Monday, June 30, 2008

Speaking of Justice (Quotable quotes from Justice Secretary Raul M. Gonzalez)

By Siesta-friendly

Alas, his appointment has been confirmed. Guess we’re in for more of these uncaring, insensitive, politically incorrect, imprudent, inappropriate (we could go on you know) pronouncements from a government official and, arguably, unethical assertions from someone in the law profession and a Justice Secretary to boot.

Now, let’s go through some of his ‘words no wisdom’ –

No career as a diplomat

Below are some examples of why he should not be allowed to speak at all (at least on the job).

On the significance of the report by Special Rapporteur on extrajudicial, summary or arbitrary executions of the United Nations Human Rights Council, Philip Alston, re extra-judicial killings in the country -

“What I am complaining [about] is the headline of our newspapers. Why do they say that Alston is the UN? Headline nyo yan. Alston is not the UN nor a bishop the CBCP. Why would you attribute the UN here? We are magnifying something coming from somebody who is nothing. He is just a rapporteur sent here but he is not the UN. His report may not even reach the UN General Assembly. He’s just a muchacho there. He is just a small fry.”[1]
He actually expected the entire UN General Assembly to conduct the investigations?

Threatening potential protesters at the ASEAN Summit in Cebu -

that they will be thrown “into the Mactan Straits and let the sharks eat them there”[2]
Together with the fundamental principles on free speech and freedom of assembly, right?

No wonder that, when Theresa Pangilinan heckled GMA during her commencement speech, and protesters held banners calling for GMA to step down, at the graduation rites of the Cavite State University, he declared –

“As far as I’m concerned, a crime was committed”. He said the protesters violated Article 153 [Tumults and other disturbance of public orders; Tumultuous disturbance or interruption liable to cause disturbance] and Article 154 [Unlawful use of means of publication and unlawful utterances] of the Revised Penal Code. … Gonzalez also said the presence of GMA aggravated any criminal liability pursuant to Article 14 [RPC].[3]
Really, his card should read Secretary of Justice for the Government.

On petitions filed and criticisms against the Human Security Act that the latter is unconstitutional and against international human rights standards -

“Until we can test the effectiveness of the law, I don’t think it’s wise for us to talk about amending it. Therefore, let us wait for the full implementation of the law, then find out whether there is ground for the criticism that right now is being announced.”[4]
And how many abuses would be required to determine the law isn’t effective? 1 … 100 … 1,000?

Explaining the high incidence of murdered journalists –

“There are media men killed in drinking sprees or because of a woman”.[5]
Ah, so that’s what it was about all along! Does the UN Commission on Human Rights already know?

On slain Peace Corps volunteer, Julia Campbell’s, actions prior to her death, and in addition to claiming that she was “a little irresponsible”, -

“Why would she walk alone in this remote mountain? … She was careless that she took a lonely walk in this deserted area.”[6]
Of course, blame the innocent victim. And, while you’re at it, completely ignore her work and dedication to help Filipinos and do so much for public service than certain government officials combined.

And, continuing his theory of victims deserving their fate -

“Threats and killings constitute a threat to press freedom … In the case of journalists, it is uncalled for because it is the media’s job to expose and to offer suggestions, but people may not have the patience to tolerate it.”
It takes special skill to uphold journalists’ right to press freedom and, at the same time, blame their exercise of the same for their deaths.


On the pending Cuenco bill which includes within Philippine territory the Scarborough Shoal and the Kalayaan Island Group in the Spratlys -

“the country faces war with China if the Cuenco Bill is passed.”[7]
Who needs Chinese diplomats? We’ve already got their mouthpieces in our midst, within our own government no less.

Yet, he says to the Inter Parliamentary Union for passing a resolution calling for the release of then detained later Rep. Crispin Beltran -

“If you don’t want to accept my explanation you can go home and tell the whole world what you want … I don’t want foreigners dictating on us.”
Unless it’s the U.S. or China, right sir?

