WHETHER SUCH ACT OF DOWNLOADING IS INFRINGEMENT OR NOT, SHOULD SIMILAR LAWS TO THE US PROPOSED LEGISLATION “SOPA/PIPA, “UK’s DIGITAL ECONOMY ACT 2010,” FRANCE’s “HAPODI LAW,” AND NEW ZEALAND’s “THREE STRIKES”RULE.

Introduction

Sometime in August 2012, when Senator Vicente Sotto delivered his speech opposing the Reproductive Health (RH) Bill, the issue on online piracy, plagiarism and copyright infringement had been again on its peak, when it was alleged by the groups  pushing the passage of the said bill that Sotto copied entirely and almost verbatim from an article of a US blogger Sarah without attribution, except for the expert opinion that Sarah also used as a source.

With the easy access of the articles available online, fear among the bloggers, writers online for an unauthorized use of their work has become their individual concerns. In fact, a lot of propositions have been circulating for the passage of a bill protecting works online.

Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

In the Philippines, "Piracy" is slang for copyright infringement, it is usually used to describe the unlawful copying of software, videogames, movies or MP3s. Copyright law gives a creator of software, music, literature and other works a limited monopoly to reproduce or distribute in the created work. If a person is accused of piracy, then someone is claiming that he/she has violated their copyright by copying part or all of their work without authorization, or have enabled other people to produce such copies.

IS THE ACT OF DOWNLOADING COPYRIGHTED WORKS, SHARED BY OTHERS WHO ARE NOT COPYRIGHT OWNERS OF SUCH WORKS, AN ACT OF COPYRIGHT INFRINGEMENT ON THE PART OF DOWNLOADER?

Copyright gives the owner exclusive rights to reproduce, adapt, publicly distribute, perform and display their work. Nonetheless, the law allows "fair use" of copyrighted material. Fair use permits, in certain circumstances, the use or copying of all or a portion of a copyrighted work without the permission of the owner.

Original expressions of ideas are copyrighted for a certain period of time (generally the lifetime of the author, and for 50 years after his death). Copyrighted materials are everywhere around you: songs, movies, TV shows, photographs, magazines, books, software, plays and Web sites are just a few things that are subject to copyright protection.

The copyright of a work gives the holder a limited monopoly on reproduction, distribution, and display of that work. When you buy or are given a copyrighted work, you get limited use of it, but not the right to distribute it. The material fact that a downloader may be avoided from copyright infringement is that, he must only use it for personal use. A very simple example is when a person downloads for his personal use (for the purpose of watching the very controversial movie “The Mistress”. He is not liable for copyright infringement when he only use it for his own personal use. However, it would be a different story now when that person makes the reproduction of the movie for profit. In that case, he becomes liable for copyright infringement.  Hence, in my opinion, if a copyrighted work has been shared by others who are not copyright owners of such work, it does not simply constitute copyright infringement on the part of downloader. The element of purpose is necessary.

WHETHER SUCH ACT OF DOWNLOADING IS INFRINGEMENT OR NOT, SHOULD SIMILAR LAWS TO THE  US PROPOSED LEGISLATION “SOPA/PIPA, “UK’s DIGITAL ECONOMY ACT 2010,” FRANCE’s “HAPODI LAW,” AND NEW ZEALAND’s “THREE STRIKES”RULE.

SOPA/PIPA and other similar laws are pieces of legislation whereby purpose of these bills is to make it harder for sites — especially those located outside the United States, for example, to sell or distribute pirated copyrighted material such as movies and music as well as physical goods.

Now, copyright law provides incentives for creating. One of the incentives for creating software, music, literature and other works is being able to reap the financial benefits as the creator. Illegitimate distribution of copies may prevent the copyright holder from benefiting from the sale of legitimate copies of the product. The theory is that significantly fewer people would buy copies from the copyright holder if other copies were available cheaper or for free. When the act of piracy is supported with a law on copyright, the act mere act of downloading would in effect constitute infringement.

