Morale in Career Civil Service

How important is morale of career service in the civil service?

Merriam Webster defined morale as “the mental and emotional condition (as of enthusiasm, confidence, or loyalty) of an individual or group with regard to the function or tasks at hand”. In other groups, this is termed as “esprit de corps”.  As it applies to civil service, let us look and define the two basic approach – the traditional and the modern approach.

Traditional approach is based on familiarity and group cohesiveness. Morale is inherent the moment you entered the group. This approach, although more binding than the modern approach, lacks interaction to and from the outside. An example of this is military service. Morale is interchangeably used with esprit de corps as applied to their batch mates. Each treats the other belonging to the same class as an integral part of the group. Though it operates on the chain of command, the ties that batch mates made with each other is the strongest among the group.

Modern approach is based on the fact of merit and fitness. One being created is a group with the same line of thinking and with the same or equivalent capabilities. This is more visible in the corporate world. It doesn’t matter if you were years in service or you just came in, for as long as you can handle the kind of job assigned to you. You earn your own title. You will join the group because your personality and capabilities dictates so. There is equal chance for everyone to go up as fast as you can, for as long as you can. This creates a different kind of bond among several groups.

Let us have for an example an office in the government. It’s department head position is vacant. There is an assistant or equivalent next in rank from the department that is qualified to assume the position of head. Then suddenly one from the outside came in, and subsequently appointed as the head of the department. What kind of approach is applicable? You may say it is a modern approach. At the beginning, it might be correct. But to qualify, it must be acceptable to the group which one now belongs – the group of department heads. Is the appointment acceptable to them? If the answer will be “No”, there’s now a problem. It will be very certain that the department itself cannot easily absorb the kind of demoralization it had when someone from the outside just rule them. But if it gained respect and acceptance from the department heads themselves (other departments), then it will be a matter of time before such scar will heal.

As first defined, the modern approach is more fit to apply with the corporate world where you can impose practically any rule even without knowing most of the agency rules. This may not hold true in the government service. There are a lot of laws, rules and regulations, conduct and ethical standards that must be observed. If those from the outside were never been to career (government) service, it will be very hard to see how they could fit in the system. You will find them making their own rules. You will find them crawling in the dark on what particular rule will apply. You will find them usually isolated from their departments, and worse from the department heads as well. Not good for the agency. This would be an approach of the third kind that we will call the “destructive approach”.

It is chaotic for a private individual who just came in and rule a department of a government. Needless to say, it will of course be valid since appointment is a political question. But the effectiveness of such approach will be based on the acceptance of any one group from the ranks or from the heads. Partial acceptance is partial success.  Imagine one head taking the department as a private enterprise where one can impose rules contrary or inconsistent with government standards? Or by applying some rules without knowing of other rules that should be taken in pari materia with the others? Was there enough justice for subordinates who may have known it better?

True there may be a lot of incompetent individuals out there waiting for promotions and will neither lead the department into the highest standard of excellence in public service. But you don’t just pick someone from the outside to cure the problem. You don’t send a deer to rule lions, or a chicken to lead the crocodiles, or a clown fish to dominate barracudas. You only send a human being, man enough to know the group but animal-like to mingle with. You will later find out that morale is something from within and not that one dictated. Although each of their kinds could have possibly ruled, lead or dominated theirs, an outsider with heart and passion of a leader without the sword and spears of tyranny is a sufficient substitute.

Civil service is not military nor trade. It is also not a playground. It is a serious organization the people vested not power, but the privilege to serve.

 

Position Paper: “Why I Teach Law” by Fr. R.C. Aquino

I take the negative position (choosing the Bar over graduate studies of law). However, this does not mean that I oppose to the position of Fr. Aquino nor subscribe to his critic as mentioned in the article. For me, it is just a matter of priority.

