Group number 1 - presentation September 1
-yellow part
Nationalization laws: laws that give priority to Filipinos in Economic activities
Where to find:
• CONSTITUTION
-where in the Constitution?
IN ART 2:
• SEC 19: Filipinos have effective control
• SEC 20: Private sector participation
IN ART 12
• SEC 2: DEDU of natural resources
• SEC 3: Alienable lands can only be acquired by Filipino Citizens
• SEC 7: Private lands only to those who can acquire & hold Alienable lands
• SEC 10: Reservation of Areas of investment to Filipinos
• SEC 11: Public utilities limited to Filipino (operation upon acquisition of franchise/ certificate/privilege)
-what provisions have percentages:
• SEC 2: EDU of natural resources: State may enter into co-production, joint venture or production sharing w/ Fil citizens or private corp or assoc w/ at least 60% capital owned by Filipinos
• MASS MEDIA - 100%
□ But does it matter? No. Many Filipinos would not care if they're watching Filipino shows and non-Filipino shows.
□ Rationale appears to be we want to be in control. Why? We don't want foreigners to be controlling us - especially through media
• Anti-dummy law
Look at foreign investment negative list
-why ended up with those limitations
-continue with Anti-Dummy Law
Saturday, July 31, 2010
OLA Component_July 31, 2010 (vulnerable groups and how to handle them)
-woman with HIV refused treatment in hospitals, causing the death of her child
- What makes her situation one of vulnerability:
Vulnerable:
- Pregnancy
- HIV
- Prone discrimination, helpless
Ma'am Litong:
- HIV is a medical condition, not a disability
- There's a special law which is applicable to HIV/AIDS positive persons
- Vulnerability of the pregnant woman that makes her prone to discrimination: the misappreciation of the condition, the misinformation in the society attaches a stigma to the person with the medical condition - to the extent that the person would refuse to pursue a case to avoid publicity of her case
- The fact that she is a woman does not make her vulnerable: the HIV condition makes her more vulnerable - so the fact that she is a woman makes her still vulnerable in this case!
- Responsible behavior on the part of others would have helped the condition
- Women are more vulnerable to HIV virus because women offers an orifice - receiver of the semen which may be affected by the virus. Thus, it is on the man to which the responsibility lies
- Criminal cases/administrative cases do not prosper because in the first place, no case is filed by an HIV positive person
- HIV positive condition was interpreted as "suicide" before in insurance cases
"How to handle the case: consider where she is coming from"
Defense of the hospitals:
- Damnum absque injuria
- Admits lack of facility, if not capable, would put the woman more at risk (balance interest)
MA'AM: the law does not allow hospitals to refuse admission to hospitals, regardless of what condition the patient may have (UNIVERSAL PRECAUTIONARY MEASURES). This apply to both provincial and lying in hospitals. Lying in hospitals usually only perform normal deliveries
- How HIV virus transmitted during delivery? Know how!
How to assist client with HIV? Nasa HIV law RA 8504. (provides penalties - criminal prosecution)
- Ips and Minors
Short Facts: In IP Community, a child stole something from neighbor. Dad volunteered to surrender the thing stolen and in addition, agreed to the decision of the elders that he be publicly humiliated by displaying him in public tied for 4 hours. Police authorities saw him, decided to filed charges against the elders and all who participated in deciding that public humiliation be resorted to. Child to be subjected to juvenile justice system
-actual case in Mindoro (Mangyans)
PROSECUTE | DEFEND |
|
|
How to look at the case: look using individualistic perspective: act is itself a criminal act, in isolation of all other facts then prosecute on the basis of mainstream law? Or look at IPRA (informal justice systems)
- Pag usapin ng Ips, cannot remove the community because it's a community issue
- Automatic na napupunta sa NCIP
- Homosexuals
2 homosexuals, cross-dressers were beat up, and 2 teenagers who beat them up forcibly had anal intercourse with them
PROSECUTE | DEFEND |
|
Below 15: exempted from criminal liability 15-18: if did not act with discernment, even if they did intend what they did Presumption of minority If 18-19: argue that the teenagers were ""drugged" |
Ma'am: it's a hate crime!
