Mediation as an Alternative Dispute Resolution in the Philippines *

Together with two of my classmates in my Alternative Dispute Resolution (ADR) class under Judge Rico Sebastian Liwanag, I visited the Philippine Mediation and Conciliation Office (PMCO) – Makati last February 28, 2014. Our agenda were (1) to set a schedule for our mediation session observation and (2) to conduct an initial interview with one of the mediators, Dr. Michael Oliver.

Our second visit in the PMCO-Makati was on March 11, 2014, where we already observed an actual mediation conducted by the office. We observed in a proceeding involving a bank as the complainant and a private person as the defendant. The mediator was Atty. Julita Espartero.

The nature of the case is replevin. The bank granted a car loan to the defendant, but the subject vehicle was carnapped; such incident induced the defendant not to pay the amortizations of the loan. After more or less a year from the date of the carnap, the vehicle was recovered but the bank was able to take possession of it, foreclosed it, and eventually sold it in a foreclosure sale.

During the mediation, the defendant private party was with a lawyer as her counsel. On the other hand, the bank sent a representative who is not a lawyer but is an employee under the legal department of the bank.

Interview with Dr. Michael Oliver, Mediator
Our interview with Dr. Michael Oliver revealed some of the concerns in the mediation process from the point of view of the mediator. Among others, they are: (1) trust and confidence of the parties in mediation itself, (2) decorum of the counsels, (3) respect of the parties and lawyers to the office, and (4) length of time in cases involving business entities as parties to a case. Continue reading

Clan Politics and our F*cked up Society

Last May 13, 2013, I was fortunate enough to participate in the local elections of the Maguindanao province, not as a voter but as a paralegal. It was one of the most daring and risky experiences I have ever had, and also one of the most amazing. It was an eye-opener to the big muddled picture of clan politics in the ARMM.

Many people see the province of Maguindanao as terrifying. Well, that is pretty true. Although I must say that the province is actually very beautiful. It could be a tourist hotspot had there been fewer threats to life and security. It is depressing to feel like there is a culture of fear and mistrust among the people. Most of the locals I had the chance to interact with smile seldom and have unhappy eyes.

One lawyer who is also doing election works in the province shared to me a few tidbits about the dynamics of politics in the province. One of the most appalling information he told me is that a strategy employed by those in authority to be able to hold on to their power is to maintain the status quo of ignorance among the people. According to him, because of their ignorance, the masses become very easy to control. They are too gullible and very easy to appease whenever there is controversy.

The lawyer told me too that the middle class is inexistent in the province. It is either you are poor or rich – extreme poverty and extreme wealth.

I am not sure how we can solve these problems. But I am certain that they can be solved. Education and access to information is empowering but it is too simple to say that these only are what the people need. The issues that the province faces have a lot of aspects that can be looked into – cultural, social, political and legal. Each aspect has its own complexities, that education alone is not enough to address all. Moreover, those in authority themselves deprive the masses of the education and information that they need. Before the people get access to education, the apparent clan politics and violence in the province should first be combated.

What is worse is that the local politicians are not the only ones benefiting from the status quo. The province of Maguindanao, as well as the other provinces in the ARMM, is considered “vote-rich” and may either win or cost an election for someone running for a national post. If the local government authorities and a candidate for a national post belong to the same party, then the latter is obviously at an advantage in the national elections for it would be easier for them to “manipulate” in their favor the elections in the province or local government unit.

So, what can we do? I do not know. Philippine politics is so f*cked up, reinforced by TV networks, social media, business corporations and other social forces that promote social idiocy and unawareness. It is a baby step to just recognize that there exist serious problems in the provinces of ARMM. It is up to us how we make this baby step lead to bigger ones.