I have the chance to understand the two different views from my own personal experience. I have passion for both science and mathematics. When I was young, I wanted to be a scientist. When I came to understand the practicalities of life, I have to defer that dream of “pure” science for some “applied” profession in order to survive in the society. I chose to be an engineer. While I love every aspect of quantum physics and the theory of relativity, I had to settle for classical physics and engineering mechanics. I actually never had the opportunity to choose. If only I was given a bountiful life where I can depart from “matching type” of career selection (rather than multiple choice or fill in the blanks), I will choose to be a purist, and dedicate my life for academic excellence and service to mankind.

Between a Master or even a Doctor of Laws and a Member of the Bar, again, I would have to yield to the latter. Not that I undermine the kind of academic superiority of the former, but because of futility in losing an opportunity to live practically and compensate materially. Similarly, there is less than promising future for my family should I choose to be a scientist as compared to the versatility and marketability of an engineer. Unlike in first world countries, we do not have sufficient support for these kinds of people in research and advancement. Should I choose in the future to pursue graduate studies (of law), I will have to devote more time in studying (and spending) than earning for my kids. But if I had all the time and resources to raise my family well, I would have chosen to be an academician and discuss law the same way as Fr. Aquino did. Otherwise, it would practically be like living in isolation (from my own family). I can’t. It just ceased to be my priority.

Oftentimes I was deprived acceptance of my opinions regarding some matters of law from which I devoted time, effort and extensive research which I believe others, not even lawyers, have done on certain special laws. It is just not fair. Just because they are lawyers and I am not one does it automatically follow that I am not competent to discuss a law or any of its provision? I can only validly agree with Fr. Aquino’s last statement that the prefix of “Atty.” before his name is immaterial in teaching law. But in my case, who needs an additional title when I already have one – “Engr.”? For me, the title of “Atty.” would just be incidental. It will still be substance of a person over his title.

 

What Valentines Day Would Mean to Lawyers?

I am not a lawyer – certainly not yet. But just wondering and just thinking, how do lawyers celebrate this day? I may have some idea springing from my experience as a law student.

Suppose there is a class today in one major subject, like Remedial Law, Political Law, etc. which the professor calls the “big day” or a “make or break” recitation to make up in your class standing. The professor is well known for giving bad grades for recitation when someone is called and absent. You know for a fact that he calls everyone  in at least one round per meeting. You have been terribly making unsatisfactory answers in the last three meetings. You flunked the midterm exams. You need some grades to catch up. But it is also Valentines Day. You need make up with your girlfriend because you have not yet seen each other at least personally since the midterm exams. You feel that she is in the verge of give you up. You love her so much that it’s like waiting for a lifetime just to be with her. What would you do? Would you choose to study for the big-day?

Terrible, isn’t it? Just kinda thinking of a parallel scenario with lawyers.

There are court hearings today. You have at three clients set for hearing the whole day and three clients set to meet after dark. The cases were all critical. The clients were all prominent figures who might give you the break you need. But you also wanted to make up for your wife and treat her for this special day. You kids will be home early because it is exams week for them and they are dismissed early. What would be your choice?

Things like that are what we call “flavors of life”. People are so attached to so many things. They forgot the most fundamental of all – life. Will the kind of decision we make give us life? Yes. And it does matter a lot. Choosing between “live to work” or “work to live” is irrelevant. You still had to choose from living and working. Living is not actually a choice, as well as dying. We may choose how we live or die, but it is not for us if we live and definitely not for us to defer death.

To a (soon to be) lawyer, Valentines Day is an ordinary day for extra-ordinary persons. The critical choice one has to make is “who would that “extra-ordinary or special person” he would want to be with? Some may say “celebrate later”, or “it’s just for teens or youth”. Why? Have lawyers surrendered their youth and enthusiasm?

For me, I will have to spend my time, no matter how slim and narrow, with my wife and family. As most law student and lawyers know, the Family Code emphasizes the permanent nature of marriage hailing it as the foundation of the family. It is this inviolability which is central to our traditional and religious concepts of morality and provides the very bedrock on which our society finds stability.Marriage is immutable and when both spouses give their consent to enter it, their consent becomes irrevocable, unchanged even by their independent wills. (Melcampo-Sin vs. Sin, G.R. No. 137590, March 26, 2001). The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. (Constitution, Article XV, Sections 1 and 2). So the choice should have been simple had we gone through the basics.

