Critique on the Thesis of John Paul Narag
Arguments of the Proponent:
The Thesis will attempt to discuss the importance of the exemption in relation to the
selection of its officers and personnel. The proponent will then tackle the
constitutionality of Title VI Section 16 of PD 1869 vis-à-vis Article IX (B) Section 2 of
the 1987 Constitution.
Therefore, it tackles the constitutionality of the provision of PD 1869, and how it
will go against the Civil Service Law.
Comments:
1. There is confusion as to what the proponent really wants to do. There are some
parts of the thesis where it takes on the issue of constitutionality, as between Article
IX (B) Section of 2 of the 1987 Constitution, and Title VI Section 16 of PD 1869.
However, it also discussed the conflicting issues of the Civil Service Law and PD
1869.
The following are copied from the mandate of the CSC stated in the CSC website:
The Civil Service Commission was conferred the status of a department by Republic
Act No. 2260 as amended and elevated to a constitutional body by the 1973
Constitution. It was reorganized under PD No. 181 dated September 24, 1972, and
again reorganized under Executive Order no. 181 dated November 21, 1986. With
the new Administrative Code of 1987 (EO 292), the Commission is constitutionally
mandated to promote morale, efficiency, integrity, responsiveness, progressiveness,
and courtesy in the Civil Service.1
Although there is part in the thesis, found under Part II (b) of the outline the Civil
Service Law / Article IX of the 1987 Constitution, it is quite unclear how there would
be unconstitutionality if the basis of the conflict is found between two laws. There
must be an express statement of how the question of constitutionality would arise
out of such law, and significance of the law being incorporated in the Constitution.
A sub-issue may be going through the concept of relative constitutionality. This was
an issue raised in the case Central Bank Employees v Bangko Sentral ng Pilipinas2,
wherein it discussed the provision of a law which was at first valid, however became
invalid through the passage of time. It is somehow related to the issue at hand, since
PD 1869 Title VI may be considered as constitutional during the time it was
promulgated, but through the passage of time, and due to supervening events, such
1
2
www.csc.gov.ph
G.R. No. 148208, December 15, 2004
as the incorporation of the Civil Service Law in the constitution, it became
unconstitutional.
2. The totality of the issue should be seen in Part VI of the outline, entitled
Examination and Critique of the PAGCOR Charter vis-à-vis Article IX (B) Section 2 of
the 1987 Constitution and the latter portion are either not as important that may be
removed already, or may be used before such topic and further expound on the
juxtaposing the law and the constitution. The topic should already be complete, and
discuss completely how the two should be resolved as against each other.
Critique on the Thesis of Leonard Escueta
Arguments of the Proponent:
A legal conflict exists between the power of the government to tax its subjects
earning purely compensation income in a manner other than through the
withholding tax system versus the immunity of the Organizations from government
compulsion to provide necessary information other than the actual withholding of
taxes for proper imposition of tax on Filipino employees working therein.
There, this paper recommends an amendatory provision or a supplemental
agreement that will give the BIR, as the official government instrumentality, free
access to the employment records including the respective income and other
information pertaining only to the Filipino employees.
Argument:
In my opinion, the thesis is very one-sided to the possible issues that it may
encounter.
First, the thesis makes too many presumptions about the application of the study
with the organizations. It cited Asian Development Bank as one of the organization
that is exempted from withholding the taxes of its employees, then the proponent
made an assumption that the employees were not making a truthful return for their
income taxes. It did not cite a legal basis as to show that most foreign corporations
that are exempted from withholding taxes have employees that do not make a valid
return. The basis may have been an opinion, or a case to show such act, which is
needed for it to show the importance of the creating the study.
Another presumption made was the agreement being accepted by such
organizations exempted from making withholding taxes. The proponent stated that
the employees may not accept the proposal, but the cooperation by these
organizations will result in mutual benefit of both party. That being said, the
proponent failed to state the possible scenarios of the agreement between parties. It
failed to state how the government might be able to compel the organization to
agree. It also failed to state what are the possible benefits the organization might get
from acceptance of such agreement.
Second, the thesis failed to tackle the most obvious obstacle of the study, which is
the Bill of Rights. Art III sec 2 of the 1987 Constitution states the following:
“The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be
seized.3
Every person, whether natural or juridical, is protected by the Bill of Rights against
the powers of the state. The study shows that the government will have access to the
books and accounts of every organization exempted from withholding. However, it
must be remember that the organization may be holding valuable information that
they may not divulge to the government. It is expected that most organizations, if
not every organization will reject the proposal to check their books and accounts.
Compelling then would be subject to the Bill of Rights, which indicates that the
proponents must be able to overcome such obstacle before being to continue the
study. Although under part I of the recommendation, it states that it will only be
limited to the information of Filipino employees, such agreement will be under the
scrutiny of government officials checking the accounts or under the reliability of
information to be shown by the organization. I think there must be a full explanation
on how to go about with the inspection, with every minute detail included.
Lastly, upon finding that there really was a failure of the employees to file the
correct tax return, they should be subjected to a penal sanction stated under the
NIRC. However, the proponent mentioned that there should be a tax amnesty
available to the employees. However, such agreement is deemed to be a compromise
agreement between the government and the organization that the employees will
not be subject to a penal sanction even upon finding guilt of giving false returns. The
following provision of the NIRC is related to the issue at hand:
SEC. 255. Failure to File Return, Supply Correct and Accurate Information, Pay Tax
Withhold and Remit Tax and Refund Excess Taxes Withheld on Compensation. - Any
person required under this Code or by rules and regulations promulgated
thereunder to pay any tax make a return, keep any record, or supply correct the
accurate information, who willfully fails to pay such tax, make such return, keep
such record, or supply correct and accurate information, or withhold or remit taxes
withheld, or refund excess taxes withheld on compensation, at the time or times
required by law or rules and regulations shall, in addition to other penalties
provided by law, upon conviction thereof, be punished by a fine of not less than Ten
thousand pesos (P10,000) and suffer imprisonment of not less than one (1) year but
not more than ten (10) years.