SHOULD THE PHILIPPINE GOVERNMENT ENTER AND RATIFY “ACTA” TREATY TO REMEDY ONLINE PIRACY? WILL SUCH LEGISLATION BE VIOLATIVE OF CONSTITUTIONAL RIGHTS ON FREE EXPRESSION AND PRIVACY?

No. ACTA is not essentially a remedy for online piracy.

I think, the Philippines would opt to enter with this treaty when the proper laws and procedure for the same are laid in its finality. Eventually, by entering and ratifying this act, the Philippines is bound to observe the treaty by which it is a signatory. Hence, it would only make the Filipino online users vulnerable to criminal offense because a country which for one, is a signatory has the right to enforce its copyright rules under its local laws among participating nations. However, since freedom of expression and privacy are rights which are not always absolute, I for one, could not say that entering such treaty would outrightly be violative to the abovementioned rights. Since the threat of infringement is always present where web innovations are sprouting rapidly, it is essential for all users of the Internet and to copyright owners to remain vigilant in the face of future threats, and vice versa.

ANNA JANE D. LIHAYLIHAY vs. JUDGE ALEJANDRO T. CANDA

ANNA JANE D. LIHAYLIHAY vs. JUDGE ALEJANDRO T. CANDA

A.M. No. MTJ-09-1730 June 18, 2009

          Before the Court are two complaints for grave misconduct filed by Anna Jane D. Lihaylihay (Lihaylihay), Clerk III, Regional Trial Court (RTC), Branch 28, Liloy, Zamboanga del Norte, against Judge Alejandro T. Canda (Judge Canda), Municipal Circuit Trial Court (MCTC), Liloy-Tampilisan, Judicial Region IX, Zamboanga del Norte.

FACTS:

          On 25 February 2005, Sheriff IV Camilo Bandivas (Sheriff Bandivas) of the RTC retired from the service. Lihaylihay alleged that Judge Canda asked Process Server Emmanuel Tenefrancia (Tenefrancia) of the RTC to apply for the position vacated by Sheriff Bandivas. To the dismay of Judge Canda, a certain Jesus V. Alimpolo (Alimpolo) applied for the vacated position. Judge Canda strongly opposed Alimpolo’s application.

          Judge Canda was of the impression that Lihaylihay was assisting Alimpolo in his application for the position of Sheriff IV. On 5 January 2006, Judge Canda sent a text message to Lihaylihay stating, “Maayo tingali modistansya ka anang mga tawhana kay basin masabit ka, pakiusap lang ni.” Taking the text message as a threat, Lihaylihay reported it to the police and requested that a blotter entry be made. On 6 January 2006, Judge Canda sent another text message stating, “For maliciously causing it to appear as threatening in the police blotter of what is otherwise a very harmless text message of appeal I consider the same as declaration of war, don’t worry you will have your owned fair share of trouble in due time.”

          RTC, Judge Canda accused Lihaylihay of (1) actively supporting Alimpolo; (2) using the facilities of the RTC in preparing Alimpolo’s medical certificate; (3) being at the beck and call of Alimpolo; (4) blatantly disregarding the Code of Conduct for Court Personnel; (5) fraudulently scheming against the court; (6) performing highly contemptuous acts; (7) being unworthy of her position as Clerk III; (8) failing to distance herself from Alimpolo; (9) failing to stay neutral; (10) having a distorted sense of values that deserves disciplinary action; (11) being arrogant, insolent and cocky; and (12) disrespecting him. He added that:

          And speaking of Ms. Lihaylihay, it is the observation of the Court employees and the public that her personality does not speak well of her employment with the judiciary which is characterized by the inappropriateness of her attire. She exudes herself like a GRO or going to a party when reporting to work, not to mention her very undignified appearance as a chain smoker which is akin to a WHORE and who does not hesitate to smoke inside the office in the very eyes of her office mates and the public. But what is very disgusting in spite of her being very new to her position is her being an UPSTART who doesn’t care to get involve [sic] in matters that earns the ire and contempt of the court users and her co-workers. She is that repulsive “PAKIALAMERA” type very few would want to associate with. (Emphasis supplied)

         

          The 11 January 2006 letter was published in the 15 January 2006 issue of the Mindanao Observer. The front page headline read, “Huwes miprotesta batok sa seksi nga docket clerk.” The text of the letter was printed in the newspaper with the omission of words which were deemed unprintable.