Building Aesthetics and The Law

One of the requirements in our class in Legal Technique and Logic is to submit a legal research paper. The paper that I submitted is entitled “Building Aesthetics and The Law: Is a statute regulating the aesthetics of privately-owned buildings a valid exercise of police power?” I enrolled said subject last semester (2nd semester, A.Y. 2012-2013). And I cannot recall what really inspired me to write a paper about building aesthetics. I had a great time writing the paper, though. If you want a copy of it, you may email me at jorgepatrick.yasay@yahoo.com. Here is the research abstract of the paper:

The study is an investigation of a long line of cases, as well as commentaries, previous studies and other resources, about the subject matter. It puts emphasis on the scope and limitations of police power in relation to regulating the architecture of buildings, particularly on the aspect of aesthetics. The findings of the study present that there are three conditions that must concur for a law or an ordinance regulating the aesthetics of privately-owned buildings to be a valid exercise of police power. These conditions are derived from analyses and analogies based on Supreme Court decisions. The study would be significant to the lawmakers for they would know which measures are justified under the police power. Likewise, it will be significant to property-owners since they would know which of their rights are violated, if there would be any, by measures regulating the artistic value of their buildings.

Tatak OrCom, Tatak Tagumpay!

ImageImageFebruary 6, 2013

As a proud OrCom alumnus, I was indeed very grateful to get invited to deliver a talk before high school students about the degree program and share my UP-OrCom story to them. It was truly an honor to inspire them, especially those who have the potential to excel in the field of organizational communication.

Continue reading

OrCom and My Study of Law

For my first few months in law school, I often ask myself how my college degree in Organizational Communication is relevant to the study and practice of law. I occasionally see myself at a disadvantage because I didn’t have a background in political law, taxation, criminal justice and jurisprudence, unlike most of my classmates who finished degrees that are more aligned to law studies.

Now, though, I am more aware of my advantage as an OrCom graduate in the study of law and future practice.

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Small Problems, Big Repercussions

Local government units are considered as small republics. In the Philippines, the governor, the mayor and the punong barangay hold the executive power in a province, municipality or city and barangay, respectively. The various sangguniansSangguniang Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan and Sangguniang Pambarangay are the legislature of these different local government units. They pass ordinances and resolutions for the effective administration of the LGUs.

These LGUs are created “for a more responsive and accountable local government structure instituted through a system of decentralization” (Local Govt. Code, Sec. 2). Even though through decentralization, LGUs are granted a high degree of independence and autonomy, they are still good indicators of how the national government works. They reflect the efficiency or inefficiency of the system and bureaucracy.

Early today, I accompanied my sisters in the municipal hall of Moncada, our hometown. They intended to register as voters for the 2013 elections. Today is the last day of registration and this is why we were not surprised to see a great number of people who wanted to secure their right to vote. Despite coming early, my sisters were not able to register because according to the municipal employee who facilitated the registration process, there was a cutoff and only the first 100 “applicants” will be accommodated. After several minutes of observing and deliberating whether or not they should wait for further announcements accepting more “applicants”, we decided to just go home and have breakfast.

In our morning trip in the municipal hall, we observed that as usual, there was a problem in communication. The first hours of the last day of registration in our town was disorganized and disorderly. I believe that this was because of the absence of an effective system of communicating with the registrants. The municipal personnel facilitating the registration process let the lines get longer without overseeing whether the people are falling in the right line. They gave not enough directions and let the people ask questions and get answers among themselves. What was worse is the disrespectful attitude of some of the municipal personnel toward those who ask for assistance.

Ironic is that our municipal hall looks expensive now yet we cannot afford a bulletin board where information about voters’ registration should have been posted. We have an extravagant belen but we do not have a single poster showing the flowchart of the voters’ registration process. Continue reading

Goodbye, Cybersex.

Because of the passing of Republic Act No. 10175, known as the Cybercrime Prevention Act of 2012, the Filipino people was again enraged. A lot of people express through social media their dissent on this law. There have been petitions filed before the Supreme Court questioning the constitutionality of said law. There are groups which claim that R.A. 10175 infringes their freedom of speech while there are also those who contend that it violates the double jeopardy, equal protection and due process clauses of the Constitution.

Some already find it stressful to listen or read news about those  against the Cybrecrime Prevention Act. Because of this, I will not expound anymore on the contentions and arguments of these people who question the validity or constitutionality of the Cybercrime Prevention Act. What’s important for us to understand, however, is that all rights vested upon us have limitations, including our freedom of speech.  The freedom of speech is not absolute. For coexistence to possibly happen, the exercise of our rights must be restricted in such a way that it will not be harmful to the rights of other people and the State.

