Two TOYM Awardees from UPIS

It is perhaps fitting as the UP High/Elem/IS/Prep Reunion is coming up, two alumni have been named as TOYM awardees.  One is Rep. Francis Escudero who won for youth leadership while the other is Maria Corazon de Ungria for forensic science. 

 Congratulations!  You do us proud!

Justice Artemio Panganiban’s Formal Judicial Philosophy

The Justices of the Supreme Court have asked the JBC to forgo a public interview of their colleagues vying for the post of Chief Justice.  Instead, they have directed the JBC to investigate their brethren’s “judicial philosophy.”

As I said before, I have never heard a Constitutional law expert or professor even hint about a Filipino justice’s “judicial philosophy.”  Must be vaporware.

However, for the record, I would like the JBC to take a look at Justice Artemio Panganiban’s formal judicial philosophy, which is as follows: (more…)

Kudos to Tedjie Herbosa!

Tedjie Herbosa, social entrepreneur and founder of B2BPriceNow.Com, was recently awarded the TOYM award for community development (see the Inq7.net story).  Apart from being one of the oldest B2B portals, B2BPriceNow gained national prominence when it won an Infodev award from the World Bank.  He’s now in the US attending an Ashoka recognition event and later this month, he will receive a WSIS Philippines award.  Congratulations, Tedjie!   Mabuhay ka!

Scrapping the Chief Justice Interviews

Rizalist pointed out Ricky Carandang’s take on the Judicial and Bar Council’s decision not to push through with the public interviews of the candidates for the post of Chief Justice. They did this because 12 of the Justices of the Supreme Court sent a letter to the JBC expressing their objections to the interview upon the following grounds:

The justices pointed out that from the time the 1987 Constitution was adopted, the JBC never interviewed nominees who are already incumbent SC justices.

They also stressed that the Chief Justice was not the chief executive of the judiciary nor of the high court. Hence, if the JBC was interested in finding out how the nominees intended to manage or administer the judiciary, the exercise was pointless, the 12 justices said.

Instead of interviewing the nominees, they said the JBC should examine their judicial philosophy expressed in their written decisions.

As before, I can’t help but disagree with the High Court.

Ricky Carandang is right.  It’s all about transparency.  To that, I add that all of the Justices seem to be oblivious to the conflict-of-interest here.  After all, this precedent exempts all of them from being interviewed should any of them be  nominated to the position of Chief Justice.  On that ground alone, the JBC should have dismissed the letter out of hand.  After all, like the Supreme Court, the JBC is a Constitutional body.

More importantly, the JBC was created as a replacement to the open-house grilling of candidates before the Commission on Appointments.  The High Court’s move to put a veil on the proceedings leads me to believe that perhaps a return to the CA would be a better move.  In this sense, perhaps it’s good Constitutional changes are being discussed.  This should be thrown into the mix.  (more…)

Blocking VoIP Calls?

Apparently, the Israeli government has ordered ISPs to block VoIP traffic on their networks.  The government is concerned (like the Telcos here) that VoIP traffic is being used to by-pass the international gateway facility. The ISPs have responded by saying that they’re not aware their networks are being used for this purpose.

I’m not a technical guy but I think what the ISPs are saying is that they can’t stop VoIP traffic.  I once talked to a network admin in an Asean University and he said he has found no way to block the use of Skype on their network.  The reason is that Skype uses all sorts of ports in the course of one call.  So, the most they can do is monitor the fact that a Skype conversation is in progress but they can’t stop it.

I think the same is true for VoIP calls.  How can the ISP determine which packets are being used for VoIP calls?  Aren’t VoIP IP packets identical to email or WWW IP packets?  (more…)

Alternate Domain Providers Show the Way: But ICANN’s Not Listening

Companies such as New.Net and Unified Root are allowing registration of Top-Level Domains (TLDs) — those 3 or 2 letter codes at the right-most end of domain names.  Currently, the folks behind the Domain Name System (DNS) — that is, ICANN — have resisted the introduction of new TLDs for intellectual property and ostensibly technical reasons.  Either way, ICANN has opted to maintain an artificial scarcity in domain names that artificially inflates the value of those names beyond their optimal economic value (which is near zero) and has caused various groups of people to make property claims to the DNS to prevent its growth or slow down potential uses — an anticommons at the heart of the Net. 