          In her comment Lihaylihay stated that (1) she did not participate in Alimpolo’s application for the position of Sheriff IV; (2) Judge Canda ridiculed, humiliated, and besmirched her reputation by publishing in the newspaper the 11 January 2006 letter describing her as a GRO and a whore; (3) Judge Canda’s text messages threatened her; and (4) she followed the office dress code. Lihaylihay alleged that Judge Canda wanted Tenefrancia to apply for the position of Sheriff IV so that Tenefrancia’s position as process server would become vacant — Judge Canda’s son, Alejandro Canda, was qualified for the position of process server. Lihaylihay also alleged that, before the present case started, Judge Canda sent her several indecent text messages stating, “You’re sexy today,” “I missed your gorgeous face,” and “I missed your golden voice when you sing.” Lihaylihay also alleged that she was shocked and disgusted when Judge Canda invited her to go out of town with him.

          Alan D. Marapao (Marapao), publisher and editor of Tingog Peninsula, contacted Lihaylihay. He asked her if he could interview her, have a copy of her 20 January 2006 comment, and take her picture. Lihaylihay agreed. Without asking for Lihaylihay’s permission, Marapao published the 20 January 2006 comment in the 22 January 2006 issue of the Tingog Peninsula. Irked, Judge Canda filed a criminal case for libel against Lihaylihay.

          Lihaylihay filed a complaint charging Judge Canda of (1) bullying her; (2) ridiculing, humiliating, and besmirching her reputation by publishing in the newspaper the 11 January 2006 letter describing her as a GRO and a whore; (3) sending her threatening text messages; and (4) sending her indecent text messages. The case was docketed as MTJ-06-1659.

ISSUE:

          Whether or not Judge Canda is liable for gross misconduct by humiliating and sending indecent messages to Lihaylihay.

HELD:

          Judge Canda’s acts of (1) threatening Lihaylihay with her “fair share of trouble in due time”; (2) filing administrative complaints and a criminal case to harass her; (3) describing her as a “GRO,” “undignified,” a “whore,” “disgusting,” “repulsive,” “pakialamera,” “offensive,” “demeaning,” and “inappropriate”; and (4) publishing such foul remarks in the newspaper are very unbecoming a judge. The image of the judiciary is reflected in the conduct of its officials and Judge Canda subjected the judiciary to embarrassment.

          WHEREFORE, the Court finds Judge Alejandro T. Canda, Municipal Circuit Trial Court, Liloy-Tampilisan, Judicial Region IX, Zamboanga del Norte, GUILTY of GROSS MISCONDUCT CONSTITUTING VIOLATIONS OF THE CODE OF JUDICIAL CONDUCT

EVA LUCIA Z. GEROY v. HON. DAN R. CALDERON

EVA LUCIA Z. GEROY v. HON. DAN R. CALDERON

A.M. No. RTJ-07-2092, 08 December 2008, THIRD DIVISION,

The Court has not been sparing in its exhortation of judges that they should avoid impropriety and the appearance of impropriety in all activities. No position is more demanding as regards the moral righteousness and uprightness of any individual than a seat on the Bench; thus, their personal behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach, for they are, as they so aptly are perceived to be, the visible representation of law and of justice. A judge traces a line around his ojjicial as well as personal conduct, a price he has to pay for occupying an exalted position in the judiciary, beyond which he may not freely venture. Judge Dan R Calderon failed to adhere to the exacting standards of morality and decency which every member of the judiciary is expected to observe. Judge Calderon is a married man, yet he engaged in a romantic relationship with Eva Lucia Z. Geroy. Granting arguendo that Judge Calderon's relationship with Geroy never went physical or intimate, still he cannot escape the charge of immorality, for his own adeuissions show that his relationship with her was more than professional, more than acquaintanceship, more than friendly.