On the DOJ’s refusal to summon First Gentleman Mike Arroyo in its inquiry into the $329-million national broadband network (NBN) deal scandal despite being identified as one of the proponents of the deal -

“It’s unfair to call on people [whose involvement cannot be proven]“.[8]
Uhmm, isn’t that what investigations are for - to prove or disprove allegations? If it’s already proven, what’s the inquiry for?

On being pressed for justification on the declaration of a state of national emergency –

“We will offer proof at the proper time. This is not the time for proving…You are not the court.”
Yes, this time, require proof only after court action is filed.

When the press asked whether MalacaƱang expects the public to swallow its statements justifying its declaration of a state of national emergency hook, line and sinker, he said –

“Why not? You are not the public.”[9]
Because the public is incurious, eh?

Of pettiness and non-sequiturs

Upon the arrest of Joma Sison (and apparently recalling earlier photos of Mr. Sison dancing with Ara Mina at a Philippine community celebration in the Netherlands) –

“What is clear is that the dancing days of Mr. Sison with actress Ara Mina are over… He cannot be in the Netherlands dancing with Ara Mina all the time.”[10]
Ah, yes, what better reason to arrest him than to prevent him from further boogieying.

To the 5 party-list representatives then staying at the Batasan seeking refuge against arrest for alleged rebellion (which were eventually dropped) -

“I hope they will go back to the mountains (because) that is where they belong”.[11]
Ah, if you, sir, only knew where we think you belong.

On television evangelist and former presidential candidate Eddie Villanueva’s fighting off the arrest warrant against him –

“Just tell Bro. Eddie Villanueva that even Jesus Christ was arrested. Maybe Eddie Villanueva thought that because he is Eddie Villanueva, he can never be arrested, whatever crime he committed. But Jesus Christ, he allowed himself to be arrested. He was arrested and he followed the law during his time.”[12]
And Judas hanged himself for allowing that to happen … Your move, sir.

About an unidentified church leader known to criticize GMA -

“There are tongues that can be transplanted to the high priest.”[13]
And how about brain transplants for certain Cabinet secretaries? Although we would prefer total body transplants … to another country.

In claiming a decline in the quality of education of the University of the Philippines –

“That school breeds the destabilizers that haunt the country every year …It is the people’s taxes that is keeping UP alive …It is the State that is paying for their schooling …I think some degree of gratitude should be there also.”[14]
Unless you can prove that GMA and her administration are the State or that protesters have no legitimate grudge, maybe you can ask UST for a refund of the tuition you paid for Logic 101. Lessons were clearly not learned.

Continuing his attack on the UP system and it’s UP alumni

“In every storm that takes place, UP students are in the forefront … As a matter of fact, our history will show that since the martial law years, students from UP were the ones who went underground and fought the government. In fact, many of them went to China and never came back.”[15]
We’re lost for words on this one.


On calls for the Cabinet to resign –

“People who abandon friends are traitors. You agree to be the President’s alter ego and then you will leave her?”[16]
Political patron over country. So admirable.

And, on criticisms against the return to U.S. custody of detained Lance Cpl. Daniel Smith pending his rape trial -

“You have to bite the bullet sometimes. I was listening to Boy Abunda [who said] that sometimes you have to make difficult decisions.”[17]
And what did Madame Auring say?

That’s all (for now) folks!



















Monday, June 23, 2008

LIGHT RIGHTS (On Easements of light and view)

By Obiter07

You wake up in the morning, always looking forward to watching the sun rise from your window. Over time you take this for granted, barely appreciating the subdued light coming through the blinds. But just wait until your next door neighbor builds his new three story townhouse and blocks your entire view altogether.

Did you have the habit of stepping out onto your porch or balcony in order to stretch your limbs? Then suddenly, you find yourself being watched by your neighbor who has conveniently added a new window in the wall separating your properties?

Are you now feeling deprived of something you always expected and wanted to be where it always had been? Don’t fret yet. You might just have a recourse in law to protect these easements.