Lawyers should not choose between law and love. They are one and the same. But should they be different according to the circumstance, one should choose love. You can never go wrong.

And now these three remain: faith, hope and love. But the greatest of these is love. (I Corinthians 13:13)

 

Adultery in Flagrante Delicto

Lighting did struck twice on me on the same spot – unbelievable! It was a case of adultery in flagrante delicto asked with twists in our Criminal Law subject.

First instance: The topic was about mitigating circumstances. I was called for recitation. The professor was discussing certain instances where incomplete (self) defense will not justify or exempt a person from criminal liability. Instead, a person will be liable but will be entitled of reduction of penalty. I have correctly answered all the questions except for the last one.

Professor: X saw his wife on bed having sex with another man. X was so blinded with hate that he killed his wife and paramour. Can X claim of the mitigating circumstance of “passion and obfuscation”?

Me: Yes.

My reason for answering “Yes” was influenced by previous discussions that there is no reasonable necessity to kill the persons. X is liable but may avail of the mitigating circumstance.

Professor: The correct answer is “No”. It was a case of adultery in flagrante delicto. The killing of wife and paramour is justified, as taken against his honor.

Second instance: The topics discussed are parricide, homicide and murder. It was settled that parricide is a special name for homicide committed against ascendants and descendants including the spouse. It was not me on deck for recitation but the discussion is interesting. The question is practically a rephrase.

Professor: Under Article 247 of the Revised Penal Code, the penalty for exceptional circumstance is Destierro. What do you think is the modifying circumstance (if any) why the penalty is Destierro instead of Reclusion Temporal or higher penalty?

Student 1: Mitigating circumstance sir, passion or obfuscation.

Professor: Any other?

Student 2: Justifying circumstance sir, defense of honor.

Professor: Are you sure? Do you think the act is justified?

Me: Yes sir, the act falls under justifying circumstances.

Professor: It is not justifying, because it lacks one element: reasonable necessity of the killing.

I was “dead” within a few seconds after hearing that. I can’t believe my senses. I cannot possibly commit the same mistake with the same question. I confirmed with the Professor after class if indeed killing in flagrante delicto of wife and paramour is really NOT justifying? The Professor confirmed, it was NOT justifying.

Now I have to seek the wisdom of SC decisions to build up my foundations shattered by the flip-flopping answer.   In People vs. Wagas (G.R. No. 61704, March 8, 1989), the Court said:

The vindication of a Man’s honor is justified because of the scandal an unfaithful wife creates; the law is strict on this, authorizing as it does, a man to chastise her, even with death. But killing the errant spouse as a purification is so severe as that it can only be justified when the unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so much so that the law requires that it be inflicted only during the sexual intercourse or immediately thereafter. (emphasis and underscoring supplied)

 Let us look on Article 247 of the Revised Penal Code:

Article 247.Death or physical injuries inflicted under exceptional circumstances. – Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

Technically, destierro as a penalty under the above article is actually not a penalty for a distinct crime. In People vs Araquel (G.R. No. L-12629, December 9, 1959):

As may readily be seen from its provision and its place in the Code, the above-quoted article, far from defining a felony, merely, provides or grants a privilege or benefit–amounting practically to an exemption from an adequate punishment – to a legally marries person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused – who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be – is punished only with destierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. x x x (emphasis supplied)

It must be noted however, for the killing to be justified must be a result of the impulse during the sexual act or immediate thereafter, and that no other external factors like revenge, resentment or other evil motive.