FACTS:

Petitioner, Eva Lucia Z. Geroy, met respondent Judge Dan R. Calderon through her cousin at a Rotary Club dinner. Thereafter, Geroy proceeded to constantly commWlicate with him, and, soon enough, meet regularly with him. As weeks progressed, Judge Calderon would frequent her home, and she would also visit and sleep at his residence a number of times. Judge Calderon gave her food and gifts, and subsequently lent her money to enrol in a caregiver course and establish an e-load business. He also entrusted her with personal errands. According to Geroy, she and Judge Calderon consistently engaged in activities such as dining in public places, watching movies, malling, shopping for groceries and hearing mass together -- in sum, doing things and acting like a pair of lovers. However, also according to Geroy, she soon felt abused in her relationship with Judge Calderon, as he would ask her to take pictures of both of them naked after sexual contact; or make her utter vulgar words during sexual intercourse; or when she was requested by Judge Calderon to purchase abortive pills for his son, whose girlfriend was then pregnant. Subsequently, she had become the recipient of threatening calls and text messages from Judge Calderon's wife and his other relatives. Judge Calderon himself, according to Geroy, soon used abusive and hateful language in addressing her towards the end of their relationship whenever Geroy attempted to talk with him - once, at Xavier University, where Judge Calderon was a professor; and one other time at a restaurant when Geroy saw him with another woman, among other instances. On the other hand, Judge Calderon claims that from his initial meeting with Geroy at the said Rotary Club event, Geroy had already been hatching a malicious plan to extort money from him. Judge Calderon alleged that Geroy presented herself as one in dire need of financial help, and that, given his generosity, Judge Calderon had only willingly extended help through loans for Geroy's caregiver course and e-Ioad business, as well as compensation for odd jobs such as encoding cases and test questions for him, since Geroy allegedly told him that she was unemployed. Soon, according to Judge Calderon, Geroy would appear at his residence unannounced, on the pretext that she had incidentally been in the neighborhood. Judge Calderon, in turn, would invite her into his home and offer her snacks. After a number of such visits, according to Judge Calderon, Geroy started to broach topics with sexual undertones, and made insinuating remarks that it was perfectly fine for married men to have paramours. According to Judge Calderon, he soon firmly turned down her subtle advances and informed her that he would no longer extend her financial help. Thereafter, Geroy started harrassing Judge Calderon and his family, leading him to file a case against her for malicious mischief and slander by deed with the Office of the City Prosecutor.

Geroy counter-charged Judge Calderon for violation of Republic Act (R.A.) 9262 (Violence Against Women and Their Children Act). The Court redocketed the complaint as a regular administrative order and referred it to the Executive Justice of the Court of Appeals, Cagayan de Oro Station for investigation, report and recommendation. The InvestigatingJustice of the Court of Appeals proof in Judge Calderon's admissions on the witness stand that there indeed existed an illicit relationship between him and Geroy. Geroy, for her part, was also able to reveal intimate facts about Judge Calderon as proof of their romantic relationship, such as the location of skin tags on hidden parts of his body, and knowledge of the ins and outs of Judge Calderon's residence. The Investigating Justice it sufficient to suspend Judge Calderon for six months as penalty for grossly immoral conduct, instead of dismissing him outright from the service (as Geroy had initially prayed for in her complaint), taking into consideration the length of Judge Calderon's service in the judiciary and for the reason that this was the first time that he had been charged for an administrative offense.

ISSUE:

Whether or not Judge Dan R. Calderon should be dismissed from service for grossly immoral conduct because of his alleged relationship and dealings with Eva Lucia Z. Geroy

HELD:

Petition GRANTED.