As ICANN begins its meeting in Vancouver, maybe it should stop a minute and consider what the alternate domain providers are doing.  First,  they’re allowing the sale of TLDs which frees up the domain name space for a host of registrable names.  If the COM space can handle millions of domain names, then even a modest introduction of 200 TLDs will allow for a potential for billions of registrable domain names. (more…)

Avoiding the Anti-WireTapping Law

Some colleagues of mine at the College of Law pointed out a potential workaround to the “anti-wiretapping law” dilemma. 

Under relevant US jurisprudence on similar laws, R.A. 4200 only applies if there is a physical tap made on a wire which carries the phone conversation.  After all, this was the technology existing when the law was passed and this was the only crime contemplated by Congress. This seems consistent with the Supreme Court case which held that a telephone extension is not a device contemplated by the law and one overhearing a conversation on extension is not violating the law.

Anyway, the reasoning goes: since the “Hello Garci” tapes were made using the interception of wireless communications, then there is no violation of R.A. 4200.  No wiretap, no crime.  (more…)

CyberCrime Beats Drug Trafficking

As reported in AustralianIT, an advisor for the US Treasury Department disclosed that the global proceeds from cybercrime exceeded that of drug trafficking.  Although she didn’t say so, I’ll bet conviction rates are not comparable either — drug trafficking is more likely to land you in jail. 

This means that if you’re a parent, this is one more thing about your kid you have to worry about.

:(

New Convention on Electronic Contracting

Many thanks to Jong Navarro for pointing out that the UN General Assembly adopted a new convention on electronic contracting.  The UN press release is here and a copy of the convention is here.

I scanned through it and it’s basically a re-statement of the UNCITRAL Model Law on Electronic Commerce but with some additions and clarification on the use of electronic communications for contract formation.

For me, two things stand out in the convention.  (more…)

Constitutional Attack on the Anti-Wiretapping Law

Now that Mr. Garcillano has resurfaced, we are once again faced with the “anti-wiretapping law” problem. On the one hand,  the tapes are needed to uncover the truth about the 2004 Presidential elections and any improper intervention in the same by Mr. Garcillano.  On the other hand, his counsel has said in no uncertain terms that even references to the tape would be improper given that the tapes themselves arose from the commission of a criminal act.

Given the exceptional circumstances, I think it would be proper for the Supreme Court to declare that the application of the Anti-Wiretapping Law to this case would be unconstitutional.  Those exceptional circumstances relate to the Constitutional values that are at stake — the sanctity of the ballot, the right to suffrage, the inherent right of the people to determine their fate through elections and, I believe, the very integrity of our Constitutional system.  The Court must not sit idly by while these fundamental issues are kept from discussion and debate simply on the ground that Mr. Garcillano is entitled to privacy (as implemented by the Anti-Wiretapping Law).  Certainly, Congress could not have contemplated protecting the privacy of government officials who appear to have conspired to undermine basic Constitutional processes — election, investigation, and the search for the truth.  After all, justice is meaningless without truth. (more…)

VoIP Guidelines

The VoIP guidelines are out.  Get a copy here. 

I must say that I’m disappointed at the capitalization requirements put up by NTC.  Internet service providers were not subjected to minimum capitalization requirements of P10 Million.  In fact, today I can set up an ISP with little capital and the NTC will let me.  What’s so special about VoIP services that the NTC is so concerned about “fly-by-night” operators while they’re not nearly as concerned about Internet users?

At any rate, I need to look at these rules in the context of the earlier regulations to see how VoIP providers can get up and running.  Some of the remaining major issues are:

1. How will the NTC intervene in situations where the Telcos refuse to interconnect or offer services to VoIP providers?
2. Will the NTC regulate the service charges of Telcos to VoIP providers to avoid preferential treatment?
3. Will the NTC prevent the Telcos from giving their in-house VoIP business preferential business terms as compared to third-party VoIP providers?

