Atty. Ensign M. Icamen

Author: Atty. Ensign Icamen

  • Gender-Biased or Sexual Orientation-Biased Slurs Have No Place in Courts

    Gender-Biased or Sexual Orientation-Biased Slurs Have No Place in Courts

    July 13, 2022

    Any form of discrimination by reason of gender or sexual orientation made by a judge and directed against any person with business before the court shall never be tolerated and must be strongly rebuked.

    A lawyer engaged in litigation of cases, appearing in courts and arguing cases before a judge, will always certainly come across a judge who’s so domineering and so imposing that will sometimes just make the lawyer keep his/her mouth shut, avoid engaging that judge, and just hope the hearing be finished as he/she just wants to get over with it. I would always pray that I may be spared of judges like them in my cases. But if the luck is not really in your favor, you may encounter these kind of judges. Some would even belittle the law school where that lawyer graduated. Some would make nasty comments on the way a lawyer is dressed. I mean, it is mandatory that a lawyer should appear in court properly attired, but it is different if a comment picks on the lawyer’s choice of outfit especially if such outfit is not really disturbing. Some would impose their religious beliefs on the litigants.

    This is the case of Marcelino Espejon and Erickson Cabonita vs. Hon. Jorge Emmanuel M. Lorredo, Presiding Judge, Metropolitan Trial Court, Manila, Branch 26 wherein, the judge uttered and/or made comments which are gender-biased. He lectured the litigants before his court about some biblical teachings. When I read the case, I did not wonder because I once appeared before this judge in his sala situated in the old Ombudsman building directly across LRT 1 Central Terminal. Here the Hon. Supreme Court made the following pronouncements:

    1. The Hon. Supreme Court clarified what is misconduct. – “Misconduct is defined as a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. In order to differentiate gross misconduct from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule, must manifest in the former. In other words, it must be shown that the acts complained of were committed with fraud, dishonesty, corruption, malice or ill will, bad faith, or deliberate intent to do an injustice.63 Wrongful intention, therefore, sits at the core of the offense of gross misconduct. For all of Judge Lorredo’s faults in this case, the elements of gross misconduct are nonetheless wanting.”
    2. The Hon. Supreme Court reminded the judges that they are obliged, at all times, to observe propriety, discreetness and due care. – “As a final word, the Court once again finds it imperative to remind members of the bench that while not every error or mistake in the performance in their official duties may render them administratively liable, absent proof of fraud, dishonesty, corruption, or conscious and deliberate intent to cause an injustice, they are still obliged, at all times, to observe propriety, discreetness and due care in the performance of their official functions. While judges are not completely stripped of their freedom to express, exercise, or uphold their religious beliefs and convictions, it goes without saying that in doing so, their foremost duty to obey the rule of law should not stand to suffer. As the Court has consistently said in the past, obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless.”

    The Hon. Supreme Court reminded that any form of sexual orientation or gender discrimination shall never be tolerated and must be strongly rebuked. – “At the same time, the Court has always espoused care in the conduct of judicial proceedings, ever sensitive not to unjustifiably offend the litigants and erode the public’s confidence in our justice system. Thus, any form of discrimination by reason of gender or sexual orientation made by a judge and directed against any person with business before the court shall never be tolerated and must be strongly rebuked. Judge Lorredo must be reminded that the Court has already made a recognition of the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. The Court is cognizant that they have suffered enough marginalization and discrimination within our society. It is not difficult to imagine the reasons behind this censure — religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of members of the LGBTQIA+ community themselves and their perceived lifestyle. Inasmuch, however, that these so-called “generally accepted public morals” have not been convincingly transplanted into the realm of our law, there should be no reason for judges to add to the burdens of members of the LGBTQIA+ community through the swift hand of judicial review, or to effectively lend a hand in perpetuating the discrimination they face, whether that effort is self-evident or thinly veiled under claims of religious beliefs or freedom of expression.”

    Reference

    [1] A.M. No. MTJ-22-007 (Formerly OCA IPI No.19-3026-MfJ)

  • Greed for Power and the Party-list System

    Greed for Power and the Party-list System

    February 16, 2025

    Marginalized groups protesting for representation through partylist system.

    At the onset of the partylist groups’ participation in the Philippine politics and elections, all partylist groups are members of marginalized sector. They were very few that even if they join together their voice and position on a particular issue could hardly be heard or recognized. But I think they were real non-conformist.

    Powerful political clans dominating the partylist system in modern Philippine politics.

    When the ruling of the Supreme Court in the case of Atong Paglaum, Inc., represented by its President, Mr. Alan Igot, Petitioner, vs. Commission on Elections, Respondent G.R. No. 203766, April 02, 2013 was promulgated, the partylist system became a free for all enterprise that was opened to all. Now, the partylist system has been flooded by politicians who belong to the powerful and wealthy families. Some belong to political clans that dominate the geographical district representations, and some are members of prominent and powerful business families. The system became a haven for politicians whose occupation of their respective positions has been cut by term limitations set by the constitution or the law. The system is likewise being used to expand the number of family members occupying a political position at particular period or term. They are already dominant political clans, and they keep on expanding like a flourishing business. Party-list congressmen today dominate the halls of congress. Some are holding powerful committees, like the committee on appropriations which is chaired by partylist representative who is a prominent businessman and strong ally of the administration. Almost all of them are allied to the administration. I hope people will realize that the partylist representations belong to the groups who have real and truthful advocacies for the people.

    Following is the portion of the decision in the case of Atong Pag Laom that confirms that partylist system is not limited to the marginalized sectors of the society.

    “Under the partylist system, an ideology-based or cause-oriented political party is clearly different from a sectoral party. A political party need not be organized as a sectoral party and need not represent any particular sector. There is no requirement in R.A. No. 7941 that a national or regional political party must represent a “marginalized and underrepresented” sector.It is sufficient that the political party consists of citizens who advocate the same ideology or platform, or the same governance principles and policies, regardless of their economic status as citizens.

    “Section 5 of R.A. No. 7941 states that “the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.” The sectors mentioned in Section 5 are not all necessarily “marginalized and underrepresented.” For sure, “professionals” are not by definition “marginalized and underrepresented,” not even the elderly, women, and the youth.  However, professionals, the elderly, women, and the youth may “lack well-defined political constituencies,” and can thus organize themselves into sectoral parties in advocacy of the special interests and concerns of their respective sectors.”

    The conflict between the partylist law’s intent and its exploitation for political power.

    Unfortunately to the Filipino people, this system is being used by some to satisfy their cravings for supremacy and authority. The Supreme Court has spoken, the partylist system is not limited to the marginalized sector, but I am certain the Supreme Court did not mean to sanction the current practice of some powerful and privileged individuals of using the system to feed their insatiable greed for power and dominance.

  • Tax Liabilities, Zacchaeus of Jericho, and Corruption

    Tax Liabilities, Zacchaeus of Jericho, and Corruption

    Corruption in Philippine tax law and BIR compliance.

    July 26, 2022

    Full digitalization of the Bureau of Internal Revenue will be a huge game changer.

    My colleague related to me her recent experiences in transacting with the Bureau of Internal Revenue (BIR). That experience gave her a nightmare she could not even imagine. Unfortunately, that is not an uncommon experience of persons dealing with the BIR. How would you feel if you are assured that a BIR personnel will assist you when you transact with them? Anybody could only imagine the feeling of exhilaration once introduced to a BIR personnel who promised to help and lessen tax liabilities arising from a simple transaction of buying and selling a piece of land. Of course, anyone will be glad. But the nightmare will get into one’s nerves once he/she is informed that such person (the BIR personnel) will rake inscrutable and gigantic amount of money from the transaction. Such BIR personnel’s share is larger than what the government will receive. The funny thing is that they can always devise means to lower the taxes payable but they must get half of the amount they insist was saved by the taxpayer. Take note that they always find ways to lower the liability in such a gargantuan difference. It is no wonder if from time to time you hear news about a BIR personnel being entrapped by NBI agents.

    For example, in a purchase of a parcel of land for the amount of 100 million pesos, the taxpayer must pay capital gains tax or VAT and documentary stamp tax in the amount of, let’s say, 30 million pesos. These BIR magicians will offer a computation of taxes which is way lower than the usual, let’s say, 6 million pesos, and using the computations of BIR magicians, the taxpayer will only pay a lowered tax of 6 million. However, to be able to enjoy such a lowered computation, the taxpayer must agree to give to the BIR personnel half of the 24 million which is the amount supposedly saved by the taxpayer. In effect, the taxpayer, in concert with the BIR magicians, would be able to save 12 million pesos and actually deceive the government the amount of 24 million pesos. Who will not be tempted to bite this? But that will never be shared to a taxpayer until the taxpayer agrees to settle the tax liability in a manner they showed it. Because the taxpayer always wants to pay a lower amount of tax, he/she will always agree to the proposal.

    In another example, when a Letter of Authority (LOA) from the BIR is issued to a business entity, the end result would almost always be settlement without opening the books of accounts of such company. A LOA empowers a revenue officer of the BIR to examine the books of accounts and other accounting records of a taxpayer to enable the BIR to assess and collect the correct amount of taxes. The LOA will be followed by a preliminary assessment for a huge amount. The BIR examiner would always find errors and lapses in the taxpayer’s books. Penalties and surcharges will always be imposed. Unfortunately, in-house accountants and business owners would always be willing to settle so that their books may not be opened. Sometimes, even the companies or business owners who are most ready to present their books would end up settling.

    In this instance corruption comes in during settlement. There would be negotiation and tax liability may be lowered for a price. Sometimes, a 20 million pesos tax liability could be lowered to as low as 1 million pesos provided the company taxpayer agrees to give a certain amount which is almost always higher than 1 million pesos, the amount which will be paid to the government. In the end, the taxpayer wins, the examiner wins but the government loses.

    The above stories are just examples of events that further degrade the integrity of the BIR and be labelled as one of the most corrupt agencies of the government. Every Filipino prays that this trend will change. Unfortunately, this practice seemed to be embedded already in such agency’s bureaucratic practices. As long as the BIR personnel or assessor or collector or officer has discretion in determining how much is the tax liability of a taxpayer, all transactions in that agency are prone to being tainted with corruption.

    One of the solutions, I believe, is to remove the discretion from the BIR personnel. For example, in the collection Authorizing of taxes arising from the sale of real property, the process of securing the Certificate Registration (CAR) should be in such a way that the taxpayer and the BIR personnel could not negotiate. I am happy to hear a statement of the new BIR commissioner saying, “I am committed to strengthening tax administration through digitalization. This will make the tax collection system more efficient and less prone to graft and corruption.”[1]  Digitalization will certainly lessen corruption in a colossal degree. Digitalization should be programmed in such a way that the taxpayer would have no choice but to pay the correct taxes. The discretion of the BIR examiner or assessor must be removed. In securing a CAR for transfer of titles of real properties for example, the BIR system[2] must automatically compute the tax liability once data are entered. There must also be a devise to ensure that the taxpayers and/or the BIR personnel are entering the correct data in every transaction. It should just be a mere PASS/FAIL or COMPLIED/UNCOMPLIED type of system totally removing the discretion of any BIR personnel. It must be completely automated and devoid of any human intervention. I still couldn’t imagine what type of computer system or program is needed to lessen, if not totally eradicate, the corruption in that agency. But with the many transactions I had with that agency, I strongly believe that digitalization will certainly make a difference.

    References

    [1]https://news.abs-cbn.com/business/06/30/22/profile-next-taxman-is-a-woman

    [2] The system which should be created for its digitalization program.