One possible reconciliation I can agree with is that the act is not a defense of person (justifying circumstance) but an absolutory cause. Such are defenses which have the same effects as the exempting circumstances but they are not among those enumerated in Article 12. They are found in certain Articles of the Revised Penal Code or are developed by jurisprudence. (www.batasnatin.com)

1. They are based on public policy
2. Examples of those in the RPC include: non-liability for an attempted felony due to voluntary desistance; Death/Physical Injuries Under Exceptional Circumstances
3. Those recognized and developed by jurisprudence include: mistake of fact, set-up/frame up, instigation

There is no conclusion yet. So now, we go back to Criminal Law question:

You choose your best answer. 🙂

 

Understanding Crimes Involving Moral Turpitude

One of the requirement before one can be admitted to practice of law is a satisfactory evidence of good moral character and not having been filed any charge against him involving moral turpitude in any Philippine Court (Section 2, Rule 138, Rules of Court). But what precisely, if not exactly is moral turpitude?

One of the Supreme Court jurisprudence that I recommend is the concurring opinion of Associate Justice Arturo Brion in the case of  Teves vs. COMELEC (G.R. No. 180363. April 28, 2009). There, Justice Brion discussed a brief (legislative) history of the term. Its roots can be traced from US immigration laws as early as 17th century. Since then, there was a gradual qualification of felony, offenses and crimes to be associated with “moral turpitude”, and fraudulent conduct was a controlling factor in associating it.

In the early editions of Black’s Law Dictionary, it defines moral turpitude as:

[An] act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. xxx  Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others. xxx The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.

In a case which involved a lawyer (In Re Basa, 1920) having committed abduction with consent, the Supreme Court (of the Philippines) through Justice Malcolm have spoken:

“Moral turpitude,” it has been said, “includes everything which is done contrary to justice, honesty, modesty, or good morals.” (Bouvier’s Law Dictionary, cited by numerous courts.) Although no decision can be found which has decided the exact question, it cannot admit of doubt that crimes of this character involve moral turpitude. The inherent nature of the act is such that it is against good morals and the accepted rule of right conduct.

Since then, some of the identified crimes involving moral turpitude were identified as follows:

1. Abduction with consent
2. Seduction under promise of marriage
3. Bigamy
4. Concubinage
5. Adultery
6. Smuggling
7. Rape
8. Estafa through falsification of a document
9. Attempted Bribery
10. Profiteering
11. Robbery
12. Murder, whether consummated or attempted
13. Estafa
14. Theft
15. Blackmail
16. Illicit Sexual Relations with a Fellow Worker
17. Violation of BP Blg. 22
18. Falsification of Document
19. Mutilation of public records
20. Fabrication of evidence
21. Making fraudulent proof of loss on insurance contract
22. Offenses against pension laws
23. Evasion of income tax
24. Intriguing against Honor
25. Violation of the Anti-Fencing Law
26. Violation of Dangerous Drugs Act of 1972 (Drug-pushing)
27. Criminal conspiracy to smuggle opium
28. Perjury
29. Forgery
30. Libel
31. Direct Bribery
32. Frustrated Homicide
33. Arson
34. Barratry
35. Dueling
36. Embezzlement

 On the other hand, the following crimes were ruled out not to be involving moral turpitude:

1. Minor transgressions of the law (i.e., conviction for speeding)
2. Illegal recruitment
3. Slight physical injuries
4. Carrying of deadly weapon (Illegal possession of firearms)
5. Indirect Contempt

There were three (3) approaches to determine if the any crime, not previously identified, may be considered as crime involving moral turpitude:

First approach: (objective approach) involvement of moral turpitude where an act is intrinsically immoral, regardless of whether it is punishable by law or not. The Court emphasized that moral turpitude goes beyond being merely mala prohibita; the act itself must be inherently immoral.  Thus, this approach requires that the committed act itself be examined, divorced from its characterization as a crime.

Second approach: look at the act committed through its elements as a crime.  The Court recognized that as a “general rule, all crimes of which fraud is an element are looked on as involving moral turpitude.”  This is the same conclusion that the U.S. Supreme Court, that crimes requiring fraud or intent to defraud always involve moral turpitude.

Third approach: (subjective approach) essentially takes the offender and his acts into account in light of the attendant circumstances of the crime: was he motivated by ill will indicating depravity?