The Court has not been sparing in its exhortation of judges that they should avoid impropriety and the appearance of impropriety in all activities. No position is more demanding as regards the moral righteousness and uprightness of any individual than a seat on the Bench; thus, their personal behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach, for they are, as they so aptly are perceived to be, the visible representation of law and of justice. A judge traces a line of his official as well as personal conduct, a price he has to pay for occupying an exalted position in the judiciary, beyond which he may not freely venture. The complainant, in administrative proceedings, has the burden of proving by substantial evidence the allegations in her complaint, i.e., that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion; the Court finds that the complainant in this case was able to discharge such burden. As correctly found by the Investigating Justice, Geroy was able to support her charge of immorality against Judge Calderon and has shown that the latter had not exhibited the ideals and principles expected of a magistrate. The disclosure by Geroy of very intimate facts about respondent and respondent's own seemingly innocuous admissions clearly reveal the existence of an illicit affair.

Geroy would not have known personal information about Judge Calderon if they really did not have an intimate physical relationship. Geroy related in detail her relationship with Judge Calderon and the latter could only offer general denials. Even then, he could not completely deny some communications which transpired between him and complainant which betrayed his claim of a purely platonic relationship. The bottom line is that Judge Calderon failed to adhere to the exacting standards of morality and decency which every member of the judiciary is expected to observe. Judge Calderon is a married man, yet he engaged in a romantic relationship with Geroy.

The Court agrees, however, that this is Judge Calderon's first administrative infraction since he took his office as judge on January 3, 1997. It should be considered as mitigating his liability. In view thereof, the Court finds the recommended penalty of suspension for six months without salary and other benefits, with a stem warning as recommended by the OCA, to be sufficient in this case.

GERALDINE P. DIZON vs. HIYASMIN L. CAMPOA.M. No. P-04-1774. February 9, 2004

GERALDINE P. DIZON, complainant, vs. HIYASMIN L. CAMPO, Court Stenographer, MCTC - Capas, TARLAC, respondent.

A.M. No. P-04-1774. February 9, 2004

FACTS:

This case stemmed from the Letter-Complaint dated March 5, 2002, filed by Geraldine P. Dizon against Hiyasmin L. Campo, Court Stenographer of the Municipal Circuit Trial Court (MCTC), Capas, Tarlac, for Immorality.

Complainant alleged that respondent who is a single mother of a nine-year-old child was having an illicit relationship with her husband, Arnel T. Dizon. On March 3, 2001, according to the complainant, her husband admitted his relationship with the respondent who was then already one month pregnant. She met with respondent in order to beg the latter to leave her husband and respondent answered “I will” to the plea. However, respondent and complainant’s husband continued their illicit relationship still. On December 19, 2001, complainant received a text message from respondent that complainant’s husband loves her and was willing to leave his family for her.

On March 4, 2002, complainant went to the MCTC of Capas, Tarlac, where she confronted respondent about the illicit relationship inside the chamber of Judge Panfilo Valdez, Sr. Respondent allegedly not only admitted her relationship with complainant’s husband but also stated that she was pregnant. Pleading to respondent that she leave her husband, complainant offered financial support. Respondent refused the offer, stating that she is working and that all she needs is complainant’s husband.

Attached to the Letter-Complaint was the Affidavit of Amelita Tanglao Dizon, the sister of Arnel T. Dizon, wherein she stated that she knew of the affair between her brother with respondent as she often saw them together at the Municipal Hall where she is also working. Once during a heavy traffic, so she narrated, she approached and knocked on the car where Arnel and respondent were riding but the two ignored her.

Respondent denied the charges. She alleged that complainant’s husband, a member of the Sangguniang Bayan of Capas, Tarlac, became her acquaintance because of their common place of work. Hence, it was not infrequent that she and Arnel would be seen talking with each other in public within the compound of the Municipal Hall. It was only in the year 2001 that she found out that some employees attributed malice to her acquaintance with Arnel Dizon. Respondent denied having sent text messages to complainant. She also denied that she was pregnant and claimed she knew nothing about the alleged admission of Arnel on the matter. To prove the point she submitted a Medical Certificate attesting to the fact that she did not get pregnant within the preceding three months.