In fine, an easement is an encumbrance imposed on an immovable, such as real property, for the benefit of another immovable belonging to a different owner. The immovable in whose favor the easement is established is called the dominant estate and the one subject to the same, the servient estate (Art. 613, New Civil Code). If it sounds a bit perverted, rest assured it is all legal.

A positive easement imposes an obligation on the owner of the servient estate to allow something to be done or of doing it himself while a negative easement prohibits the servient owner from something he could lawfully do if not for the easement (Art. 616). It sounds dirtier than what it really is. Everything to be done (or not done) here is with respect to the property and not any of the owners.

Easements of Light and View

With respect to your right to a view of your choosing, this has been classified by the Supreme Court as a “negative” easement. CID vs. JAVIER, et al. [G.R. No. L-14116. June 30, 1960.] And you can invoke this easement only by means of a formal act. This means that you have to forbid the servient owner, by means of an instrument acknowledged before the notary public, from executing an act which would be lawful if not for the easement (Art. 621).

Say you have an existing window with a view. In order to protect it, you have to execute a notarial instrument where you forbid your neighbor from obstructing it. A verbal prohibition does not suffice. (CID vs. Javier, Ibid.) So it doesn’t matter if you’ve had that view for years and years. You have to formalize your claim, otherwise you lose it.

What if your neighbor decides to sell portions of property to other parties? It shouldn’t matter since easements are indivisible and each of the owners must bear it on the part which corresponds to him. And if you divide your own property, you and your transferees can still enjoy the easement as long as there no change in its place of use nor is it made more burdensome. (Art. 618 )

Party Walls and Windows

Window openings are another matter specially when what separates your property from another is a “party wall.” No, this does not mean that this is a space where you can party. A “party wall” is a specie of easement. A party wall is something co-owned by the parties (Art. 658). And this easement is presumed unless there is a title or exterior sign, or proof to the contrary in cases of the following: “(1) In dividing walls of adjoining buildings up to the point of common elevation; (2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities; (3) In fences, walls and live hedges dividing rural lands. (572)” (Art. 659) So in the absence of contrary proof, any dividing wall is considered yours and your neighbor’s.

If you wish to claim that there is no party wall and that the structure is your own, it would serve you well to have the following exterior signs which are indicative of the ownership:

“(1) Whenever in the dividing wall of buildings there is a window or opening;

(2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar conditions on the upper part, but the lower part slants or projects outward;

(3) Whenever the entire wall is built within the boundaries of one of the estates;

(4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others;

(5) Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates;

(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other;

(7) Whenever lands enclosed by fences or live hedges adjoin others which are not inclosed. xxx” (Art. 660)

If it is a party wall which separates you and your neighbor’s property, he cannot open a window or aperture of any kind without your consent. “No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. (580) (Art. 667).”

An easement of light and view can be acquired through prescription (or the lapse of time) counted from the time of the opening of a window through a party wall. So if it’s a window that you do not like, you must act promptly to have it closed. And if the window is opened at the wall of a dominant estate, prescription runs from the time the proprietor of the adjoining property is forbidden to block it (Art. 668). Again, it appears that this has to be through a notarial prohibition.

Allowable views

Assuming you made no such prohibition, a direct view towards your property can be made only if a distance of two meters is provided for. “No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters. The nonobservance of these distances does not give rise to prescription (582a)” (Art. 670).

And if you have acquired a direct view over an adjoining property, the owner of the servient estate can still build on it provided that this is at not less than 3 meters distance (Art. 673).

In the end, it may all just depend on whether or not it’s a view that you cannot do without: if it’s a neighbor that you want to see everyday, or whom you want to see you everyday too.


Sunday, June 15, 2008

OUT OF ORDER (Direct and Indirect Contempt)

By Obiter07

Courts and bodies tasked to dispense justice (or even to just investigate like the Congress) do enjoy the privilege of receiving respect, or at least the appearance of it, from the public and from those who appear before them. We will not go into whether or not this respect is deserved all the time. But you get to have a first taste of when you hear the words “All rise” and lawyers as well as everyone else in the courtroom stand up as the judge comes in. And you hear the familiar “Your honor” every time the judge is addressed.