-statistics: violence against homosexuals are based on hate felt against them
-balancing: obviously there is rape and it has to be recognized. The handling counsel should be able to tell it to the victims
-alleged "drugged": malabo?
-mahirap iprosecute: HR must develop sa usapin ng kabataan
-encourage LGBTs, because almost all the time they are victims of violence. Explain to the client that it's not their fault that they were treated that way but because of the way society treats them.
-Lesbians, para maging babae nirerape. Most integrated response
-Minors: intervention should be undertaken, or else they may be your future criminals (do not insist on automatic exemption) - restorative justice - should make the minors know that what they did was wrong, a hate crime. Be sensitive to their needs for development.
Lawyering for the vulnerable groups has extra obligation: to tell the truth to the client, what would happen to the case. Aside from being skilled and knowledgeable to the law is not enough.
- Women accused of adultery
Defense:
- Condonation
- Power of man over woman reinforced by law: law makes it easier for the man to prosecute for adultery.
- Added layer: if with VAWC, more problematic
- If present the case that child would lose parents if both would be jailed. In more cases, woman would give in because society imposes on her the burden of reproduction and if she would not give in, the society would look down at her.
- That's why VAWC prevents compromises to prevent the situation of power play between woman and men
- VACWC easier to prove and access: it has protection measures. You play these aspects of the law so that she would not be forced to compromise in this case.
- Woman easily placed in a position of stigma: woman usually do not resort to remedies available to her
- Normal for lawyers to compromise in this kind of case. Sometimes, the woman client would even propose this compromise because of the burdens on her. It is her decision, respect
Wednesday, July 28, 2010
July 28 Labor Arbitration Lecture Notes
Robert Frost poem
-was a poet lauriat - he was asked during state functions to compose poems, including that of JFK
---so around 30 minutes about Culture…
*"Men of culture would never be irrelevant in society"
What has this to do, at all, with our class in Labor Law?
When you become lawyers, you have to be "cultured".
Obsequitious
DUTY TO BARGAIN
-important: almost always, dito nagsisimula ung labor dispute
-start of the process where the parties would finally end up with Voluntary Arbitration
-if you examine the entire relationship (EER) and attempt to divide that relationship into portions, you can start initially with bargaining, then conciliation, mediation, grievance procedure then finally voluntary arbitration
-start: bargaining in GF
-end: VA
SAMAHAN SA PERMEX V. SOLE
F: Certification Election was conducted, wherein 61% of the employees voted "no union" (Feb 1991). However, SMP wrote to PERMEX to be recognized as the SBR, and PERMEX complied with it. Employees contested this, even saying they were coerced or misled into signing a document which turned out to be in support of SMP as its CB Agent. CBA was entered into by SMP and PERMEX.
H: Since there is a question as to the majority status of the recognized BR, the CBA is not effective.
-Also, improper for the ER to voluntarily recognize SMP. Should have a CE to determine which Union all the employees recognize as its EBR.
-found it dubious that SMP was recognized as EBR by the ER even after 10 months after the CE wherein "No union" won
*on the 10 month period: if it was longer, would it change anything? No. the employer should not have voluntarily recognized SMP, but should have held a CE to determine the sentiments of the employees as to who they want to represent them - now, direct recognition by the ER is prohibited
ALU V. FERRER-CALLEJA
F: ALU asked to be the EBR of the employees, and ER wrote back asking that ALU show proof of majority status. 2 days after, ALU and the ER entered into CBA negotiations. 2 other labor unions questioned the status of ALU as the majority representative of the employees, petitioned for a Certification Election.
H: For there to be collective bargaining, 3 things should first be shown to exist (Kiok loy jurisdictional requirements), one of which is proof of majority representation which in this case does not exist or was not shown to exist.
