A VISION FOR CLEAN, HONEST AND AFFORDABLE ELECTIONS

A credible election body is an integral part of any democratic system. Without such qualification, meaning, credibility, the republican institutions will not gain the absolute trust of the people. There will constantly be doubts not only on the efficiency of the government, but also on the sincerity and integrity of those in public service to care for the people. Consequently, mistrust, misconception and corruption would continuously plague society since the common perception is that the misconcepted government does not really represent the people's heart, and automatically, their welfare. Instead, it promotes the interest of the few and the powerful. Even worse, a mistrusted or corrupted system would thus precipitate misconcepted, mistrusted and corrupted results at the expense of the people, as well as the government.

At the end of the day however what matters is the cyclic circuitous partnership of the people in general and public servants in a necessity called right and reliable nation building.

The Philippines has already devoted years of sacrifices and hard work spending millions of pesos in order to upgrade the quality of elections in the country. We have gone into automation, and biometric documentation of registered voters. The rules of procedure in election cases and related matters have been revised, amended and continuously improved if only to be responsive to practically every specific situations or elections. Even the Supreme Court has promulgated landmark cases which are now considered jurisprudence. Special measures have been passed by Congress to give more teeth to election related penal laws. Resolutions have been formulated and approved by the Comelec to govern the conduct of elections, and practically to instill discipline among the electorate and the candidates as well as political parties.

Every Filipino who voted is marked with an indelible ink in their fingernail. What if in the mind and the heart of every Filipino, the desire for a real and credible election has been indelibly inked with the unfaltering commitment to true and right national building? Perhaps, just may be, the once "impossible Dream" of a right and reliable elections will finally be a catalytic reality for the benefit of all the people and their credible government.

In other words, after everything has been said and done, why is it that we are still encountering the same problems of, among others, vote-buying, election overspending, "flying voters", election related violence and terrorism? Why is it that despite the stringent safeguards installed to have clean and honest elections, a lot of cases are resolved with findings of election fraud? Why is it that it takes time for the Commission on Elections to resolve cases particularly but not limited to those involving barangay contests? Why is it that simple and basic guidelines governing election materials and propaganda are not being followed? Why is it that notwithstanding thousands of election law violations, only a handful have been charged in courts?

When will these all end?

It may not. After all, politics have been ingrained in the imagination, dreams, and everyday lives of our fellow Filipinos.

Wrong. There is light at the end of the tunnel if and when the people are guided through proper election values and ethics. The administration of His Excellency, President Benigno S. Aquino III is leading our nation towards this direction, in general, when he heeded the cry of the people for change and consequently entered into a social contract with them for transformational change and leadership.[1]

Therefore, following the lead, the COMELEC is obviously faced with such enormous tasks of :

(1) completely cleansing the voters' list;

(2) simplifying procedures and processes to reduce costs and expenses on the part of the voters, candidates, or election litigants thereby making elections and subsequent contests within the reach of everyone;

(3) recommending immediate and long term reforms in the electoral system;

(4) expeditiously disposing election cases in a manner that decisions should not only be a determination of the true will of the people, but must also be timely, to make such true will as expressive of good governance;

(5) improving or enhancing the automotive election system to make it viable even for barangay elections and recall elections;

(6) attending to its administrative concerns involving COMELEC employees' welfare and benefits as well as improving working conditions and offices all over the country;

(7) studying and implementing further means to establish a cost-effective conduct of elections here and abroad;

(8) instituting better access to facilities that will enable persons with disabilities, senior citizens and women with special concerns (primarily, pregnancy) to exercise their rights to suffrage with ease or convenience;

(9) reviewing current election laws and the codification of all resolutions to be applied universally in any elections thereby minimizing the issuance and promulgation thereof, in toto, every now and then, even if only certain provisions have been changed or modified; and

(10)increasing the benefits of and protection to public school teachers and other COMELEC designated poll workers.

Some of the concrete reforms may be as follows:

a) Accreditation of poll watchers shall be done upon completion of a prescribed training conducted by the COMELEC. A certification made by the poll watchers on the minutes shall bind the candidates represented. This will eliminate frivolous election contests at the first level.

b) Initiatory and responsive pleadings in election contests shall be in a prescribed form and the specified allegations must be supported by judicial affidavits and documentary exhibits. Failure to comply with this requirement shall be a ground for automatic dismissal without any right for reconsideration or appeal.

c) Barangay election contests may be elevated only on certiorari and in the same case injunctive relief's may be prayed for. This will reduce the cost of litigation and may even expeditiously dispose barangay cases.

d) All proceedings shall be considered as summary in nature unless the COMELEC declares otherwise on certain specific grounds such as technical examinations and those related to matters which may attach certain criminal liabilities.

e) The use of voter's identification cards shall be compulsory in nature. The tampering or illegal use thereof shall be a penal offense. It may serve as a senior citizen card, among others.

f) Appointment of COMELEC Marshalls to be considered as persons in authority who shall be highly trained in the enforcement of election laws.

g) Registration of printing press with the COMELEC or its field offices prior to acceptance of printing works from candidates or persons.

h) Designation of permanent poster areas with official identifying markers to be installed by the COMELEC.

i) Registration of media companies (newspaper, television, radio etc.) with the COMELEC or its field offices prior to acceptance of campaign materials or advertisements; and

j) Enactment of laws which will increase the penalties for certain election offenses and expanding the definition of electoral sabotage.