For the three approaches, the defining question is: Is it contrary to the accepted rules of right and duty, justice, honesty and good morals? To be able to be cleared and ruled out of the definition of “moral turpitude”, all three must be answered in the negative.

BTW, in the cited case, the SC ruled:

WHEREFORE, the petition is GRANTED. The assailed Resolutions of the Commission on Elections dated May 11, 2007 and October 9, 2007 disqualifying petitioner Edgar Y. Teves from running for the position of Representative of the 3rd District of Negros Oriental, are REVERSED and SET ASIDE and a new one is entered declaring that the crime committed by petitioner (violation of Section 3(h) of R.A. 3019) did not involve moral turpitude.

 

A Day With An Alternative Answer

displacement of continuum

It was after the answer key for the midterm exams was released I realized that I got a wrong answer in one of the questions in Constitutional Law 1, which I strongly believe has its own twist. The professor gave us three (3) days to submit an alternative answer, or answers different from the suggested answer in the answer key, which we think is equally correct for his consideration.

In the answer key, was this:

9. Mando Rugas was a government contractor who repaired the comfort rooms in the Municipal Hall of municipality “A”. After he finished the work, the Municipality, headed by Mayor Manda Raya, refused to pay him. What should Mando Rugas do?

a. He should sue Mayor Manda Raya to compel the said mayor to pay for the works performed.

b. He should just accept his fate because no one can sue the state

c. He should sue the Municipal Council to compel them to allocate the funds necessary to pay him for the works

d. None of the above.

(See Nessia v Fermin)

What I can remember from Nessia v Fermin is that there are actually no appropriated funds for the claim of the petitioner. Because of that, I chose “a” to be more proper. I’d like to share my arguments:

The suggested answer based on given facts in the exam is NOT on all fours with the case of Nessia vs. Fermin (G.R. No. 102918. March 30, 1993.) 

1. The former is about payment of works by a government contractor, the latter is about travelling expenses of a government employee.
2. The former necessarily involves procurement (of works) the funding of which is more likely under “maintenance and other operating expense” of fund while the latter falls under funding category of “personal services”.
3. The former necessarily involves a contract with the Mayor representing in behalf of the Municipality while the latter has no similar characteristics other than being dependent of available funding.
4. The former necessitates payment of goods delivered and services rendered while the latter depends on availability of funds.

1)The former is about payment of works by a government contractor, the latter is about travelling expenses of a government employee.

It is only but logical to think that there is mutual consent between the government contractor and the municipal government and that there is a contract to deliver the obligations of both party.  This is far different from the Nessia case where that thing being claimed for is reimbursement of amount incurred for his travelling expenses.

In EPG Construction Co., et al v Hon. Gregorio R. Vigilar, G.R. No. 131544, March 16,  2001 (354 SCRA 566) the Court again refused to stamp with legality [the] act of evading the payment of contracts that had been completed, and from which the government had already benefited.  The Court held:

Although this Court agrees with respondent’s postulation that the “implied contracts”, which covered the additional constructions, are void, in view of violation of applicable laws, auditing rules and lack of legal requirements, we nonetheless find the instant petition laden with merit and uphold, in the interest of substantial justice, petitioners-contractors’ right to be compensated for the “additional constructions” on the public works housing project, applying the principle of quantum meruit.

If the claim of the contractor is sustained (which will surely be), there will now be a basis of the mandatory appropriation by the Sangguniang Bayan such amount fixed by Court. But this cannot happen simultaneously as validity of claim must be upheld first.

2) The former necessarily involves procurement (of works) the funding of which is more likely under “maintenance and other operating expense” of fund while the latter falls under funding category of “personal services”. 

There is also a big difference in the nature and classification of funding in both cases. Repair and maintenance works will be more likely to fall under Maintenance and Other Operating expense (MOOE). In case of civil works, the funding under this class is intended to either be implemented by (1) administration or force account, or (2) by contract. It is evident that the problem involves the second one, which will be covered by a different rule – procurement.