-what is wrong with the ER voluntarily recognizing ALU as the sole bargaining rep? CHA: because the status of ALU as the majority representative of the employees of the company is questionable
What factual circumstances show this:
- There are at least 2 other union in the company
- The 2 unions conducted a strike
WHAT IS WRONG ACCORDING TO SIR: the ER knew that there was an issue as to the majority status of the Union. Even so, it voluntarily recognized ALU as the EBR of the employees. The circumstances should have put the ER on notice of the issue of majority status of the Union.
"there was precipitate haste…"
"unusual promptitude"
"an apparent and suspicious hurry"
Show BF on the part of ER
Precipitate: sudden, too soon….
STANDARD CHARTERED BANK EMPLOYEES UNION V. CONFESSOR
F: Surface bargaining v. blue sky-bargaining
H: NO ULP in either side
-Duty to bargain does not compel either party to agree to a proposal or to require the making of a concession
SMB v. NLRC (1999)
F: in an attempt to streamline its operations, SMC laid off some of its employess. The employees and SMC underwent the grievance procedure provided in the CBA. Arguing that there was a deadlock in the grievance procedure, the Union filed a notice for strike.
H: No deadlock yet because there was still a grievance procedure
CSR: corporate social responsibility
-in SMC's case, as part of its CSR even before it became a buzzword, before dismissing its employees, SMC should first find a job among its units (when all that is required from the ER when it finds that the services of an EE is redundant is TO GIVE 30-DAY notice to affected EE and DOLE).
-it's a precedent-setting case:
- SC agreed with the ER that NLRC has positive legal duty to stop an ongoing strike/prevent an incoming strike when doing so is violative of a law/CBA
-strike:
- Deadlock in CBA
- Deadlock based in ULP
-if not strikeable, ER would file a motion to dismiss the notice of strike! (as was done in this case) But before NLRC refused to do so, saying its not their duty to prevent a threatened strike or stop an ongoing strike
- However, there is no clear express law providing that power. What NLRC/NCMB does is to convert the notice to strike into a Preventive Mediation Case, considered the notice to strike as not having been filed at all (which does not have any affect at all to Unions, who would still strike since there is no clear order from NLRC/NCMB that the strike is illegal)
- University of San Agustin: SC penalized NCBM/NLRC for not stopping an illegal strike!
SAMAHAN SA TOP FORM v. NLRC (1998)
F: During the CBA negotiations, provisions mandating ACROSS THE BOARD implementation of wage orders was not included in the CBA, with the ER promising to incorporate it in the CBA. When Wage Orders were issued, the Union insisted on the Across the Board implementation of the wage, in accordance with the minutes of the CBA negotiations. ER refused to comply, saying it is not included in the CBA.
H: Only provisions included in the CBA should be interpreted and implemented - so minutes of the CBA negotiations not binding upon the ER
-No BF bargaining:
- ER was willing to negotiate - and did negotiate!
- CBA was entered into
- No BF to insist on a position to the point of stalemate - not required to give concessions and to agree to a proposal
-it is one of management's negotiation strategies to tentatively agree to the demands of the union
-It is the union's duty to insist that the said "promise" be included in the CBA
...Whenever discussed: warn class not to be misled by some of the things the SC said:
- Minutes of the meeting walang kabuluhan unless/until find print in the CBA: here, the labor union failed to give evidence that the employer agreed on the implementation of the across the board wage increase. Union should have made that said agreement a part of the actual part of the CBA. SO MAKE IT A POINT THAT AN IMPORTANT AGREEMENT REACHED DURING THE NEGOTIATIONS BE INCLUDED IN THE CBA!!!
July 21 Labor Arbitration Lecture Notes
- Refusal to bargain
- Termination of Union president as interference on union activities
- Bargain expeditiously, in GF
- Company may retrench employees
- Employees (in an unorgainzed establishment) may form a union, then have stronger bargaining position with regards financial assistance (separation benefits, other economic assistance to the employees affected). The Union would now go to DOLE, argue that the company is not really losing, but the ER wants to dismiss them in a form of union-busting. To add more pressure, the Union would also file a notice of strike, arguing there was union-busting.
