Tuesday, March 31, 2009

Effective Bar preparation methods

(Editor's Note: This was written in 2009. Please  make the proper adjustments for the 2012 format of the exams.)

How to prepare for the Bar; effective Bar review methods; how to top the Bar; easy ways to pass the Bar - there are many ways you can call it but there is only one goal: To obtain the license to practice law in the Philippines.

Here are some pertinent portions of Atty. Abelardo T. Domondon's lecture recently. These are what I took note of or interpreted/restated as accurately as I can. However there are still important portions that I skipped. For a complete discussion, you may buy his book "Effective Bar Review Methods" sold by Primus.

"Be a Bar topnotcher.

Challenges that Bar examinees may face: communication skills, handwriting, poor English, defective logic, carelessness, inadequate preparation.

There is no relation at all in the grades in law school and your chances to top the Bar.

Know your enemy.

New ball game each year. Also take note of new rules, like: designation of two examiners per subject.

Prepare your petition papers early. July is already a late period to prepare them.

You don't have to read all the cases. Read only the landmark cases.

Gather all the codals.

Pay attention to: knowledge, recollection, communication, and speed.

Be very careful in the afternoon because the alloted time is lesser.

Write fast. Write legibly. Three short sentences, except in enumerations and distinctions.

What is the impact of the two-examiner rule? The 3-sentence rule may no longer be applicable because the examiner will have more time to evaluate your booklet and analyze your answers.

Are you ready to review for the Bar? You need a plan, to determine your SWOT.

You only have 114 days left between April 20 to August 29, 2009.

You need a minimum of P50,000 for the review.

You only have a max of 7 reading hours a day.

Reading speed is 3 minutes per page including comprehension and understanding. There are 10,000 pages you have to read.

Need for speed. Test your speed (read his book on how to do this).

If you make it easy for the examiner to check your notebook, he'll repay you with a high grade.

Physical resources: Get a thorough physical exam, especially an eye exam. You would be putting your eyes to extreme strain during the review period.

Review materials: Better that you use your old books; they are like old friends.

Review supplies: I don't recommend yellowpads and reading from the computer. Use 5" x 8" index cards for your notes as they could easily be inserted and are portable. Audio recorders are a waste of time and money if you don't pay attention to the lecture because you're thinking that you're recording it anyway.

Financial resources: Save. Borrow. Beg. The bottomline: You should no longer worry about money because it will distract you from your review.

Review school: Look for the lecturers in choosing a good review school. Be aware of those brilliant or star lecturers who will just put you to sleep.

Sometimes, the daily review lectures can be a waste of time.

Stabilize your EQ.

Rest on Sunday.

Adhere to your daily review schedule as if your life depends on it.

Reading everything would lead you to perdition. Be selective on where to focus on. Because even if you read everything, you cannot remember them all.

You can recall if you need to, and if you want to. Have a strong motivation to remember.

You must limit the materials that you have to master.

It is motivation that allows you to concentrate.

Read one section at a time before marking.

Bring your book during lectures so that you can mark appropriate portions related to the lecture.

Have your own mock Bar exams.

Read the area covered by the lecture prior to the lecture.

Be well rested when you attend lectures. Otherwise, you'll end up sleeping in the comfortable, airconditioned environment of the lecture hall.

A wrap-up review will help.

Pre-week is for psychological preparations.

Exam Days: War zone is still in La Salle, not in UE as earlier rumored.

An answer is complete if it cannot anymore be subjected to the question "Why".

Always look at the rationale behind every law or provision.

It is always the fear of the unknown that is difficult to surmount. Kaya ninyo 'yan!"


Tuesday, March 17, 2009

Resort's "full-time nurses" not regular employees

According to a Sun.Star Cebu report on March 18, 2009, the Supreme Court has dismissed a labor case filed against Shangri-la’s Mactan Island Resort.

The five-star resort allegedly failed to grant regular employment status to two nurses despite years of service. The Court said that while the Labor Code requires companies to make available the services of a “full-time registered nurse” to its employees, it does not need to actually hire one.

In interpreting Article 157 of the Labor Code, the Court said that “the phrase ‘services of a full-time registered nurse’ should thus be taken to refer to the kind of services that the nurse will render in the company’s premises and to its employees, not the manner of his engagement.”

The nurses in this case accused the resort of violating the labor law by not giving them benefits due to regular employees. "They complained of underpayment of wages, non-payment of holiday pay, night shift differential and 13th month pay," Sun.Star reported.

Shangri-la’s management countered that the two were not resort employees but people hired by the resort's retained physician.

Arbitrators said there was an employer-employee relationship between the nurses and Shangri-la because the former performed work necessary and desirable to Shangri-la’s business; and that they observed clinic hours and rendered services only to Shangri-la’s guests and employees. Their salaries also passed through Shangri-la’s Human Resource Department and that in-house physician who hired them is also an employee.

A memorandum of agreement between the doctor and Shangri-la merely served to circumvent the doctor’s tenurial security and that of the employees under her, according to an earlier judgment.