Travelling allowances are under Personal Services (PS). Under government accounting and auditing rules, PS must not exceed 45% of the annual budget. It includes all the salaries, wages, allowances and other incidental benefits for employees. That is the main reason why some benefits like travelling allowances may be validly refused due to insufficiency of funding.

3) The former necessarily involves a contract with the Mayor representing in behalf of the Municipality while the latter has no similar characteristics other than being dependent of available funding. 

As earlier mentioned, the problem in the exam involves procurement. By entering into contract, whether express or implied, the municipal government is already bound comply with procurement laws, rules and regulations. Why sue the Mayor and not the Municipal Council? Under Section 5(5) of the Revised Implementing Rules and Regulations of R.A. No. 9184:

t) Head of Procuring Entity. Refers to: x x x iii) local chief executive, for LGUs x x x (underscoring supplied)

The Mayor, being the Head of Procuring Entity shall be responsible for the approval and disapproval of the procurement process. He is also deemed as the representative of the municipal government on transactions concerning procurement without further approval from the sanggunian. This is further elaborated in DILG Opinion No. 9 s. 2006 (February 17, 2006):

[O]nce the budget for a particular contract is already authorized by the [sanggunian] via an annual or supplemental appropriation ordinance… head of procuring entity, no longer needs to secure any further authorizations from his/her sanggunian to enter into contract… as it could have not been the intent of our Congress to paralyze local government projects/contracts through circuitous or redundant procedures. (emphasis supplied)

4) The former necessitates payment of goods delivered and services rendered while the latter depends on availability of funds. 

The suggested answer was probably premised in the cited case of Baldivia vs. Lota, 107 Phil. 1099 (1960):

“Indeed, respondent could have, and should have, either included the claim of petitioners herein in the general budget he is bound to submit, pursuant to section 2295 of the Revised Administrative Code, or prepared a special budget for said claim, and urged the municipal council to appropriate the sum necessary therefor. In any event, if the municipal mayor fails or refuses to make the necessary appropriation, petitioners may bring an action against the municipality for the recovery of what is due them and after securing a judgment therefor, seek a writ of mandamus against the municipal council and the municipal mayor to compel the enactment and approval of the appropriation ordinance necessary therefor (19 R.C.L. 1951-1052; 34 Am. Jur., 950-951; 35 Am. Jur., 21). (emphasis and underscoring supplied)

Problem No. 9 does not include the fact that the Mayor failed to make the necessary appropriation as required under Sec. 2295 of the Revised Administrative Code, so that a writ of mandamus against the municipal council is proper. The only thing clear in the set of facts is that Mayor Manda Raya refused to pay him. There can never be a similar excuse as in the Nessia case that the “claim could not be approved because they have exceeded the budgetary appropriations therefor”. Under Section 7 of R.A. No. 9184:

[N]o government Procurement shall be undertaken unless it is in accordance with the approved Annual Procurement Plan of the Procuring Entity.

The Annual Procurement Plan shall be approved by the Head of the Procuring Entity and must be consistent with its duly approved yearly budget. It follows that there is already an approved Annual Procurement Plan with Approved Budget for the Contract (ABC) as defined under Section 5(a) of R.A No. 9184. Following the presumption of regularity on the procurement process, excuse to pay due to insufficient funding is untenable.

Granting, arguendo, that the hiring of contractor was outside the scope of government procurement, this will not change the answer to sue the Mayor. This will even exculpate the Municipal Council from any suit considering that the Mayor acted in abuse of his discretion without proper authority from the Sanggunian.

This is however, not to say that the “suggested answer” is wrong. The alternative answer must also be given its due course.

Hence, it is respectfully submitted that letter (a) should also be considered.

Unfortunately, my effort was rebutted by, according to the professor, irrelevant assertions. Well, I cannot argue further. Enough that I have established the foundation of my contentions. I did not get any precious point, but I have learned my lesson. Just keep it simple 🙂