I’ll be mulling these things over the next few days. I’d be happy to hear from you as well.

The Scene: A Show on P2P

Work is a major reason why my posts have been inconsistent.  The other major reason is “The Scene” a made-for-Internet show that’s been running for over a year.  Shows are distributed exclusively on P2P networks.  The story revolves around a group that uploads pirated movies into P2P networks.  Tthe story is fictiona but the premise is not.  Wired reports that a substantial amount of pirated material ends up on P2P networks care of topsites and 30 or so groups that pump the system with TV shows, movies and software.  Despite the so-called “flat” nature of P2P networks, the piracy structure looks exactly like that in the real-world — a virtual pyramid with a handful of suppliers for millions of consumers.

Anyway, check out The Scene.  The next episode is due within a few weeks.  ‘Till then.

A Legal Discussion and Google

Many of the conversations I have with my father are about legal issues.  He takes a position — usually provocative one — and eggs me on to disagree.  I invariably fall for the bait.  We argue, raise our voices, make relevant (but maybe erroneous) citations of law and jurisprudence, invent non-existent scientific data or studies, bluf and oftentimes, agree to disagree.  Believe me, it may sound unpleasant but neither of us leaves with hard feelings.  Discussions of law are never personal, it’s one way to waste time.

Today was slightly different because we happened to talk when I was on-line.  He said Dr. Fortun, a forensic expert, said that it is only in the Philippines where paraffin tests are admissible and that since the ’60’s these had been discredited in the US. 

I didn’t disagree.  Instead of offering a truly uneducated, equally provocative and contrary opinion, I Google’d.  And surprisingly I hit pay dirt. 

In the case of People v. Cajucom, our Supreme Court (citing earlier cases), reiterated their holding that paraffin tests are inconclusive as evidence.  The Court, through Justice Ynares-Santiago, said: (more…)

Corporations and Moral Damages

One of the things that sticks to a lawyer’s mind about damages is that a corporation is not entitled to moral damages.  Moral damages are a form of compensation decreed by a court in instances where the defendant suffers:

physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury

Corporations don’t experience any of the above — when was the last time a corporation suffered wounded feelings or experience physical suffering?  In one case, though, the Supreme Court recognized that Corporations can be entitled to moral damages if their financial reputation had been harmed.

Well, now the Supreme Court has added another instance where corporations can collect moral damages — in libel cases.  In Filipinas Broadcasting Network, Inc. v. Ago Medical and Educational Center-Bicol Christian College ofMedicine, the Court held that in all cases of libel, corporations can be awarded moral damages.  The Court, through Justice Antonio Carpio (who, as a law student, authored a good law journal article on intentional torts), said: (more…)

Having Problems with your Digital Camera?

A few weeks ago, our digital camera died on us.  Actually everything works except it can’t take pictures.  All I get are pure black images and the occasional streaks.  I was all set to throw it out until I saw this article which talks about expected digital camera failures for most brands if the unit was manufactured between 2000 and 2004.

If you’re having similar problems, go have your camera checked out by an authorized service center. Most manufacturers have issued their own notices.   In our case, Canon will be making the repairs for free.  Looks like I dodged a P20K bullet.  At least for now.

Footnote-picking in the Spouse-Picking Case

I am, by far, not the first lawyer ever to say I have disagreed with a number of Supreme Court decisions.  Even law students have a list of their favorites.  One case that’s on my top ten is  Duncan Association of Detailman v. Glaxo where the Supreme Court said, in effect, that your employer has a legitimate right to regulate your choice of spouse as part of its goal in protecting its commercial interests.  In that case, the Court upheld the validity of a company policy prohibiting employees from marrying persons employed by a competitor. 

I don’t know about you, but I think the choice of spouse is an intimately private decision and one which the State (much less a private company) is not entitled to interfere with.   Who I marry is part and parcel of my pursuit of happiness and an inherent right.  After all, what is liberty worth if the State can regulate or tolerate the regulation of such intimate life choices? 