Later at the Court of Appeals, it regarded the resort as "not principally engaged in the business of providing medical or health care services,” such that the nurses “could not be regarded as regular employees of Shangri-la.”

At the Supreme Court, the nurses raised two points: First, that the resort is required to hire a full-time registered nurse under Article 157 of the Labor Code; Second, whatever the effects of the MOA between the resident doctor and Shangri-la on the status of their employment is void because she isn’t a licensed sub-contractor.

But the Court held that the resident doctor is a legitimate independent contractor.

Here's the online copy of the case from the Supreme Court website: Jerome D. Escasinas, et al. Vs. Shangri-la's Mactan Island Resort, et al.

Friday, March 6, 2009

LGUs can tax mobile phone providers

Sharing you this news story from Sun.Star Cebu today, March 7, 2009:

LGUs can tax mobile phone providers

LOCAL government units (LGUs) that had trouble collecting franchise and business taxes from telecommunication firms in the past can run after the firms again for surcharges and interest.

The Supreme Court (SC) clarified this in a ruling that stemmed from a case involving Smart Communications in Iloilo City, but will have an impact on those cities or towns where Smart and other players, including Globe Telecom, operates.

Many local governments, including the Cebu City Government, had problems collecting business and franchise taxes from telecommunication companies because of a provision in the firms’ congressional franchises.

The congressional franchises say players only need to pay three percent of all gross receipts “in lieu of all taxes.”

The firms said their franchises were issued after the Local Government Code was enacted in 1991, giving cities,
municipalities and provinces tax powers. They argued the law must have intended to give them the exemption.

Section 23 of Republic Act 7925, or the Public Telecommunications Act, states that any exemption given to new players under the scheme to deregulate the telecommunications industry should also be given to the old ones.

This, the players argued, means all telecommunication players are exempt from local tax.

Pangasinan

Whether or not phone companies can be taxed was only resolved partially by the SC in the case of PLDT vs. Davao City in 2001 and in the February 2007 case of Digitel vs. Pangasinan.

In the PLDT vs. Davao case, justices said the term “exemption” in RA 7925 didn’t specifically refer to taxation but certain regulatory and reporting requirements.

In the more recent Digitel vs. Pangasinan, the justices said the “in lieu of all taxes” provision in the franchise “basically exempts firms from paying all other kinds of taxes for as long as it pays the three percent franchise tax.”

However, the ruling added, franchise taxes on telecommunications companies have been abolished by RA 7716 or the Expanded Value-Added Tax Law. The “in lieu of all taxes” clause in the legislative franchise has thus become inoperative.
The rulings of the SC did not deal with the surcharges and interest accrued over the original tax assessments.

Only “good faith and honest belief” justifies the non-collection of interest and surcharges on taxes, the SC clarified.

In the Smart vs. Iloilo case, the justices said, Smart Communications claims to have relied on good faith and the conclusion of the Bureau of Local Government and Finance (BLGF) when it first refused to pay the business and franchise taxes assessed by the city government.

However, the SC said, Smart should have known the BLGF does not have the power and authority to interpret the Tax Code, as this was clearly indicated in the 2001 ruling in PLDT vs. Davao.

So, the High Court said, the reliance was “misplaced.”

“The settled rule is that good faith and honest belief that one is not subject to tax on the basis of previous interpretation of government agencies tasked to implement the tax laws are sufficient justification to delete the imposition of surcharges and interest,” the Supreme Court’s 2nd Division ruling dated Feb. 27, 2009 said. (KNR)

Sunday, March 1, 2009

That right-to-reply bill

It's not a law yet. But the right-to-reply bill now being cooked up in Congress clearly contravenes the Constitution.

According to this bill, whose main proponent in the Senate is, of all people, Sen. Nene Pimentel, "any person written or spoken about in the print or broadcast media in connection with any allegation of wrongdoing has the right to reply in the same space, time and prominence as the original imputation."

In other words, a media entity will be bound to print or broadcast an aggrieved party's reply to any allegation of wrongdoing -- in the same space, time and prominence as the original imputation!

Read what the Constitution states about freedom of the press: "No law shall be passed abridging the freedom of speech, of expression, or of the press." Freedom of speech also means freedom not to speak. Freedom of expression also means freedom not to express, write or publish. Freedom of the press means editorial freedom to determine both content and style.

The bill is now in its final stages of being passed. President Arroyo has vowed she would veto it. Media groups threaten to question the constitutionality of the measure before the Supreme Court if it ever ripens into law.

As one community newspaper has stated in its editorial: Why did it ever come to this point? It's obvious that the bill is fraught with dangers that threaten freedom of the press in an effort to appease "onion-skinned" politicians who accuse media of unfair treatment.

This again betrays our lawmakers' propensity to propose simpleton and knee-jerk solutions to problems they have not fully understood. Of course news media in the Philippines is far from perfect! But this will never justify the passage of a law that dictates how responsible journalism should be exercised.

The media is accountable to its readers -- the public -- and so are the politicians. If a journalist is perceived to be unfair, then let him be held accountable to his readers, not to any politician. This is how a mature democracy works.

Well the thing is, we have immature politicians. Exhibit A: the right-to-reply bill.

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