pork and Beans” and the “Pig war” between the United States and Great Britain. Does Jenskin’s ear also ring a bell?

World History teaches us that while most wars are fought over the most serious and compelling issues, others arise from unusual and curious circumstances. And it wouldn’t be unusual for war to arise from utterances.

Words can heal in the same way that it can hurt a nation. This was acknowledged by President Rodrigo Duterte, no less, prior to his assumption of office when he said, “I need to control my mouth. I cannot be bastos because I am representing the country. […] If you are representing the country, you need to be prim and proper.”

It was also the President who voiced about going hungry when US and EU pull out aid to the country. “We will survive. Even if it’s difficult, we will survive […] I’ll be the first one to go hungry. I’ll be the first one to die of hunger. Do not worry,” he said. Ms. Isidro’s statement against hunger was therefore premised on the President’s statement.

Yes, we should not be subservient to any foreign power; the State should pursue an independent foreign policy (Art. II, Sec. 7, PH Constitution). But we shouldn’t ignore basic realities of a globalized world either for to do so would be a disservice to our countrymen, here and abroad. We need not be an enemy of one to gain the friendship of another (a friendship that calls for such situation is dubious at best). Indeed, the Constitution did not stop at a blanket policy of independent foreign policy, it went on to state, in its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity (West Philippine sea included), national interest (think of our OFWs and foreign investments), and the right to self-determination (gusto naming magka-abs pero ayaw naming magutom).

By the way, I am a lawyer and a political science graduate. Would you, by any chance, extend to me your offer to Agot Isidro and indulge me with a one-on-one on political literacy? Don’t worry, I am more than willing to pay for your consultation — for the love of country.