Contempt is based on the courts’ inherent power to “enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness of the administration of justice.” (Commissioner v. Cloribel, 127 Phil. 716, 723 [1967]; In re Kelly, 35 Phil. 944, 950 NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., et al. vs. SANGGUNIANG PANLUNGSOD OF DUMAGUETE, et al. [G.R. No. 72492. November 5, 1987.]

We will be focusing on contempt under Rule 71 of the Rules of Court (the “Rules”).

What happens when a lawyer, a witness or someone in the gallery oversteps the bounds of behavior during the formal proceedings? You can be cited for contempt of court. And it could spring from something as simple as having a cellphone ring during court proceedings, to being late and in more extreme cases, or failing to obey a directive of the court. To a certain extent, one can be subject to the vagaries and whims of the presiding judge.

In one instance, a U.S. judge jailed “nearly four dozen people over a ringing mobile phone in his courtroom.” He resorted to this after no one admitted to owning the offending phone. He has since been removed from office.[1] But it just goes to show you how a ring can put you through the wringer and behind bars.

There are two kinds of contempt, direct and indirect contempt.

Direct Contempt

In direct contempt, a person is “guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so xxx.” This is why he may be “summarily adjudged in contempt by such court and punished by a fine not exceeding P2,000 or imprisonment not exceeding 10 days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding P200 or imprisonment not exceeding 1 day, or both, if it be a lower court, (Section 1).” This is an occasion where you really court the consequences, committing contempt in the face of the judge.

Please note the general description of what contempt can be and make sure your conduct does not fall under the definition. As one practitioner noted, one contempt citation could cost a lawyer his entire appearance fee for one hearing. One judge in Metro Manila is reportedly wont to impose the full P2,000 fine for late lawyers. Being imprisoned for at least 10 days is no laughing matter either. Direct contempt is punished summarily which means on the spot.

What can you do if you believe the order is invalid? You cannot appeal but you can file a petition for certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided you file a bond fixed by the court which rendered the judgment and conditioned that you will abide by and perform the judgment should the petition be decided against you (Section 2). You may question the contempt order but it will cost you. Of course, until you do file, you have to follow the order given: that’s either paying a fine or going to prison or both.

Indirect Contempt

For indirect contempt, there must be a written charge against you and an opportunity given to comment thereon within such period as may be fixed by the court and you must be heard personally or through counsel.

Indirect contempt consists of –

“(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt xxx;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. xxx.” (Section 3)

For indirect contempt against a Regional Trial Court or a court of equivalent or higher rank, you may be punished by a fine not exceeding P30,000 or imprisonment not exceeding 6 months, or both. For contempt against a lower court, you may be punished by a fine not exceeding P5,000 or imprisonment not exceeding 1 month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, you may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved.(Section 7)

If you remain stubborn and continue to refuse or omit to do an act which is in your power to perform, you may be imprisoned by order of the court concerned until you perform it (Section 8). In theory, this could mean imprisonment for life. That is a high price to pay for disobedience although it is true that the defendant “carries the keys to his prison in his own pocket (Galvez vs. Republic Surety & Ins. Co., Inc., L-12581, May 29, 1959 as cited in Regalado, Remedial Law Compendium, Vol. 1 (1988), p. 529). He only needs to do the court’s bidding.

By whom punished

Take note that contempt is punishable not only by the courts. The Rules also “apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. xxx” (Section 12)

For example, the courts have upheld the power of the Congress to hold a witness in contempt. The Supreme Court ruled that “Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? xxx STANDARD CHARTERED BANK, et al. vs. SENATE COMMITTEE ON BANKS, et al. [G.R. No. 167173. December 27, 2007.] “

In ARNAULT vs. NAZARENO, et al. [G.R. No. L-3820. July 18, 1950.], a witness was committed to prison for failing to provide the name of a person linked to an anomalous land transaction that was being investigated by Congress. This is one time when we can pine for the old days in relation to a certain government official who refuses to answer certain questions of the Senate, invoking executive privilege. Later on he provided a name but the Congress was not satisfied that it was the correct one and he remained incarcerated (ARNAULT vs. BALAGTAS, G.R. No. L-6749. July 30, 1955). He was literally damned if he did and damned if didn’t. And only the truth, or what is perceived to be the truth, could set him free.

