Saturday, October 25, 2008

GIVING PIECE OF MIND (Elements and Instances of Libel)

By Obiter07

Speaking your mind may not be all that it is cracked up to be, especially when it constitutes libel which is a crime under the Revised Penal Code. Commentators on television and radio, as well as columnists in the newspapers, court the risk of imprisonment for every exposé and article that they make. However, this is risk which can also be faced by you and me, for opening our mouth to say something against another. So curb that urge to share your opinion that someone is a “moron”, until you have seen what you may be up against. Getting something out into the open could result in jailtime for airtime.

What is libel? It is “a public and malicious imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead” (Article 353, Revised Penal Code).

There are essentially 4 elements, namely: (a) the allegation of a discreditable act or condition concerning (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice(Brillante vs. Court of Appeals, supra). Thus, for an imputation to be libelous, it must be defamatory, malicious, published, and the victim is identifiable (Binay vs. Secretary of Justice, G.R. No. 170643, September 8, 2006).


Examples of the first element in the Philippine setting are as follows: referring to someone as a swindler, a murderer, a bigamist, of engaging in influence peddling or accusing someone of winning elections through fraud and vote buying, of engaging in lascivious or immoral habits, of borrowing money with no intention to pay, of ordering teeth to be fixed without paying the fees for it, calling a person a bastard or a leper, a “coward, vile soul, dirty-sucker, savage hog who looks toward the ground” or a witch or a sorceress. (Reyes, The Revised Penal Code, Book II (1981), pp. 921-922 citing cases). Please note that any one of the epithets will do, you don’t have to mention all of them in one go however applicable they may all be.

In a more recent case, a journalist was found guilty of libel against a customs lawyer, for accusing him of “being involved in criminal activities” of “using his public position for personal gain,” calling him “an embarrassment to his religion, saying “ikaw na yata ang pinakagago at magnanakaw sa miyembro nito,” accusing him further of “stealing from the government with his alleged corrupt activities.” After the lawyer filed suit, he wrote to challenge the lawyer saying, “Nagalit itong tarantadong si xxx dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].” (Tulfo vs. People et al, G.R. No. 161032, September 16, 2008)


Publication is the communication of the defamatory matter to some third person or persons. This can be through writing a letter containing the defamatory imputation to a person other than the person defamed (Reyes, supra, citing People vs. Atencio, CA-G.R. Nos. 11351-R to 11353-R, December 14, 1954).

The reason for this requirement is that a communication of the defamatory matter to the person defamed cannot injure his reputation although it may wound his self-esteem. A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him (Magno vs. People, G.R. No, 133896, January 27, 2006). Having a sound reputation does pay since a scoundrel would have nothing to protect and can have no cause to complain of defamation.


Someone else must be able to tell that the libel concerns you. It is not enough if you feel alluded to. It is not sufficient that the offended party recognized himself as the person attacked or defamed; it must be shown that at least a third person could identify him as the object of the libelous publication.[1]

But you don’t have to be expressly named. Some would try to avoid prosecution by using indirect language or by means of blind items. It has been held that in order to maintain a libel suit it is essential that the victim be identifiable, although it is not necessary that he be named. It is enough if by intrinsic reference to the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the plaintiff was intended, or if he is pointed out by extraneous circumstances so that the person knowing him could and did understand that he was the person referred to.[2]


In GMA Network, Inc. vs. Bustos, G.R. No. 146848, October 17, 2006, the Court discussed two types of malice, one which may be presumed and the other which has to be proven:

Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of the imputation (malice in law). Malice, as we wrote in Brillante v. Court of Appeals, is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. Malice implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous or defamatory remarks made the same with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.”

Please note that the presumption is that every defamatory imputation is malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in cases concerning privileged communications (Article 354, Revised Penal Code). Hence, the burden of proving justifiable motive is upon the author of the libel (Daez vs. Court of Appeals, G.R. No. 47971, October 31, 1990).

But, where the communication is privileged, malice is not presumed from the defamatory words. The presumption of malice does not arise in the two cases of privileged communication, to wit:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions (Article 354, Revised Penal Code).

However, libelous remarks or comments connected with the matter privileged under the above-cited provisions, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability (Article 362, RPC). The Court in Lu Chu Sing v. Lu Tiong Gui clarified that the fact that a communication is privileged does not mean that it is not actionable; the privileged character of the communication simply does away with the presumption of malice, and the plaintiff has to prove the fact of malice in such case (Brillante vs. Court of Appeals, G.R. No. 118757 & 121571, October 19, 2004).