- NOT ODD: valid expression of grievances of the employees against the management; valid exercise of constitutional right of freedom of expression
- YES ODD: also incumbent upon the Union to subject their issues in a grievance machinery. Procedure they employed is not correct.
Letran v. Union of Faculty and Admin
-which ULP was accused of LETRAN:
*sir pointed out to the management prerogative to reschedule the schedule of the employees. Why considered interference? Taking consideration all factual circumstances (TOTALITY OF CIRCUMSTANCES TEST), such as that the employee dismissed is the president of the union and that the said president contested the decisions of the ER as to its refusal to bargain and failure to resolve the issue in a grievance procedure, there is definitely anti-union animus on the part of the school/ER
Lesson which should be learned from LETRAN CASE:
When the company is suffering economically. It may go either way.
*in the realm of labor relations, it is not merely one sided. Just as the employer may come up with reasons to justify retrenchment, so could the employees by unionizing.
Bargainable Issue in Collective Bargaining Negotiations
-wages, hours of work, all other terms and conditions of employment
Nonbargainable issues
-issues that are not subject to condonation and negotiation, such as the implementation of Wage Orders
Manila Fashions v. NLRC
-wage orders cannot be condoned, not subject to agreement of the parties because it is against public policy to waive it.
-cannot waive the implementation of the wage order: the employees stand in a less powerful bargaining stance than the employer
Republic Savings Bank v. CIR
-don't you find it odd that a libelous statement was made against the bank officer BUT, in effect, the right procedure was for the officer to proceed to grievance procedure than a criminal proceeding for libel against the said employees?
-this case is authority to say that CB is a never-ending, ever continuing process, and you see this at work at the grievance procedure!!!
-the body and soul of collective bargaining is the grievance procedure
-Cf Art 260: grievance machinery on implementation and interpretation of CBA and company personnel policies
SIR: Art 260 only speaks of EOJ of voluntary arbitrators (included productivity bonus, wage distortion issues). "Grievance" usually defined as anything at all that has to do with EER. It's that broad, sweeping.
…Art. 260 came into being in 1989. This case was decided in 1967.
-concepts were already floating in the air in the 60s and partially followed or implemented. The doctrine was distilled, found its way to Article 260.
Navarro v. Damasco
-rape case. The "rapist" argued that the matter should have undergone a grievance procedure. Court held that the grievance procedure should cover interpretation and implementation of the CBA procedure and company personnel policy. The issue is not a grievable matter, not a work-related incident. Court also held that it is not necessary to undergo grievance procedure, to the prejudice of the poor employee who has to wait for the grievance committee first before undergoing criminal proceeding
Can you now reconcile the holding of the SC in Navarro and Republic Savings Bank?
Republic Savings bank involved or touched upon EER, while the Navarro case did not (private matter).
*but in Navarro case, the employee was dismissed based on the Code of Conduct (which is a company personnel policy). Further, the CBA mentions that any complaint between employees may be subjected to the grievance procedure
DUTY TO BARGAIN
Tuesday, July 20, 2010
July 19 Islamic Law Lecture Notes
- Ijma (consensus of the judges/juries) & Qiyas (analogy)
- Istihsan: Equity - juristic equity (equity on the basis of the rulings of the judges based on the Q'aran and Sunnah)
- Civil law: allowed, provided it would come into existence and be delivered (must be time-bound), and there must be consent, consideration and identifiable object with particularity - has to mention the specifics of the contract
- Islamic Law: generally prohibited because it can be a cause for an inequitous relationship - cause of conflict; but if necessary, can be allowed under Istihsan (resembles contract of hire)
- Istislah- anchored on public welfare and interest
- Istishab - rule of continuity (presumption of continuity)
- e.g. a person is presumed innocent unless proven guilty. Status of innocence presumed to pervail unless proven otherwise