Complainant filed a Motion to Admit Additional Evidence attaching thereto a Certification dated August 9, 2002, from the Civil Registrar confirming the marriage that took place on May 28, 2002, between Arnel T. Dizon and respondent.

On October 15, 2002, complainant filed another Motion to Admit Additional Evidence dated October 4, 2002, attaching thereto the Application for Marriage License dated May 17, 2002, of respondent and Arnel.

Respondent filed a Manifestation with Motion for Reconsideration dated February 5, 2003, praying that she be allowed to resign, she claimed that several months after the filing of the administrative complaint, she decided to ask the indulgence of the OCA to allow her to resign even though, as she claimed, she was an effective and efficient court stenographer. The recommendation of the OCA allowing her resignation was simply noted pending the submission of the report of the investigating judge. Respondent admitted that Arnel T. Dizon courted her. Even when the administrative case had already been filed, she was made to believe by Arnel T. Dizon that he was not lawfully married and has in fact, separated from complainant Geraldine Dizon. Respondent further admitted that since she relied on Arnel Dizon’s allegations that he was not legally married, respondent signed an application for marriage license and in fact signed a marriage contract with Arnel Dizon. Respondent is tall and pretty and it is not difficult to accept her explanation that Arnel Dizon courted her and was able to convince her that he (Arnel) was not legally married to complainant Geraldine Dizon. It was only later on that she came to her senses and realized that she could not be happy with Arnel Dizon as he has already two children. The respondent filed an annulment suit before the RTC at Mabalacat, Pampanga. Respondent further alleged that she filed a letter to the Honorable Supreme Court begging that she be allowed instead to resign as court-stenographer. Even assuming that she be allowed to resign, this will not abate the progress of this administrative case. But then, the respondent has shown remorse for what she had done. She had filed an annulment suit to annul her marriage with Arnel Dizon. There is really no evidence that when she [had or when] started her relationship with Arnel Dizon, [that] she was fully aware that Arnel Dizon was married (lawfully or illegally) with complainant Geraldine Dizon.

ISSUE: Whether or not text messages sent by Campo to Dizon (wife) will be given legal recognition in court and therefore she is guilty of immorality.

HELD:

Yes.  By agreeing to marry a man during the subsistence of the latter’s marriage to another person, respondent subjected both herself and her paramour to the risk of criminal prosecution. Also, while it appears that Arnel had courted respondent, the fact remains that she entertained the advances of a married man. Respondent’s subsequent filing of an action for the annulment of her marriage to Arnel does not extenuate her liability.

WHEREFORE, the Court finds respondent Hiyasmin L. Campo GUILTY of immorality and hereby imposes upon her the penalty of suspension for six (6) months and one (1) day without pay.

TERESITA G. NARVASA VS. BENJAMIN A. SANCHEZ, JR. G.R. No. 16944 March 26, 2010

TERESITA G. NARVASA vs. BENJAMIN A. SANCHEZ, JR.

       G.R. No. 16944 March 26, 2010

FACTS:

         The parties to this case are employees of the Municipality of Diadi, Nueva Vizcaya (the LGU). Petitioner Teresita G. Narvasa is a senior bookkeeper while respondent Benjamin A. Sanchez, Jr. is the municipal assessor.

          The instant case stemmed from three cases of sexual harassment filed separately against respondent by petitioner along with Mary Gay P. de la Cruz and Zenaida M.Gayaton, who are also employees of the LGU. De la Cruz claimed that, sometime in February 2000, respondent handed her a note saying, “Gay, I like you.” Offended by respondent’s inappropriate remark, de la Cruz admonished him for giving her such a note and told him that she would give the note to his wife. Respondent then grabbed the note from her and tore it into pieces.  However, this first incident was followed by a message sent to De la Cruz sometime in March 2002 in which he said, “Ka date ko si Mary Gay… ang tamis nghalik mo.”