There is no reason to be overwhelmed by the fact that there is so much work yet to be done. What is important is that they can be done, and work must either be continued or start now, without let up, and with the vision for genuine change in mind.

May God help us and . . . "that in all things, God may be glorified."

© caloy caliwara 2013

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[1] http://www.gov.ph/about/gov/exec/bsaiii/platform-of-government/ as posted by way of a link at quezonianconscience.blogspot.com

RIGHTS AND DUTIES OF HOMEOWNER'S ASSOCIATION MEMBER

As provided under Republic Act No. 9904 otherwise known as "AN ACT PROVIDING FOR A MAGNA CARTA FOR HOMEOWNERS AND HOMEOWNERS' ASSOCIATIONS, AND FOR OTHER PURPOSES", the rights and duties of a member are as follows:

 

"x x x

 

Section 7. Rights of a Member. - An association member has full rights:

 

(a) to avail of and enjoy all basic community services and the use of common areas and facilities;

(b) to inspect association books and records during office hours and to be provided upon request with annual reports, including financial statements;

(c) to participate, vote and be eligible for any elective or appointive office of the association subject to the qualifications as provided for in the bylaws;

(d) to demand and promptly receive deposits required by the association as soon as the condition for the deposit has been complied with or the period has expired;

(e) to participate in association meetings, elections and referenda, as long as his/her bona fide membership subsists; and

(f) to enjoy all other rights as may be provided for in the association bylaws.

 

Section 8. Duties of a Member. - A member shall have the following duties:

 

(a) to pay membership fees, dues and special assessments;

(b) to attend meetings of the association; and

(c) to support and participate In projects and activities of the association.

 x x x"

Presumption Of Fraud When Property Is Alienated By Debtor

The ruling in MR Holdings, Ltd. v. Sheriff Bajar is pertinent and instructive:

Article 1387 of the Civil Code of the Philippines provides:

 

"Art. 1387. All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation.

 

Alienations by onerous title are also presumed fraudulent when made by persons against whom some judgment has been rendered in any instance or some writ of attachment has been issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party seeking rescission

 

In addition to these presumptions, the design to defraud creditors may be proved in any other manner recognized by law and of evidence."

 

This article presumes the existence of fraud made by a debtor.  Thus, in the absence of satisfactory evidence to the contrary, an alienation of a property will be held fraudulent if it is made after a judgment has been rendered against the debtor making the alienation.This presumption of fraud is not conclusive and may be rebutted by satisfactory and convincing evidence.  All that is necessary is to establish affirmatively that the conveyance is made in good faith and for a sufficient and valuable consideration.

Source : http://sc.judiciary.gov.ph/jurisprudence/2009/october2009/160236.htm

Deed of Sale Valid Between Parties Even If Not Notarized

THE ESTATE OF PEDRO C. GONZALES and HEIRS OF PEDRO C. GONZALES, Petitioners, vs. THE HEIRS OF MARCOS PEREZ,  Respondents (THIRD DIVISION, G.R. No. 169681, November 5, 2009, has provided that:

"On the question of whether the subject Deed of Sale is invalid on the ground that it does not appear in a public document, Article 1358 of the same Code enumerates the acts and contracts that should be embodied in a public document, to wit:

            Art. 1358. The following must appear in a public document:

(1)      Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein are governed by Articles 1403, No. 2 and 1405;

(2)   The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains;

(3)   The power to administer property, or any other power which has for its object an act appearing or which should appear in a public document, or should prejudice a third person; and

(4)  The cession of actions or rights proceeding from an act appearing in a public document.

            All other contracts where the amount involved exceeds five hundred pesos must appear in writing, even a private one. But sales of goods, chattels or things in action are governed by Articles 1403, No. 2 and 1405.

          On the other hand, pertinent portions of Article 1403 of the Civil Code provide as follows:

            Art. 1403. The following contracts are unenforceable, unless they are ratified:

x x x x

            (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents:

(a)       An agreement that by its terms is not to be performed within a year from the making thereof;

            x x x x

(e)   An agreement for the leasing for a longer period than one year,    or for the sale of real property or of an interest therein;  x x x x

          Under Article 1403(2), the sale of real property should be in writing and subscribed by the party charged for it to be enforceable. In the case before the Court, the Deed of Sale between Pedro and Marcos is in writing and subscribed by Pedro and his wife Francisca; hence, it is enforceable under the Statute of Frauds.