What happens if you think the judge or some other body is engaged in behavior that is deserving of contempt? Well, you can observe this politely, stating it for the record or asking for a reconsideration or filing an appeal or petition before a higher court. If the offender happens to be a Senator, you can file an ethics complaint. But if this is unavailing, you may have no option but to keep the contempt you feel to yourself unless you are willing to face the consequence for speaking out.

By its nature, contempt is one offense that doesn’t apply equally between the common folk and the higher ups. Try to tell a judge he’s out of order and guess who’ll be judged in contempt.

[1] Brady, Panel gives judge a ringing rebuke,


Sunday, June 8, 2008

Patriotism 101 (Do’s and Don’t’s re the National Anthem and the Philippine Flag)

By Siesta-friendly

Ever been in a movie theater when the National Anthem played and someone remained seated either finishing their snacks or just too lazy to stand? Did you raise any complaint? If you didn’t, we hope next time you will as such act is not only universally disrespectful but illegal and punishable by a P5,000-P20,000 fine and/or 1 year imprisonment.[1]

How about seeing the Philippine Flag hanging on a wall horizontally with its sun and stars on the left and blue and red fields on the right, or on a flagpole onstage at the right of the audience, or hanging as a pennant on the hood of a car? Yup, these are all prohibited treatments of our flag and also subject to the same penalties abovementioned.

While we are going through our annual Flag Days (from March 28-June12),[2] we are taking this opportunity to enlighten you folks of what anyone can and can’t do as regards the National Flag as well as the National Anthem.

It is important to remember that the flag and the anthem are symbols of national ideals and traditions and express the principles of sovereignty and national solidarity, and so reverence and respect are required by law. [3]A modicum of patriotism should be enough basis to honor them.

The National Anthem

Let’s start with the National Anthem. We won’t write the lyrics down as you should be ashamed if you don’t know the words by heart, unless you’re 3 in which case you shouldn’t be surfing the net at all. Go out and play.

What we think you may not know is that the law provides that the playing or singing of the National Anthem, “shall be in accordance with the musical arrangement and composition of Julian Felipe.”[4] As this was originally a march, we think that most playing or singing of the National Anthem might actually not be in accordance with law. However, as long as the versions are not too different from the original, they’re generally not deemed objectionable.

The law also states that when the National Anthem is played at a public gathering, the attendees should sing the anthem and that the “singing must be done with fervor.”[5] So don’t be shy. But don’t shout, or that may de deemed disrespectful.

Everybody is required to stand at attention and face the Philippine flag, and if there is none, they shall face the band or the conductor. Everyone must also salute with their right palms over their left chests during the entire anthem.[6]

By the way, playing or singing the National Anthem for mere recreation, amusement or entertainment purposes is prohibited except during:[7]

a) International competitions where the Philippines is the host or has a representative;

b) Local competitions;

c) During the “signing off” and “signing on” of radio broadcasting and television stations;

d) Before the initial and last screening of films and before the opening of theater performances; and

e) Other occasions as may be allowed by the National Historical Institute (NHI). Sorry at the moment, we don’t know what or if they’ve authorized any.

So it’s definitely not an appropriate karaoke piece.

The Philippine Flag

Again, you must already know which color field goes where or you should go back to grade school.

What you may not have learned in school is that if the flag is displayed:[8]

a) indoors on a flagpole, it should be placed at the left of the observer as one enters the room;

b) outside on a flagpole, it should be at a prominent place or a commanding position in relation to the surrounding buildings;

c) from a staff, it should project upward from the window sill, canopy, balcony or facade of a building;

d) in a suspended position from a rope, it should extend from a building to a pole erected away from the building;

e) on a wall, it should be flat vertically with the sun and stars on top; and

f) hanging in a vertical position across a street, with the blue field pointing east, if the road is heading south or north, or pointing north if the road is heading east or west.