Now, let’s shift our attention to a more interesting topic cybersex. Cybersex, an activity engaged by a lot of netizens today, has now been defined by the Cybrecrime Prevention Act as one of the content-related offenses it punishes. It provides: “Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.” The law provides no exception as to the persons it will punish committing cybersex. Any person who have sex online willfully will be punished – even spouses.

I would not want to question the wisdom of this particular provision of law; but I’m really worried about those spouses who live in different domiciles and depend on “cybersex” to fulfill their sexual, or perhaps marital, needs. Some couples opt to do sex virtually so that they may “keep the fire burning” instead of committing sexual infidelity and have actual sexual intercourse with someone other than their spouse. Is it proper to call these spouses “criminal” when cybersex is the best way for them to satisfy the longing they have for one another?

I know that concerns relating to the commission of cybersex are not as serious as those concerns involving constitutional rights. However, I believe that small issues like this must have also been considered by our legislature in enacting a law because just like civil and political rights, personal rights must always be given due respect.

Family: A Microcosm

The family is the most basic social institution. An ordinary person would not need any sociological or anthropological theory to be able to explain its importance in shaping one’s life and influencing his perception toward the world. It is the family that primarily influences a child’s attitude and beliefs because it is in the home, with his family, where he first learns the essential lessons in life. Hence, how he behaves in the society is a product of and an interplay with the values he acquires from his family.

The family is not just the smallest unit of society; it can also be considered as the smallest form of organization which may serve as a microcosm to its bigger counterparts – community, corporations and the government. The family, regardless of its size and composition, has hierarchy, resources, needs, goals and culture – things which are inherent to an organization. In this sense, one must understand the dynamics of family life in order to understand how it resembles with the more complex forms of organizations. Likewise, this resemblance tells us that one’s family life affects his dynamism or verve within his organizations and his attitude toward its members.

This does not mean, though, that one’s organizational life would be a replica of his family life. It also does not mean that the person one is in his family will be the same person one will become in his organization. This only means that a person, in his dealings within his organization, cannot get rid away of his family’s influence to his identity and personality.

Definitely, the family is just one of the many factors that affect a person’s performance and behavior in an organization. The society at large and his personal experiences also play a big role in the shaping of his character and philosophy in life. What is important to remember, though, is that wherever a person would be and whatever he will become, he owes a huge portion of his “self” to the institution where he first experienced life – his family.

Jurisdiction of Court of Appeals Justices as Marriage Solemnizing Officers

The Batas Pambansa Blg. 129 (B.P. 129), known as “The Judiciary Reorganization Act of 1980” provides for the reorganization of the judiciary, including the Court of Appeals (CA). R.A. No. 7902 amended the Section 9 of B.P. 129, expanding the Court’s jurisdiction but did not include provisions relating to the authority of the Court and its justices on matters concerning marriage. R.A. No. 8246, on the other hand, repealed the organization of the appellate court and created six more divisions of the same, thereby increasing the membership from 51 to 69 justices. The additional divisions paved the way for the appellate court’s “regionalization.” This regionalization now raises the question on the jurisdiction of CA justices to solemnize marriages.

Furthermore, Section 4 of B.P. 129, as amended by R.A. 8246, states that “The Court of Appeals shall exercise its powers, functions, and duties through twenty-three (23) divisions, each composed of three (3) members.” This provision may lead us to a conclusion that the CA justices may only solemnize marriage within the division they are designated in since each CA division may only exercise jurisdiction within particular regions as defined by law.

Section 4 of B.P. 129 refers to the exercise of the adjudicatory functions of the Court of Appeals, as thereby expressed in Section 9 of the same. The purpose of the Court’s regionalization is to divide its members for the convenience of litigants and lawyers. It is a step taken by the legislature to deliver justice in an efficient manner.

However, it is important to note that what the provision implies is that the Court of Appeals is acting as a single judicial body when it exercises its “powers, functions, and duties” through its divisions.  The membership of the Court is divided, but not the coverage of its jurisdiction, which is nationwide. It follows that a CA justice still has a nationwide coverage in solemnizing a marriage. Only their adjudicatory functions are restricted to their particular division and not their “administrative, ceremonial and non-adjudicatory functions”. Continue reading