        On the other hand, Gayaton narrated that, on April 5, 2002, respondent whispered to her during a retirement program, “Oy flawless, pumanaw ka met ditan” while twice pinching her upper left arm near the shoulder in a slow manner.

        A few days later, Gayaton received a text message while she was passing respondent’s car in front of the municipal hall. The message said, “Pauwi ka na ba sexy?”Gayaton later verified through respondent’s clerk, Alona Agas, that the sender of the message was respondent.

         On or about April 22 to 25, 2002, Gayaton received several messages from respondent stating: (1) “I like you”; (2) “Have a date with me”; (3) “Don’t tell to others that I told that I like you because nakakahiya”; (4) “Puso mo to pag bigay moto sakin, I would be very happy” and (5) “I slept and dreamt nice things about you.”

          Finally, as far as petitioner’s complaint was concerned, she asserted that, on November 18, 2000, during a field trip of officers and members of the St. Joseph Multi-Purpose Cooperative to the Grotto Vista Resort in Bulacan, respondent pulled her towards him and attempted to kiss her. Petitioner resisted and was able to escape the clutches of respondent to rejoin the group that they were travelling with. Respondent apologized to petitioner thrice regarding that incident.

Based on the investigation conducted by the LGU’s Committee on Decorum and Investigation (CODI), respondent was found guilty of all three charges by Municipal Mayor Marvic S. Padilla. For the offenses committed against De la Cruz and Gayaton, respondent was meted the penalties of reprimand for his first offense of light harassment and 30 days’ suspension for his first offense of less grave sexual harassment. His transgression against petitioner, however, was deemed to be grave sexual harassment for which he was dismissed from the government service. 

On appeal, the Civil Service Commission (CSC) passed only on the decision in the case filed by petitioner since, under the CSC rules, the penalty of reprimand and/or suspension of not more than 30 days cannot be appealed. The CSC dismissed the appeal but modified Mayor Padilla’s order by holding respondent guilty of grave misconduct instead of grave sexual harassment. The same penalty of dismissal from the service, however, was meted out to respondent.

Respondent’s next recourse was to the CA which partially granted his appeal. The CA modified the CSC resolution, finding respondent guilty only of simple misconduct. Accordingly, the penalty was lowered to suspension for one month and one day.

Petitioner comes to this Court to appeal the downgrading of respondent’s offense to simple misconduct. 

ISSUE: whether the acts committed by respondent against petitioner (since the CSC resolution only touched upon petitioner’s complaint) constitute simple misconduct or grave misconduct.

HELD:

Respondent was charged with knowledge of the existence of this law and its contents, more so because he was a public servant. His act of grabbing petitioner and attempting to kiss her without her consent was an unmistakable manifestation of his intention to violate laws that specifically prohibited sexual harassment in the work environment. Assuming arguendo that respondent never intended to violate RA 7877, his attempt to kiss petitioner was a flagrant disregard of a customary rule that had existed since time immemorial – that intimate physical contact between individuals must be consensual. Respondent’s defiance of custom and lack of respect for the opposite sex were more appalling because he was a married man. Respondent’s act showed a low regard for women and disrespect for petitioner’s honor and dignity.

 Section 53 of Rule IV of the Uniform Rules on Administrative Cases provides a list of the circumstances which may be considered in the determination of penalties to be imposed. The CA considered respondent’s more than ten years of government service and claim of being awarded Most Outstanding Municipal Assessor of Region II for three years as mitigating circumstances. Again, we disagree.

Furthermore, we note that this is the third time that respondent is being penalized for acts of sexual harassment. We are also alarmed by the increasing boldness in the way respondent displayed his unwelcome affection for the women of his fancy. He is a perverted predator preying on his female colleagues and subordinates. Respondent’s continued misbehavior cannot, therefore, be allowed to go unchecked.

        WHEREFORE, the petition is hereby GRANTED. Benjamin A. Sanchez, Jr. guilty.