The flag should also be displayed in all public buildings, official residences, public plazas, and institutions of learning every day throughout the year.[9]

The flag should never touch anything beneath it, such as the ground, flood, water or other objects.[10]

In addition, it is prohibited:[11]

a) To mutilate, deface, defile, trample on or cast contempt or commit any act or omission casting dishonor or ridicule upon the flag or over its surface (remember it’s not even supposed to touch the ground);

b) To dip the flag to any person or object by way of compliment or salute;

c) To use the flag:

1. As a drapery, festoon, tablecloth;
2. As covering for ceilings, walls, statues or other objects;< 3. As a pennant in the hood, side, back and top of motor vehicles (yes, even jeepneys);
4. As a staff or whip;
5. For unveiling monuments or statues; and
6. As trademarks, or for industrial, commercial or agricultural labels or designs (even if it’s PAL).

d) To display the flag:

1. Under any painting or picture (even if its GMA’s);
2. Horizontally face-up. It shall always be hoisted aloft and be allowed to fall freely;
3. Below any platform; or
4. In discotheques, cockpits, night and day clubs, casinos, gambling joints and places of vice or where frivolity prevails.

e) To wear the flag in whole or in part as a costume or uniform (rockers take note);

f) To add any word, figure, mark, picture, design, drawings, advertisement, or imprint of any nature on the flag (i.e., the flag should be depicted alone unmarked. Politicians take note.);

g) To print, paint or attach representation of the flag on handkerchiefs, napkins;

h) To display in public any foreign flag, except in embassies and other diplomatic establishments, and in offices of international organizations;

i) To use, display or be part of any advertisement or infomercial (even if it’s the government’s); and

j) To display the flag in front of buildings or offices occupied by aliens.

Once the flag shows signs of wear and tear (as when it’s faded or in anyway worn out), it should not be thrown away but solemnly burned to avoid misuse or desecration.[12] Sorry but both R.A. 8491 and the NHI are silent on what is and isn’t solemn.

With increasing aggressive advertising, especially election campaigning, we hope the respect and reverence to the Flag and the Anthem remain in people’s minds regardless of their aims. Take time to remember as well that Filipinos have fought and died under this flag, true to the words of our national anthem.

[1] Sec. 50, Republic Act No. 8491, An Act Prescribing The Code Of The National Flag, Anthem, Motto, Coat-Of-Arms And Other Heraldic Items And Devices Of The Philippines. 12 February 1998

[2] Sec. 26, Supra.

[3] Sec. 2, Supra.

[4] Sec. 37, Supra.

[5] Sec. 38, Supra.

[6] Supra.

[7] Supra.

[8] Sec. 16, Ibid.

[9] Sec. 5, Ibid.

[10] Sec. 17, Ibid.

[11] Sec. 34, Ibid.

[12] Sec. 14, Ibid.


Sunday, June 1, 2008

OFFICE ADVANCES (Sexual Harassment in the Workplace)

By Obiter07

Nothing is as unwelcome as advances that are unsolicited and indecent. It can come in all shapes and forms. Thankfully, the law now penalizes such acts in REPUBLIC ACT NO. 7877 (AN ACT DECLARING SEXUAL HARASSMENT UNLAWFUL IN THE EMPLOYMENT, EDUCATION OR TRAINING ENVIRONMENT, AND FOR OTHER PURPOSES) otherwise known as the “Anti-Sexual Harassment Act of 1995.”

In particular, the law seeks to protect “workers, employees, applicants for employment, students or those undergoing training, instruction or education” and to penalize “all forms of sexual harassment in the employment, education or training environment (Section 2).”