- Takhayyar /Tak -ha-yur/ - selection of rules from the different schools - select which rule to follow to apply to a particular problem
- Talfiq /Tal-fik/- combination of different elements; resolve a problem by resorting to a combination of rules from different schools of law
- Usually referred to in the codes
- Neo Ijtihad (1800s)
Mahul article - application of laws
2 concepts: boo hanapin si Mahul
*progress of Islamic law
1. Ijtihad (comes from the word Jahada, meaning exersion of one's outmost strenght) - from which Jihad (2 forms) was derived
-it's through Ijtihad that Islamic law was made dynamic
-unchangeable basis of Islamic law is always the Holy Qa'ran and the Sunnah (most of the legal rules are both in the same books)
-as time goes on, reinterpretation is needed. Ijtihad now deals with interpretation (outmost exertion of one's outmost intellectual faculties)
>e.g. Intoxication: wine is prohibited in the Qran (Khamr). It follows, by virtue of analogy (Qiyas), that whatever comes from intoxicating drinks are prohibited
>but the modern jurist classified all of these as Ijtihad (general)
Under Ijtihad (names depends on Schools of Law):
-e.g. sales of future commodities:
e.g. You want somebody to sew clothes for you. The clothes are not yet in existence but you necessarily have to compensate the tailor even if the clothes are not yet in existence for reasons of equity (deposit is allowed)
*1258: Sacking of Bahgdad by the Mongols. Bahgdad was at that time the capital of the Calippe. With Bahgdad under Mongol control, the Calippe invalid, the jurist declared the closing of the doors of Ijtihad. Meaning, the four Orthodox schools of law (Hanifa, Malik, Shafi'I, Hanbal) which, by the way, did not start out as schools, their rulings would stay - because new jurists cannot make new rulings
2. Taqlid (imitation)
-mere copying of the doctrines enunciated by the 4 schools of law
-the mode of jurisprudence became that of imitation since the closing of the 4 schools
After 1258, while doing Taqlid and no Neo Ijtihad (2 techniques) See page 7 of Mahul Artcle:
e.g. Matter of consent in Marriage
There are those who say that for a woman to get married under islamic law, there should always be a guardian who should give her away for marriage (but only insofar as Malik, Shafi'I laws are concerned. Hanbal school of law [far from Medina] gives more progressive interpretation - in RP, we belong to Shafi'i). In Hanifi, it is allowed when that woman already has a prior marriage + if there are no "friendly" guardians available for that woman…
…Mixed marriages (Muslim Man, Non Muslim woman): if you stick to Shafi'I, there can never be a marriage between them - especially if the guardians/parents do not consent. But if you use Takhayyar, they can interpret that the consent of a mere sibling permits the marriage, considered the consent
-started by the neo-revivalists
-not yet confirmed by body of jurists (because there is now no single body of jurists - the most suitable Ijma should come from body of jurists + accepted by the population - usually there's just an Ijma of a particular community)
e.g. Maranao Ijma once prohibited the wearing of perfumes on women (promulgated about 10 years ago): what the Muslim women do is that they are careful . But not all follow it
Report on Civil Capacity
Hermaphrodite: depends on the dominant biological functions
Intoxication: either aggravating or justifying
But under Islamic Law, it is considered a crime - always aggravating
As to injury of child based on injury on mother...
Wednesday, July 7, 2010
July 5 Islamic Law Notes
- Common law
- Civil Law
- Communist-Socialists
- Islamic Law
- Customary Law
- Example: in Sulu and Maguindanao, they have their own code - Sulu Code has been formally adopted by the Government of Sulu
- LOOK FOR THE LATEST SULU CODE: FIND IN THE BOOK OF NAJIB SALIBI?
- Worship (all acts of worship)
- Service (Articles of faith- belief in 1 God, the angels)
- Adab - Morality - social values, norms, personal etiquette - Muslims follow what the prophet Mohammad usually does. e.g. Always start with the right, use the right. Step right foot first, use right hand)
- Transactions (Muammalah)
- Punishments (Uqubah) - but not part of the Islamic law in RP
- Islamic legal system has provisions which take care of the interests and welfare of the people
- Obligatory - Fardu/Wajib (?)