          However, not having been subscribed and sworn to before a notary public, the Deed of Sale is not a public document  and, therefore, does not comply with Article 1358 of the Civil Code.

          Nonetheless, it is a settled rule that the failure to observe the proper form prescribed by Article 1358 does not render the acts or contracts enumerated therein invalid. It has been uniformly held that the form required under the said Article is not essential to the validity or enforceability of the transaction, but merely for convenience. The Court agrees with the CA in holding that a sale of real property, though not consigned in a public instrument or formal writing, is, nevertheless, valid and binding among the parties, for the time-honored rule is that even a verbal contract of sale of real estate produces legal effects between the parties. Stated differently, although a conveyance of land is not made in a public document, it does not affect the validity of such conveyance. Article 1358 does not require the accomplishment of the acts or contracts in a public instrument in order to validate the act or contract but only to insure its efficacy."

"my intention was not to sell!"

A property owner was made to sign a deed of sale but the intention was actually a loan with the property as security. Can he recover his property? The answer is, yes. Because it may be considered as an equitable mortgage.

As held by the Supreme Court "an equitable mortgage is defined as one which although lacking in some formality, or form or words, or other requisites demanded by a statute, nevertheless reveals the intention of the parties to charge real property as security for a debt, and contains nothing impossible or contrary to law. Its essential requisites are:

1.  That the parties entered into a contract denominated as a contract of sale; and

2.  That their intention was to secure an existing debt by way of a mortgage.

Articles 1602, 1603 and 1604 of the New Civil Code were designed to prevent circumvention of the laws and the prohibition against the creditor appropriating the mortgaged property.  Courts have taken judicial notice of the well-known fact that contracts of sale with right of repurchase have been frequently used to conceal the true nature of a contract, that is a loan secured by a mortgage. The wisdom of the provisions cannot be ignored nor doubted considering that in many cases unlettered persons or even those of average intelligence invariably find themselves in no position whatsoever to bargain with the creditor. Besides, it is a fact that in times of grave financial distress which render persons hard-pressed to meet even their basic needs or answer an emergency, such persons would have no choice but to sign a deed of absolute sale of property or a sale thereof with pacto de retro if only to obtain a much-needed loan from unscrupulous money lenders.

Under the wise, just and equitable presumption in Article 1602, a document which appears on its face to be a sale - absolute or with pacto de retro - may be proven by the vendor or vendor-a-retro to be one of a loan with mortgage.  In this case, parol evidence becomes competent and admissible to prove that the instrument was in truth and in fact given merely as a security for the payment of a loan.  And upon proof of the truth of such allegations, the court will enforce the agreement or understanding in consonance with the true intent of the parties at the time of the execution of the contract. Sales with a right to repurchase are not favored.  As before, instruments shall not be construed to be sales with a right to repurchase, with the stringent and onerous effects which follow, unless the terms of the document and the surrounding circumstances so require.  Whenever, under the terms of the writing, any other construction can be fairly and reasonably inferred, such construction will be adopted and the contract construed as a mere loan unless the court sees that, if enforced according to its terms, it is not an unconscionable pact."

Source : http://sc.judiciary.gov.ph/jurisprudence/1997/jul1997/115033.htm

Notarized Authority To Sell

In the case of LEONCIA MANUEL & MARINA S. MUDLONG, Petitioner - versus  - LEONOR SARMIENTO, Respondent (Third Division, G.R. No. 173857, March 21, 2012), among the main issues raised is : whether or not the notarized exclusive authority to sell granted to respondent is valid.

The Supreme Court held that the Court of Appeals was correct in stating thus:

"The trial court correctly found that the authority to sell executed by Marina in favor of Leonor was validly executed. First, Leonor's authority to sell was notarized. Thus, there is a presumption that it had been validly executed. A notarized document has in its favor the presumption of regularity, and can be contradicted only by clear and convincing evidence. Second, while insisting that the authority to sell form had been blank when she signed it, Marina does not deny the genuineness of her signature thereon. Third, the authority to sell presented by Leonor to Marina was a pre-printed form, with the title "Authority to Sell" clearly spelled out on top of the document.  Even if it were true that the details of the form were not yet inserted therein when Marina signed it, she knew, or should have known, from its title, that she had signed an authority to sell in favor of Leonor. Thus, her having signed it in blank was an implied authorization for Leonor to fill it up according to their agreement. In the absence of clear and convincing evidence that Marina and Leonor had an agreement different from that appearing in the signed authority to sell, it is presumed that the signed contract embodies their complete and true agreement. The presumption of regularity, the evidentiary weight conferred upon public documents with respect to its execution, as well as the statements and the authenticity of the signatures thereon, therefore, stand."