Any person who attempts to make it appear for any reason that he or another has in
fact filed a return or statement, or actually files a return or statement and
subsequently withdraws the same return or statement after securing the official
receiving seal or stamp of receipt of internal revenue office wherein the same was
actually filed shall, upon conviction therefor, be punished by a fine of not less than
Ten thousand pesos (P10,000) but not more than Twenty thousand pesos (P20,000)
and suffer imprisonment of not less than one (1) year but not more than three (3)
years. 4
3
4
1987 Consitution
National Internal Revenue Code, Section 255
If in example, the ADB employees were found to be filing an incorrect return, there
is a possible prejudice to those who was recently caught to file a fake return. Then
there will be a violation of Article 1 of the 1987 Constitution, which states: “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.” The proponent should
be able to balance the agreement and the law, and other parties not included with
the agreement that are also affected by it.
Critique on the Thesis of Lorenzo Martinez
Argument of the Proponent:
This paper will compare and contrast the bail bond business in both nations. It will
break down the reasons why the United States has refused to treat bounty hunters
as state actors and all its implications. Finally, it will consider whether those reasons
apply in the Philippines, and will attempt to properly characterize the business of
bounty hunting as an extension of the state's police power.
Therefore, bounty hunters should be considered as state agents.
Comments:
1. There must first be a proper showing by the proponent that the bondsmen
themselves are considered to be state agents before proving that the bounty hunters
are also considered state agents.
The proponent cited the following:
Sec. 21. Forfeiture of bail. – When the presence of the accused is required by the
court or these Rules, his bondsmen shall be notified to produce him before the court
on a given date and time. If the accused fails to appear in person as required, his bail
shall be declared forfeited and the bondsmen given thirty (30) days within which to
produce their principal and to show why no judgment should be rendered against
them for the amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-production;
and
(b) explain why the accused did not appear before the court when first required to
do so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen,
jointly and severally, for the amount of the bail. The court shall not reduce or
otherwise mitigate the liability of the bondsmen, unless the accused has been
surrendered or is acquitted. 5
The provision gives the court the power to order the bondsmen either to produce
the body of the principal or reason for non-production, or explain the reason of the
failure of the accused to appear before the court. Failure to comply will render the
amount of the bail forfeited in favor of the government. It is therefore the bondsmen
that has the duty to produce the body of their principals, and not the government. It
also the bondsmen who contract the services of the bounty hunters to catch the
accused. The only similarity that comes into mind is the arrest of the accused,
between a bounty hunter whose service was procured by the bondsmen, and a
police officer that has the duty to maintain the peace and prevent crime from
occurring. There is however a missing link between the bounty hunter, who are
agents of the bondsmen, and the government.
5
Rules of Court, Rule 114 Section 21
It is to be remembered that the Bill of Rights are made to ensure the protection of
regular citizens against the act of the State. It does not include the protection of the
acts of a private citizen even if such act was a particular order from the court. To
first say that the bounty hunters are state agents, it is important to show that the
bondsmen are also state agents. Then, the reasonable connection that an agent of
agent is also an agent of the principal may be applied under the rules of agency6.
2. The proponent likewise failed to state any provision or jurisprudence on the
validity of bounty hunters. It may be contended that private persons may not be
subjected to the constitutional rights of a person. However, violation of such rights
may still be civilly liable under Art 32 of the Civil Code:
Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of
the following rights and liberties of another person shall be liable to the latter for
damages:
X
X
X
(9) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
X
X
X
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
As provided by the proponent, there is clearly a violation of the rights of the accused
upon the following acts of the bounty hunter. Their acceptance as valid
apprehenders of people who runs from bail is against public policy and public
morals.7
6
7
Civil Code
Civil Code, Article 11
Critique on the Thesis of Marice Pacheco
Argument of the proponent:
Providing for adequate standards to the Insurance Commission for adjudication of
insurance claims and expanding its jurisdiction by removing the ceiling amount of
the claim or complaint and instead basing it on the nature of such claim will
expedite the procedures and would prevent cases from clogging up the courts.
Comments:
1. There might actually be no controversy to the topic at hand and may be
considered as a policy issue. There is actually no problem with the judicial system of
the courts, and moving insurance cases before the Insurance Commission will not
really fix the delay with the movements of cases in the Philippines.
2. In arguendo that there is a legal issue, there must first be a valid distinction
between the creation of the Insurance Commission and other quasi-judicial agencies.
It is important to raise the reasons behind the creation of the Insurance Commission,
and how it greatly affects the country now, as compared to its year of creation. As
stated in the Sec 415 and 416 of the Insurance Code cited by the proponent, it is
obvious that the main purpose of the Insurance Commission is its administrative
works, and that its adjudicative powers is only secondary is put into a minimal, thus
the reason of the ceiling.8 The proponent must more valid reasons for removing the
ceiling, such as greater interest in insurance cases, or the increase of insurance
policies in the country. De-clogging the courts should be at most, a secondary effect
of such removal of the ceiling.
At most, there should be a recommendation of expanding the overall powers of the
Insurance Commission, and not just its adjudicatory powers. If it is stated by the
proponent that the law is outdated, there must be a showing of a proposal for the
amendments and overall change in the law.
8
Insurance Code