By whom committed

However, the law’s definition of harassment seems too limited. It only happens when “an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act.” (Section 3)

Those who induce the commission of sexual harassment, or who cooperate in the commission thereof shall also be held liable under the law. (Section 3)

The legal definition begs a couple of critical questions: Can’t sexual harassment be committed by a peer or a subordinate? Can’t it be committed without demanding, requesting or requiring sexual favors? The answers are what prompt us to consider the legal definition as too narrow. Being a key component of sexual harassment, “sexual favors” are further discussed below.

When committed

In general, sexual harassment is committed at work when:

a) the sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee

b) the act would impair the employee’s rights or privileges under existing labor laws; or

c) the act would result in an intimidating, hostile, or offensive environment for the employee. (Section 3)

In education or training, it is committed:

a) against one who is under the care, custody or supervision of the offender;

b) against one whose education, training, apprenticeship or tutorship is entrusted to the offender;

c) when the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges, or considerations; or

d) when the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.”(Section 3)

Sexual Favors

But what constitutes sexual favors? Would a clever male boss asking for his head or shoulders to be massaged by a female employee qualify? Is asking a subordinate out to dinner already a form of harassment or a gesture of sincere admiration? As the law does not cover harassment of peers and superiors, should subordinates now be fearful of being promoted from being a subordinate to a colleague of a sexual harasser?

In other jurisdictions, sexual harassment seems to over a broader range of actions. There are dangers that a law may be overbroad but it may need to be in order to afford sufficient protection to those that may be affected. In the United States, there is such a thing as harassment consisting of a “hostile environment” where the “the unwelcome sexual conduct, by supervisors or co-workers, is so pervasive or severe that it creates a hostile work environment which interferes with an individual’s work performance.”[1]

For example, sending obscene pictures via or cracking off-color jokes does not appear to be captured by our statute but they are no less a form of harassment and may even be more difficult to cope with than an outright indecent proposal. What an offender cannot do directly, he or she may accomplish indirectly through other means. The law does make mention of “an intimidating, hostile or offensive environment” independently of sexual favors.

The narrow scope of the law should lead companies to address this deficiency through its own codes of conduct.

It could be tricky as there are dangers to having too broad a definition. One would assume that it would be ok to look but not to touch. Well, in one case, a man was sentenced to 10 days in prison for sexual harassment in Italy for staring at a woman during the length of a train ride. We trust that the sight was worth the penalty.[2] One can look but not too much!

Employer’s Duty

It is the “duty of the employer or the head of the work-related, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual. Towards this end, the employer or head of office shall:

1) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor.

Said rules and regulations shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.

2) Create a committee on decorum and investigation of cases on sexual harassment. It shall conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment. (Section 4)

The employer or head can “be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken thereon.” (Section 5). This is one instance where the acts of someone else can come to haunt you or your company.

Other challenges

Harassment as defined in the Act is not that easy to establish save for an employer foolish enough to commit indiscretions in public. These are usually done on the sly. The Supreme Court has ruled that “Any employee, male or female, may charge an employer or superior with sexual harassment, but the claim must be well substantiated. DIGITEL TELECOMMUNICATIONS PHILIPPINES, INC., et al., vs. [G.R. No. 166039. June 26, 2006.].” In this case, the Court just gave no credence to, among others, the allegations of acts committed at a party where there were so many people, finding this contrary to human experience.

Once proven, however, sexual harassment can result in imprisonment of not less than 1 month nor more than 6 months, or a fine of not less than P10,000 nor more than P20,000, or both such fine and imprisonment at the discretion of the court. (Section 7) This is without prejudice to “a separate and independent action for damages and other affirmative relief.” (Section 6)

Despite the weaknesses of the law, an offended party may seek to invoke other statutes such as the provisions of the Revised Penal Code on acts of lasciviousness. Fortunately, there are other ways to seek redress whether under another law or pursuant to your employment manual.

Kelly Stabinsky, Supreme Court Answers Sexual Harassment Questions, Employer’s Duty

[2] Reuters, “What are you starin’ at?” Fri Apr 18, 2008 12:59pm EDT.