GARCILLANO VS. HOUSE OF REPRESENTATIVES GR 170338 December 23, 2008

GARCILLANO VS. HOUSE OF REPRESENTATIVES

GR 170338 December 23, 2008

Not effective Publication of Laws

FACTS:

In 2005, tapes which allegedly contained a conversation between GMA and COMELEC Commissioner Garcillano surfaced. The said conversation contained a plan to rig the elections to favor GMA. The recordings then became subject to legislative hearings conducted separately by each House. In his privilege speech, Sen. Escudero motioned a congressional investigation jointly conducted by the Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Technology, and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, several versions of the wiretapped conversation emerged. Lacson’s motion for a senate inquiry was referred to the Committee on National Defense and Security headed by Biazon. Garci subsequently filed to petitions. One to prevent the playing of the tapes in the each house for they are alleged to be inadmissible and the other to prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation.

ISSUE: 

Whether or not publication is indispensable.

HELD: 

Yes. Garci’s petition to strike the tapes off the record cannot be granted. The tapes were already played in Congress and those tapes were already highly publicized. The issue is already overtaken by these incidents hence it has become moot and academic. The second petition must be granted however. The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that “[t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.” The requisite of publication of the rules is intended to satisfy the basic requirements of due process. Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one. What constitutes publication is set forth in Article 2 of the Civil Code, which provides that “laws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines.”

The Senate admits in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and in 2006. With respect to the present Senate of the 14^th Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session.

ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent.

ZALDY NUEZ vs. ELVIRA CRUZ-APAO

[A.M. No. CA-05-18-P.  April 12, 2005]

FACTS:

This is an administrative case for Dishonesty and Grave Misconduct against Elvira Cruz-Apao (Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15^th) Division, Court of Appeals (CA). The complaint arose out of respondent’s solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latter’s pending case in the CA, more particularly, CA-G.R. SP No. 73460 entitled “PAGCOR vs. Zaldy Nuez.”

Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case.

However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and speedy decision of his case was attainable but the person who was to draft the decision was in return asking for One Million Pesos (P1,000,000.00).

Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which respondent replied, “Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na.”  Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that the price had been set, not by her but by the person who was going to make the decision. Respondent even admonished complainant with the words “Wala tayo sa palengke iho!” when the latter bargained for a lower amount.

Complainant then asked for time to determine whether or not to pay the money in exchange for the decision. Instead, in August of 2004, he sought the assistance of Imbestigador. The crew of the TV program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion.

On 24 September 2004, complainant and respondent met for the first time in person at the 2^nd Floor of Jollibee, Times Plaza Bldg., the place where the entrapment operation was later conducted.  Patricia Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-law. During the meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the assurance that it would take about a month for the decision to come out. Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed later. When respondent was asked where the money will go, she claimed that it will go to a male researcher whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5^th) Division where complainant case was pending. She also claimed that she will not get any part of the money unless the researcher decides to give her some.

Complainant, respondent and Siringan negotiated for almost one hour. Complainant and Siringan bargained for a lower price but respondent refused to accede.  When respondent finally touched the unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to the Western Police District (WPD) Headquarters at United Nations Avenue for questioning. Respondent became hysterical as a commotion ensued inside the restaurant. She called Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latter’s house. She tearfully confessed to Atty. Gepty that “she asked for money for a case and was entrapped by police officers and the media.” Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent replied, “Wala lang ma’am, sinubukan ko lang baka makalusot.” Respondent claimed that she was ashamed of what she did and repented the same.  She also asked for Atty. Gepty’s forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at the CA were exhorted during office meetings never to commit such offenses.^[

Atty. Gepty rendered a verbal report of her conversation with their division’s chairman, Justice Martin S. Villarama.  She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 September 2004.

ISSUE:

            Whether or not text messages admitted would violate right to privacy of the accused.

HELD:

            No.  The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence which provides:

“Ephemeral electronic communication” refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained.”

Under Section 2, Rule 11 of the Rules on Electronic Evidence, “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . .” In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import.  Respondent herself admitted that the cellphone number reflected in complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case.

WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY.