Saturday, April 30, 2005
THEORY OF RELATIVITY
I recently had the opportunity to ask Justice Hilarion Aquino about remedies available to an offended party where the information had been dismissed outright for lack of probable cause (see Got Cause?).
A hot topic of discussion among judges that they couldn’t resolve by themselves was whether or not the offended party could still prosecute the civil claim.
In the Philippines, unlike some jurisdictions, the offended party is entitled to prosecute his claim for his personal injury in the criminal action. What the judges can’t seem to agree on, is whether or not, upon a finding that there is no probable cause to prosecute the accused for the criminal case, the civil claim may proceed in the criminal case.
On one hand, some judges say yes. They say it is only just that an offended party should be allowed to pursue his claim so that he may avoid having to go through the inconvenience of filing a separate suit, and thus avoid a multiplicity of suits.
Some of us, including this writer, say no.
Thus, the question I laid at Justice Aquino’s feet. His answer?
“YES! And let me tell you why!” Judges in concurrence with me gasped at this apparent loss in the battle of opinions. “To prosecute a civil claim successfully, one only needs a preponderance of evidence. To ensure that a criminal case is given due course in Court, one needs probable cause, a level of evidence higher than mere preponderance. Thus, as relative to preponderance, probable cause is a higher standard of evidence, the civil claim may be prosecuted.”
I’m sure that would have ended all debate before most fora. Except, the good justice ended his answer with, “That is my THEORY.”
With all due respect to the good justice, please allow us in the negative to continue to disagree.
The chief point of contention for the contumacious ;-) is the fact that the civil liability sought to be prosecuted in a criminal action is that which arises from the criminal act itself. This is very different from the liability that arises from a valid cause of action in a civil case, personal injury included. The only valid conclusion that can be derived from the premises, therefore, I SUBMIT, is that the civil claim can no longer be pursued once a judge dismisses a case outright for lack of probable cause for when the Judge does so, he states at the earliest instance, that there is no cause to believe a crime has occurred, and so the basis of civil liability is absent.
This is vastly different from when an offended party has already presented evidence and the Court, having found no criminal liability, awards the civil claim anyway. In this instance, evidence has already been presented, and the inconvenience for the offended party should he have to file a separate civil claim is manifest, for he would have to prove once again what he had already proven in the criminal action, an unnecessary multiplicity of suits. Note that the civil liability awarded is not based on any criminal act.
When the case has been dismissed for lack of probable cause, however, the Court makes an express statement that there is no civil liability, as there is no probable cause to believe that the criminal act that gives rise to the civil liability, has occured. When the Court does grant an offended party his civil claim despite acquitting him, the Court has simply found that based on the evidence presented, the accused is civilly liable to the offended party for some reason other than a crime.
Which is why the better remedy for the offended party in the latter instance is to file a separate civil suit.
A hot topic of discussion among judges that they couldn’t resolve by themselves was whether or not the offended party could still prosecute the civil claim.
In the Philippines, unlike some jurisdictions, the offended party is entitled to prosecute his claim for his personal injury in the criminal action. What the judges can’t seem to agree on, is whether or not, upon a finding that there is no probable cause to prosecute the accused for the criminal case, the civil claim may proceed in the criminal case.
On one hand, some judges say yes. They say it is only just that an offended party should be allowed to pursue his claim so that he may avoid having to go through the inconvenience of filing a separate suit, and thus avoid a multiplicity of suits.
Some of us, including this writer, say no.
Thus, the question I laid at Justice Aquino’s feet. His answer?
“YES! And let me tell you why!” Judges in concurrence with me gasped at this apparent loss in the battle of opinions. “To prosecute a civil claim successfully, one only needs a preponderance of evidence. To ensure that a criminal case is given due course in Court, one needs probable cause, a level of evidence higher than mere preponderance. Thus, as relative to preponderance, probable cause is a higher standard of evidence, the civil claim may be prosecuted.”
I’m sure that would have ended all debate before most fora. Except, the good justice ended his answer with, “That is my THEORY.”
With all due respect to the good justice, please allow us in the negative to continue to disagree.
The chief point of contention for the contumacious ;-) is the fact that the civil liability sought to be prosecuted in a criminal action is that which arises from the criminal act itself. This is very different from the liability that arises from a valid cause of action in a civil case, personal injury included. The only valid conclusion that can be derived from the premises, therefore, I SUBMIT, is that the civil claim can no longer be pursued once a judge dismisses a case outright for lack of probable cause for when the Judge does so, he states at the earliest instance, that there is no cause to believe a crime has occurred, and so the basis of civil liability is absent.
This is vastly different from when an offended party has already presented evidence and the Court, having found no criminal liability, awards the civil claim anyway. In this instance, evidence has already been presented, and the inconvenience for the offended party should he have to file a separate civil claim is manifest, for he would have to prove once again what he had already proven in the criminal action, an unnecessary multiplicity of suits. Note that the civil liability awarded is not based on any criminal act.
When the case has been dismissed for lack of probable cause, however, the Court makes an express statement that there is no civil liability, as there is no probable cause to believe that the criminal act that gives rise to the civil liability, has occured. When the Court does grant an offended party his civil claim despite acquitting him, the Court has simply found that based on the evidence presented, the accused is civilly liable to the offended party for some reason other than a crime.
Which is why the better remedy for the offended party in the latter instance is to file a separate civil suit.
Thursday, April 07, 2005
FORGET "SUGBO"
We’ve all heard the story. Although different versions mention either Magellan’s or Urdaneta’s expedition, the story is the same.
When the Spaniards came, they found some natives gathered around the campfire. Asking for the name of the place, they pointed to the ground. The natives thought they were pointing at the ashes of the campfire, so they replied, “Sugbo.”
Thus, the myth that the native name of Cebu is “Sugbo”.
This, of course, is a fictitious story. Magellan had the services of Enrique, adept in the language of the natives. Pigafetta records the name of the town as “Zzubu” (without a “g”).
As a little boy, I could never find an 80 year old who would tell me that the name of the city I was born in was “Sugbo.” It was always Cebu.
Unfortunately, decades of Tagalog ethnocide (Cebuanos are not taught Visayan, the language of which Cebuano is a dialect, in school and are encouraged to use Tagalog or English outside the classroom) ensured that many Cebuanos would believe this story. The result can be seen in how quickly native Cebuanos name their restaurants “Sugbo-sugbo” and such, and government officials hail their projects as for “Sugbuanons” (too close to "Sinugba", the Cebuano word for "barbecue", if you ask me. How about it, Sinugba-anons?).
Few things could be considered a greater insult to the Cebuanos. The name “Sugbo” is derogatory as it is. “Sugbo” was adopted as the “Pilipino” name for Cebu only because the Tagalogs managed to have Tagalog made the basis for the “Pilipino” language to the consternation of the Visayans.
The National Language Committee that was created then adopted a truncated alphabet without the letters C, J,V and Z. Unlike Tagalog, all four letters are essential in Visayan and Cebuano.
The committee then scoured the Visayan language for words that would come closest to “Cebu” that could be spelled in Tagalog. This search yielded the word, “Sugbo”. To give credence to the name, the fable that there was confusion between the Spaniards and early Cebuanos was created.
A noted Cebuano historian, Dr. Resil Mojares, claims that the name Cebu has its origins in an early Malay phrase that means “to walk on water.” (Ashes might be credible if Cebu had a volcano.) Other linguists opine, and this to me is the more logical explanation, that the name Zzubu, or Zebu, has the same origin as the Malay word “Sebu” which means “full” (as in stomach) or having in abundance.
If we go over Pigafetta’s chronicles, it is clear that the town of Zzubu was the most developed or civilized of all the towns of the Philippines, to be surpassed by Manila only when the Spaniards made it their capital. Thus, that the native name of Zzubu or Zebu meant “a place of abundance” is the more likely origin of the proud city’s name.
Time to forget “Sugbo.”
When the Spaniards came, they found some natives gathered around the campfire. Asking for the name of the place, they pointed to the ground. The natives thought they were pointing at the ashes of the campfire, so they replied, “Sugbo.”
Thus, the myth that the native name of Cebu is “Sugbo”.
This, of course, is a fictitious story. Magellan had the services of Enrique, adept in the language of the natives. Pigafetta records the name of the town as “Zzubu” (without a “g”).
As a little boy, I could never find an 80 year old who would tell me that the name of the city I was born in was “Sugbo.” It was always Cebu.
Unfortunately, decades of Tagalog ethnocide (Cebuanos are not taught Visayan, the language of which Cebuano is a dialect, in school and are encouraged to use Tagalog or English outside the classroom) ensured that many Cebuanos would believe this story. The result can be seen in how quickly native Cebuanos name their restaurants “Sugbo-sugbo” and such, and government officials hail their projects as for “Sugbuanons” (too close to "Sinugba", the Cebuano word for "barbecue", if you ask me. How about it, Sinugba-anons?).
Few things could be considered a greater insult to the Cebuanos. The name “Sugbo” is derogatory as it is. “Sugbo” was adopted as the “Pilipino” name for Cebu only because the Tagalogs managed to have Tagalog made the basis for the “Pilipino” language to the consternation of the Visayans.
The National Language Committee that was created then adopted a truncated alphabet without the letters C, J,V and Z. Unlike Tagalog, all four letters are essential in Visayan and Cebuano.
The committee then scoured the Visayan language for words that would come closest to “Cebu” that could be spelled in Tagalog. This search yielded the word, “Sugbo”. To give credence to the name, the fable that there was confusion between the Spaniards and early Cebuanos was created.
A noted Cebuano historian, Dr. Resil Mojares, claims that the name Cebu has its origins in an early Malay phrase that means “to walk on water.” (Ashes might be credible if Cebu had a volcano.) Other linguists opine, and this to me is the more logical explanation, that the name Zzubu, or Zebu, has the same origin as the Malay word “Sebu” which means “full” (as in stomach) or having in abundance.
If we go over Pigafetta’s chronicles, it is clear that the town of Zzubu was the most developed or civilized of all the towns of the Philippines, to be surpassed by Manila only when the Spaniards made it their capital. Thus, that the native name of Zzubu or Zebu meant “a place of abundance” is the more likely origin of the proud city’s name.
Time to forget “Sugbo.”
Wednesday, April 06, 2005
SO-LONG SPORTS
Solar Sports, the exclusive carrier of the Manny Pacquiao - Erik Morales fight (you couldn't even see it on ESPN) suffered a major embarassment when everyone learned of the result before they could broadcast the match, losing a lot of viewers who would have otherwise lapped up their sponsor's ads.
Solar obviously hadn't heard of the internet, text messaging and in some cases, International Direct Dial. The less fortunate fight fans even had the pleasure of hearing the fight live blow for blow on radio, harkening back to the '40's and '50s.
There obviously is no end to corporate greed, but this time, Solar Sports' plot backfired on it.
In order to expand advertising time, carriers of major fights delay the broadcast so that they can expand the time in between rounds (1 minute) to around 15 minutes.
Thus, come fight time, the unfortunate Filipino viewer who doesn't know better is treated to the undercard.
By pretending that we still lived in the dark ages, however, Solar Sports lost a lot of viewers when word had spread that our boy Manny had lost.
If I remember correctly, what Solar Sports did is illegal. Mr. Ferdinand Marcos was a fight fan and banned this nefarious practice.
Now when I was a little boy before greedy TV stations discovered this trick, the way to make advertising time was to generate excitement by gathering a bunch of boxing experts who would analyze the strengths of the boxers and show documentaries about the fighters' lives and careers, both of which would allow for lots of advertising, but, come fight time, the broadcast would be LIVE, even if the quality of the video was as good as that of Apollo 11's landing on the moon. Heck, we even got to see those pretty "round girls".
All that however, has disappeared in favor of G-R-E-E-D.
They should change the name to SO-LONG SPORTS, for thinking that they could make the fight fans wait for so long.
Solar obviously hadn't heard of the internet, text messaging and in some cases, International Direct Dial. The less fortunate fight fans even had the pleasure of hearing the fight live blow for blow on radio, harkening back to the '40's and '50s.
There obviously is no end to corporate greed, but this time, Solar Sports' plot backfired on it.
In order to expand advertising time, carriers of major fights delay the broadcast so that they can expand the time in between rounds (1 minute) to around 15 minutes.
Thus, come fight time, the unfortunate Filipino viewer who doesn't know better is treated to the undercard.
By pretending that we still lived in the dark ages, however, Solar Sports lost a lot of viewers when word had spread that our boy Manny had lost.
If I remember correctly, what Solar Sports did is illegal. Mr. Ferdinand Marcos was a fight fan and banned this nefarious practice.
Now when I was a little boy before greedy TV stations discovered this trick, the way to make advertising time was to generate excitement by gathering a bunch of boxing experts who would analyze the strengths of the boxers and show documentaries about the fighters' lives and careers, both of which would allow for lots of advertising, but, come fight time, the broadcast would be LIVE, even if the quality of the video was as good as that of Apollo 11's landing on the moon. Heck, we even got to see those pretty "round girls".
All that however, has disappeared in favor of G-R-E-E-D.
They should change the name to SO-LONG SPORTS, for thinking that they could make the fight fans wait for so long.
Saturday, April 02, 2005
IN MEMORIAM: POPE JOHN PAUL II
In memory of Pope John Paul II, my friend and I placed flowers at the only spot he held mass in the City of Cebu, at the IT park at a corner near People's Support. We thought others would follow suit, but because the cross that used to mark the spot (the guards informed me it had been moved to Ayala Heights, up in the mountains) was no longer there, they had a hard time finding the spot, so our plan to build a mountain of flowers for the Pope ended with two bouquets.
I think maybe the guys at Ayala should restore the cross and build a small chapel there with the cross at its altar, if only to honor the memory of this great man.
Of course, in this City and Province where the residents notoriously fail to give any significance to historical landmarks (who else would convert Fort Santiago into a zoo, leave the City cemetery where a president is buried to squatters, and jacket a Spanish watchtower in concrete?), that's not likely to happen.
I think maybe the guys at Ayala should restore the cross and build a small chapel there with the cross at its altar, if only to honor the memory of this great man.
Of course, in this City and Province where the residents notoriously fail to give any significance to historical landmarks (who else would convert Fort Santiago into a zoo, leave the City cemetery where a president is buried to squatters, and jacket a Spanish watchtower in concrete?), that's not likely to happen.
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