Tuesday, June 21, 2011

CAM ON QUEZON CITY (Why Quezon City’s “no CCTV, no business permit” policy is unconstitutional)

By Siesta-friendly

Several news articles last week reported Quezon City’s plans to “strictly implement the no-CCTV no business permit policy in line with the city’s peace and order campaign particularly against carnapping and kidnapping ... CCTVs will also be used by the city for disaster preparedness purposes …”.[1]  

Before Quezon City enacts a law to that effect, they should find guidance from the Bill of Rights -

“No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. “ (Sec. 1, Article III Bill of Rights means, Philippine Constitution)

The Due Process and Equal Protection clauses above mean that if a government plans to restrict an individual or a class of individuals’ rights to life, liberty, property and equality, the restriction must be reasonable and not arbitrary and such individuals or classes must be treated in the same manner as others in similar conditions and circumstances

Should Quezon City be of the impression that they can proceed with their policy in its exercise of police power, the Supreme Court has several times upheld the doctrine that -

The “exercise of police power is subject to judicial inquiry and could be set aside if it is either capricious, discriminatory, whimsical, arbitrary, unjust, or a denial of the due process and equal protection clauses of the Constitution.”[2]

Equal Protection of the Laws

The Supreme Court, as recently as December 2010 in the consolidated cases declaring the unconstitutionality of the Truth Commission[3] - having been tasked to investigate corruption only during Gloria Arroyo’s administration - , reiterated the settled doctrine that to be valid, a law which denies protection to one class of subject “must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.”

By requiring only businesses to install CCTV cameras, Quezon City has denied protection to the former that other classes like individuals, residences, government agencies, non-profit entities enjoy since the latter classes are not similarly required.

The classification must rest on substantial distinctions

In the context of peace and order for which the CCTVs are apparently required, what is the substantial distinction between businesses and other entities that justifies Quezon City’s singling out businesses?  Are residences and government offices free from crime?  Do all businesses pose a significantly high crime risk than other entities?  Quezon City has a high rate of carnapping.  Are the carnap victims predominantly business owners or do the incidents mostly occur in business premises?

What is the relation of crime and disaster preparedness to business establishments which does not exist with other entities that only businesses are required to install CCTV cameras?

Let’s take an example of reasonable classification. Requiring banks to have CCTV cameras is not unreasonable because of the money and other valuables deposited therein, the interest by their depositors in the safety of their deposits and the banks’ easy accessibility to the general public.  Banks are clearly substantially different from all other entities in any given city and may be justifiably required to raise their security by installing CCTV cameras in the interest of peace and order. Although in the interest of disaster preparedness … not so much.

The classification must be germane to the purpose of the law

What binds all businesses together that they should all be required, regardless of nature, purpose, size, location, or anything else, to install CCTVs in the interest of peace and order and disaster preparedness?    

How crucial is it for a beauty parlor to have a CCTV camera in the pursuit of peace and order and disaster preparedness?  What crimes and disasters in a carinderia would a CCTV camera frequently capture?  What is so precious inside a bakery – or how disaster prone exactly is a bakery - that CCTV cameras must be installed?  What threat to peace and order and disaster risk is being prevented by installing a CCTV camera in a Mr. Quickie shop?
What is it in all business establishments that attracts threats to peace and order and raises the risks of disaster that necessitate the installation of CCTV cameras in their premises, which other entities have not?  

The classification applies equally to all members of the same class

“The mayor [Herbert Bautista] reminded business establishments, particularly the high-risk ones such as car dealership stores (both high-end and trade-ins), as well as schools, convenience stores, gasoline stations and banks to comply with the CCTV requirement or face non-renewal of their business permit.”[4] 

If the mayor readily admits some businesses as high-risk, why then require all businesses to install CCTV cameras? 

In the case of businesses that own shops, stalls and carts, where should the CCVTV cameras be installed, in the office or in each of their shops, stalls and carts or in all of them?  Do all shops, stalls and carts in a mall need to have a CCTV camera each?

And in the near future when people realize that CCTV cameras do not substantially prevent crime – as frequent news reports of crimes captured by CCTV cameras (here and abroad) show and because criminals can so readily buy and put on ski masks – nor crucially alert people to disasters, what then?  Should the whims of a city government be allowed to extend to a new law requiring all businesses to employ security guards prior to obtaining their business licenses?  Whims can be so hard to suppress.

The job of peace and order preservation and disaster prevention belongs to the government.  It is already unfair for any government to delegate that job, especially a first class city that should have enough funds to effectively accomplish such job.  It becomes more unreasonable and arbitrary when the government singles out a class of subjects for purposes that affect other classes equally.

[1]  Chavez, C.A. (2011, June 14). QC wants CCTV as tool to deter crimes and disasters. Retrieved from http://www.mb.com.ph/articles/322632/qc-wants-cctv-tool-deter-crimes-and-disasters
[2]  Central Bank v. Court of Appeals, G.R. Nos. L-50031-32, July 27, 1981, 106 SCRA 143
[3]  Biraogo v. The Philippine Truth Commission of 2010 (G.R. No. 192935) and Lagman, et al. vs. Executive Secretary, et al. (G.R. No. 193036), December 7, 2010, citing Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
[4]  Chavez, ibid.


Wednesday, June 15, 2011

LAWYERS: KEEP OUT (The Katarungang Pambarangay Law)

By Siesta-friendly

What do you call a law prohibiting lawyers from participating in a justice system? Promising?

Unfortunately, we do not have statistics on how effective and successful the informal justice system known as the “Katarungang Pambarangay” has been.  But the mere fact that lawyers are barred from the proceedings should be success enough.

Anyway, should you have any problem against someone, it is crucial to know the rules on the Katarungang Pambarangay, as you will read below.

General Rule

The general rule is that the Lupon Tagapamayapa[1] (Committee for Peace) of each barangay “shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes”.[2]  So, provided they do not fall under the exceptions, all disputes must first be submitted for possible conciliation at the barangay level, before any court or other government body can take jurisdiction.


Naturally, there are cases that are best handled by the courts, the Office of the Ombudsman, the National Labor Relations Commission, the Securities and Exchange Commission, etc.  So we have exceptions to the general rule above, which are:

  1. Where one party is the government, or any subdivision or instrumentality thereof;
  1. Where one party is a public officer or employee and the dispute relates to the performance of his official functions;
  1. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;
  1. Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules];
  1. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon;
  1. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding 1 year or a fine of over P5,000.00;
  1. Offenses where there is no private offended party;
  1. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following:
a.      Criminal cases where accused is under police custody or detention;
b.      Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf;
c.  Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and
d.      Actions which may be barred by the Statute of Limitations.
  1. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice;
  1. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) [Secs. 46 & 47, R. A. 6657];
  1. Labor disputes or controversies arising from employer-employee relations [Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended], which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment];
  1. Actions to annul judgment upon a compromise which may be filed directly in court [Sanchez vs. Tupaz, 158 SCRA 459];
  1. Where the dispute involves members of the same indigenous cultural community, such dispute shall be settled in accordance with the customs and traditions of that particular cultural community, or where one or more of the parties to the aforesaid dispute belong to the minority and the parties mutually agreed to submit their dispute to the indigenous system of amicable settlement [Sec. 412 [c], R.A. 7160]
A court in which non-criminal cases not falling within the authority of the Lupon are filed, at any time before trial, may motu proprio refer the case to the Lupon concerned for amicable settlement. [Sec. 408 [g], 2nd par.]

The courts are strict about these rules.  No complaint, petition, action, or proceeding involving any matter within the authority of the Lupon shall be filed or instituted directly in court or any other government office for adjudication, unless (1) there has been a confrontation between the parties before the Punong Barangay or the Pangkat, and that (2a) no conciliation or settlement has been reached as certified by the Lupon secretary or Pangkat secretary as attested to by the Lupon or Pangkat chairman or unless (2b) the settlement has been repudiated by the parties thereto.[4]

Cases filed in court without first going through barangay conciliation when required “may be dismissed upon motion of defendant/s … for failure to state a cause of action or prematurity”.[5]


So exactly with which Lupon should one file a complaint?

  1. Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the Lupon of said barangay.
  1. Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complaint.
  1. All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated.
  1. Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located.
Objections to venue shall be raised in the mediation proceedings before the Punong Barangay (Lupon Chairman); otherwise, they are deemed waived.  Any legal question which may confront the punong barangay in resolving objections to venue may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling shall be binding.


Mediation by the Punong Barangay / Lupon Chairman

  1. Upon payment of the appropriate filing fee (not less than P5.00 nor more than P20.00)[8], any individual who has a cause of action against another may complain, orally or in writing, to the Punong Barangay.
  1. Upon receipt of the complaint, the Punong Barangay shall within the next working day summon the respondent(s), with notice to the complainant(s) for them and their witnesses, to appear before him not later than 5 days from date thereof[9] for mediation of their conflicting interests.  
  1. The respondent shall answer the complaint, orally or in writing, by denying specifically the material averments of the complaint and/or alleging any lawful defense.  He may also interpose a counterclaim against complainant, a cross-claim against a co-respondent or a third-party complaint against one not yet a party to the proceedings.[10]
  1. Upon successful conclusion of his mediation effort, the Punong Barangay shall reduce to writing in a language or dialect known to the parties the terms of the settlement agreed upon by them, have them sign the same, and attest to its due execution.[11]
  1. If the Punong Barangay fails in his mediation efforts within 15 days from the first meeting of the parties before him, or where the respondent fails to appear at the mediation proceeding before the Punong Barangay[12], he shall set a date for the constitution of the Pangkat Tagapagkasundo[13] (Panel for Conciliation).
Conciliation by the Pangkat Tagapagkasundo

  1. The Pangkat shall convene not later than 3 days from its constitution, on the day and hour set by the Punong Barangay, to hear both parties and their witnesses, simplify issues, and explore all possibilities for amicable settlement.  The Pangkat may also issue summons for the personal appearance of parties and witnesses.
If a party moves to disqualify any member of the Pangkat by reason of relationship, bias, interest, or any other similar grounds, the matter shall be resolved by the affirmative vote of the majority of the Pangkat whose decision shall be final. Should disqualification be decided upon, the vacancy shall be filled by drawing lots [See Sec. 404, R.A. 7160]. 

  1. Respondent's refusal or willful failure to appear without justifiable reason before the Pangkat, as determined by the latter after notice and hearing, shall be a sufficient basis for the issuance of a certification for filing complainant's cause of action in court or with the proper government agency or office.[14]
  1. The Pangkat shall arrive at a settlement or resolution of the dispute within 15 days from the day it convenes.  This period shall, at the Pangkat’s discretion, be extendible for another period which shall not exceed 15 days, except in clearly meritorious cases.
Informal but Orderly Proceedings[15]

The Punong Barangay and the Pangkat shall proceed to hear the matter in dispute in an informal but orderly manner, without regard to technical rules of evidence, and as is best calculated to effect a fair settlement of the dispute and bring about a harmonious relationship of the parties.

Proceedings before the Punong Barangay shall be recorded by the Lupon Secretary while those before the Pangkat shall be recorded by the Pangkat Secretary. The record shall note the date and time of hearing, appearance of parties, names of witnesses and substance of their testimonies, objections and resolutions, and such other matters as will be helpful to a full understanding of the case.

Public Proceedings[16]

All proceedings for settlement shall be public and informal but the Punong Barangay or the Pangkat chairman, as the case may be, may motu proprio or upon request of a party, exclude the public from the proceedings in the interest of privacy, decency, or public morals.

Personal Appearance; No Lawyers[17]

In all proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers. Total ban.  Sweet.

Sanctions for Failure to Appear[18]

In case a party fails to appear for mediation, the Punong Barangay / Pangkat Chairman shall set a date for the absent party/ies to appear before him to explain the reason for the failure to appear. 

If the Punong Barangay / Pangkat Chairman finds after hearing that the failure or refusal of the complainant to appear is without justifiable reason, he shall (1) dismiss the complaint; (2) direct the issuance of and attest to the certification to bar the filing of the action in court or any government office; and (3) apply with the local trial court for punishment of the recalcitrant party as for indirect contempt of court. 

In case of similar willful failure or refusal of the respondent to appear for mediation before the Punong Barangay / Pangkat Chairman (as may be applicable), the latter shall: (1) dismiss the respondent's counterclaim; (2) direct the issuance of and attest to the certification (i) to bar the filing of respondent's counterclaim in court/government office, and if already under conciliation, (ii) to file complainant's action in court/government office; (3) apply with the local trial court for punishment of the recalcitrant party as for indirect contempt of court; and (4) if still under mediation, the Punong Barangay shall set a date for the parties to appear before him for the constitution of the Pangkat.

The Punong Barangay shall apply, in similar manner, for the punishment of a recalcitrant witness who willfully fails or refuses to appear, as for indirect contempt of court.

Suspension of Prescriptive Period

While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing the complaint with the Punong Barangay.  The prescriptive periods shall resume upon receipt by the complainant of the certificate of repudiation or of the certification to file action issued by the Lupon or Pangkat Secretary.  Such interruption, however, shall not exceed 60 days from said filing of the complaint.

Repudiation of Settlement[19]

Any party to the dispute may, within 10 days from the date of the settlement, repudiate the same by filing with the Punong Barangay a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office. Failure to repudiate the settlement within the aforesaid time limit shall be deemed a waiver of the right to challenge on said grounds.

Settlement as Final Judgment[20]

The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court.  Except that in cases where the court motu proprio referred a non-criminal case to the Lupon which is not within the latter’s jurisdiction, the compromise settlement agreed upon shall first be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court.


The amicable settlement or arbitration award may be enforced by execution by the Lupon within 6 months from the date of the settlement.  After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.[21]

The secretary of the Lupon shall transmit the settlement or the arbitration award to the appropriate city or municipal court within 5 days from the date of the award or from the lapse of the 10-day period repudiating the settlement and shall furnish copies thereof to each of the parties to the settlement and the Punong Barangay.[22]

The Katarungan Pambarangay law is embodied in the Local Government Code and thus comes part of the government’s hopes for decentralization and local government empowerment and the aim of providing accessible and non-adversarial dispute resolution. And in the pursuit of these hopes and aims, lawyers are deemed an obstruction.

[1]  SEC. 399, R.A. 7160. Lupong Tagapamayapa. –
(a) There is hereby created in each barangay a lupong tagapamayapa, hereinafter referred to as the lupon, composed of the punong barangay as chairman and ten (10) to twenty (20) members. The lupon shall be constituted every three (3) years in the manner provided herein.
(b) Any person actually residing or working in the barangay, not otherwise expressly disqualified by law, and possessing integrity, impartiality, independence of mind, sense of fairness, and reputation for probity, may be appointed a member of the lupon.
(f) In barangays where majority of the inhabitants are members of indigenous cultural communities, local systems of es through their councils of datus or elders shall be recognized without prejudice to the applicable provisions of this Code.

[2]  Sec. 408, ibid.
[3]  Par. I, Administrative Circular No. 14-93,  “Guidelines On The Katarungang Pambarangay Conciliation Procedure To Prevent Circumvention Of The Revised Katarungang Pambarangay Law [Sections 399-422, Chapter Vii, Title I, Book Iii, R. A. 7160, Otherwise Known As The Local Government Code Of 1991]”, July 15, 1993.

[4]  Sec. 412, R.A. 7160
[5]  Par. IV, Administrative Circular No. 14-93.
[6]  Sec. 409, RA 7160.
[7]  Sec. 410, ibid.
[8]  Rule VI, Sec. 4, Katarungang Pambarangay Circular No. 1, “Katarungang Pambarangay Rules and Forms”, July 21, 1992
[9]  Rule III, Sec. 1 b (1), ibid.
[10]  Rule VI, Sec.5, ibid.
[11]  Rule III, Sec. 1 b (4), ibid.
[12]  Rule VI, Sec.8 a, 3rd par., ibid.
[13]  Sec. 404, R.A. 7160. Pangkat ng Tagapagkasundo. –
(a) There shall be constituted for each dispute brought before the Lupon a conciliation panel to be known as the Pangkat ng tagapagkasundo, hereinafter referred to as the Pangkat, consisting of three (3) members who shall be chosen by the parties to the dispute from the list of members of the Lupon.
Should the parties fail to agree on the Pangkat membership, the same shall be determined by lots drawn by the Lupon chairman.

(b) The three (3) members constituting the Pangkat shall elect from among themselves the chairman and the secretary. The secretary shall prepare the minutes of the Pangkat proceedings and submit a copy duly attested to by the chairman to the Lupon secretary and to the proper city or municipal court. He shall issue and cause to be served notices to the parties concerned.

The Lupon secretary shall issue certified true copies of any public record in his custody that is not by law otherwise declared confidential.

[14] Rule VI, Sec.8 a, 3rd par., Katarungang Pambarangay Circular No. 1.
[15]  Rule VI, Sec.5, ibid.
[16]  Sec. 414, ibid.
[17]  Sec. 415, ibid.
[18]  Rule VI, Sec. 8 b, 1, Katarungang Pambarangay Circular No. 1.
[19]  Rule VI, Sec. 14, ibid.
[20]  Sec. 416, R.A. 7160.
[21]  Sec. 417, ibid.
[22]  Sec. 419, ibid.