- Recommend - Sunnah /Mustahab
- Forbidden - Haram
- Reprehensible
- Makruh
- Karahat tanrar
- Karahat tahrim
- Indifferent
- If you are already of the marrying age but you cannot afford to get married, marriage becomes obligatory (Wajib). Saying: "Marriage completes half of your faith. You get married twice, that is your entire faith"
- But in case a Muslim man already have the means to get married, but can no longer contain himself sexually, getting married is Fard (because he might be involved in extra-marital affairs)
- Malang v. Moson: pay attention to the evolution of law on Marriage and Divorce
- Bondagjy v. Bondagjy:
Comparative law
-method of harmonizing the different legal system in the country
RASUL
Is there any specific legal system in the Country?
-People are usually mistaken into thinking that comparative law is a set of law. But in fact it is a method of analyzing law.
-what would be a better term for Comparative law? Comparative LEGAL method/ology
-the reason we compare laws is we want to compare the differences in the different legal systems
Kinds of laws
*BADTRIP: NATAWAG AKO AT NAWAWALA ANG READINGS KO…:(
Do you agree with the classification?
-there may be other laws:
What do you now call the legal system in our country?
*Ecclectric/hybrid/mixed/pluralistic legal system (so far as family law is concerned)
What other laws may be made to a mixed legal system?
-Banking laws
-in Islamic Banks, no interest imposed on loans but it is considered as profit: the islamic Bank is considered a partner of your business, it has active participation in the business (unlike other commercial banks which would leave you alone right after the loan has been granted: regardless if you profit or not, you have to pay the loan and the interests imposed)
-Banks which are Shari'ah compliant entice Muslim investors (mostly Saudi Arabians) because they would now they are entering a lawful banking system.
-right now, we don't have a Shari'ah compliant banking system in the Philippines because the Islamic Banks still impose interests on loans. No one supervises the Islamic accounts
MAHUL Article
(read. Eto yata ung pinaphotocopy)
-boo
-concept of property
Sir wag mo na akong tawagin. Di ako nakapagbasa nung ibang articles :(
5 kinds of Shari'ah:
What are the chances of incorporating Islamic Banking laws in the Banking Laws of the Philippines? How to operationalize it in the Philippine Banking System:
-use PARTNERSHIP provisions in the Civil Code (because the relationship of the Islamic Bank and the borrowers is as partners, not borrower-lender relationship)
-the law of partnership is not being implemented up to now.
-so not really that difficult to adopt Islamic Law on Banking because it is similar to the rules of Partnership adopted in the Civil Code of the Philippines
-the Islamic bank would be the Capitalist partner, and the borrower would be the industrial partner
Rihan: islamic for Mortgage
-in the Code of Muslim Personal law, there is a mention of Islamic Mortgage
-Art175: Customary Contracts
-the provision takes you out of customary law. WHY: all transactions which impose interests are prohibited under Muslim Laws
...Back to MAHUL
Qualifications of Acts (note the Arabic terms, pronounciation…)
e.g. Acts of Worship, 5 day obligatory prayer, Fasting during Ramadan, giving taxes
Fard /Far-du/ - more stringent category | Wajib |
If you don't do it, you not only sin but also you are considered a non-believer | Well it is obligatory, if you don't do it you sin but you are still considered a Muslim |
e.g. prayers not obligatory in nature, good actions (charity/donation) - different from "Hiba" which is usually given to a person who is not related to you but you care for (gift)
-Haram is really the extreme. Dapat indifferent muna
e.g. Smoking.
2 categories
-neutral. Not something that is obligatory but not prohibited. No moral essence.
e.g. going to school? all acts which have no moral judgment involved
System of Reward and Penalty
Qualification of acts | + | - |
Fard/wajib (Obligatory) | Rewarded | Punished |
Sunnah (recommendatory) | R | Neutral |
Mubab (indifferent) | n | n |
Makruh (reprehensible) | n | Rewarded |
Haram | Punihsed | Rewarded |
Marriage as OBLIGATORY
For next meeting: read
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