Going back to the case. I read it again today and I noticed that the Court used a US case to support its decision.  This isn’t unusual.  Despite the Court’s own assertion that the “umbilical cord” between Philippine and US jurisprudence has been cut, many of its decisions rely heavily on American case law.  Well, here’s what the Court said:

As held in a Georgia, U.S.A case,[22] it is a legitimate business practice to guard business confidentiality and protect a competitive position by even-handedly disqualifying from jobs male and female applicants or employees who are married to a competitor. Consequently, the court ruled than an employer that discharged an employee who was married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964.[23] The Court pointed out that the policy was applied to men and women equally, and noted that the employer’s business was highly competitive and that gaining inside information would constitute a competitive advantage.

The case referred to in Footnote 22 is:

Emory v. Georgia Hospital Service Association (1971), DC Ga., 4 CCH EPD ¶ 7785, 4 BNA FEP Cas 891, affd (CA5) 446 F2d 897, 4 CCH EPD ¶ 7786; Cited 45 Am Jr 2d Sec. 469.

(The entire case is quoted at the end of this post) (more…)

Post Bar-tum Depression and Anxiety

Whether they admit it or not, all lawyers have gone through it - a mixture of dread, panic, depression, anxiety, fear, regret and self-loathing that lasts the moment they hand in their last Bar bluebook until the results come out.  After all, the bar determines whether the past 4 or 5 (and for some, even more) years have been in vain.  Among ourselves, we share stories of people who broke down, zoned out and gone crazy with the stress.  And then there are those who seemed not to suffer, or learned how to suffer in silence, or worse, become insufferable for their over-confidence. 

One of our graduates currently on this vigil describes it like this:

i think the bar scarred me for life and i can only get over it once i’m sure i passed. til then, i’ll continue begging for a miracle. if you’ve read harry potter, the bar was like a dementor that sucked my happy thoughts…it left me empty and always in fear. graduates like me who had just taken the bar are of lowest in rank in the law world… we’re neither here nor there. we need to take everything — including the stinkiest crap — to muster enough good karma to get at least 75%. needless to say, we are at the mercy of the fates. hahaha! drama ba?

(more…)

HLSAAP November Fellowship Cocktails

The Harvard Law School Alumni Association of the Philippines is inviting all HLS alumni (SJD, LLM, ITP, PIL, etc.) to attend its November Fellowship Cocktails which will be held at the SGV Executive Lounge, SGV Building, Ayala Avenue, on November 30, 2005 at 5:00 p.m.  (RSVP  Leila – 849-2357 / 848-0114).

Our special guest speaker is the OIC Commissioner of the Bureau of Internal Revenue, Jose Mario C. Buñag, who will discuss, among others, the new eVAT regulations.

Many thanks to our sponsor, Sycip Gorres & Velayo (Ernst & Young).

Memorial Service for Jackie Fernandez-Suntay

I met Jackie Fernandez-Suntay a few years ago when I went for my LLM.  Among the Pinoy students in the Boston area, she and her husband Bobbit were one of the “old-timers.”  They’d been in Harvard for about 3 or 4 years when I met them.  Jackie had completed fellowships at Harvard’s MassGen Hospital and Bobbit was pursuing his PhD in education at the EdSchool. I understand it was during this time that Jackie was diagnosed with cancer.  Although the prognosis was bleak, Jackie fought bravely and with arguably the best medical care in the world and her own determination, she outlived her doctors’ expectations.  In early October, she passed away in the company of her husband and family.

There will be a memorial service for Jackie on Saturday, 12 November 2005, at the residence of Mrs. Dely Panlilio Fernandez: 12 Pili Avenue, South Forbes, Makati. Mass will be at 5:00 PM, followed by the light refreshments.

In lieu of flowers, Bobbit requests that we donate to the cancer wellness foundation that Jackie and Bobbit started when they learned that she and her dad had cancer. Checks may be made out to: The Carewell Community Foundation. They accept donations in dollars or pesos. For more info, go here: www.carewellcommunity.org.

China and Western Pop Culture

Proof positive that American pop culture thrives even in Communist China.  Enjoy!