Why should you not give in to your impulses? If libel is committed by means writings or similar means, [3] the penalty is imprisonment ranging from 6 months and 1 day to 2 years to 11 months and 10 days or the payment of a fine ranging from 6,000 to 9,000 pesos or both imprisonment and a fine.[4] Damages may also be recovered against you by the offended party in the criminal proceeding or as a separate civil action.[5]

The fine does not seem that big but any period of incarceration is a substantial deterrent not to say something no matter how tempting it might be to do so. So the rule of thumb may be: do you really need to say it and is it worth it? You can always just think it. In the words of the Court, the “law permits us to think as badly as we please of our neighbors so long as we keep our our uncharitable thoughts to ourselves [6] It may really be wise to hold our peace and not say our piece against someone.

[1] Reyes, Ibid,. at 925, citing Kunkle vs. Cablenews-American, 42 Phil. 757.

[2] Reyes, Ibid., at 925-926, citing Corpus vs. Cuaderno, Sr., 16 SCRA 807.

[3] ARTICLE 355. Libel by means writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

[4] Reyes, Ibid., p. 1008.

[5] Article 360, Revised Penal Code and Article 33, New Civil Code.

[6] Ibid, citing People vs. Atencio. p. 824


Saturday, October 18, 2008

Releasing your Inner Angelina Jolie (The Domestic Adoption Act of 1998)

By Siesta-friendly

In orphanages everywhere, there are children longing and needing only the proper love, guidance and support to meet their full potentials. To help you on your way to loving and rearing your own Maddox or Zahara (getting your own Brad Pitt is a whole other matter), below are the pertinent information you will need.

Types of Adoption[1]

To begin, we have 3 types of adoptions. They are:

1. Agency adoption - where a licensed adoption agency finds and develops adoptive families for children who are voluntarily or involuntarily committed. The process is handled by the Department of Social Welfare and Development (DSWD) or a licensed child-placing agency. In this type of adoption, the legal rights of the child, the birth parents and the adoptive parents, are all equally protected.

2. Family or relative adoption - the biological parents make a direct placement of the child to a relative or a member of their extended family to whom they relinquish their child.

3. Private or independent adoption – where either a) a direct placement to a family known by the child’s biological parents, or b) the use of an intermediary or a go-between is made. Here, an individual knows of parents who want to have their child adopted and arranges placement to someone who wants to adopt. As there is a risk that the entire process may be merely for profit, this practice is deemed to be not in the best interests of the child nor the biological parents.

Who May Adopt

Citizens and foreigners may adopt locally although, naturally, there are added requirements for foreigners. Republic Act No. 8552 (“Domestic Adoption Act of 1988”)[2] lists the specific requirements for each:

1. Any Filipino citizen of legal age, -

1) with full civil capacity and legal rights,

2) of good moral character,

3) has not been convicted of any crime involving moral turpitude,

4) emotionally and psychologically capable of caring for children,

5) at least 16 years older than the adoptee, and

6) is in a position to support and care for his/her children in keeping with the means of the family.

The 16 year difference between the age of the adopter and adoptee may be waived when the adopter is the adoptee’s biological parent, or is the spouse of the adoptee’s parent.

2. Any alien possessing the same qualifications for Filipino nationals, plus –

1) his/her country has diplomatic relations with the Philippines,

2) he/she has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption and maintains residence until the adoption decree is entered, and

3) he/she has been certified, by his/her diplomatic or consular office or any appropriate government agency, to have the legal capacity to adopt in his/her country and that their government allows the adoptee to enter their country as his/her adopted child.

The requirements on residency and certification may be waived for the following:

1) a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or

2) one seeking to adopt the legitimate child of his/her Filipino spouse; or

3) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse;

3. The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

Incidentally, the law requires husband and wife to jointly adopt, except in the following cases:

a) if one spouse seeks to adopt the legitimate child of the other;

b) if one spouse seeks to adopt his/her own illegitimate child, but the other spouse must signify his/her consent thereto; or

c) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses. (Section 7)

Who may be adopted

Generally, only minors may be adopted. But even someone of legal age may still be adopted. Section 8 of R.A. 8552 lists the different types of adoptees:

a) Any person below 18 years who has been administratively or judicially declared available for adoption;

b) The legitimate child of one spouse by the other spouse;

c) An illegitimate child by a qualified adopter to legitimize the former;

d) A person of legal age if, prior to the adoption, has been consistently considered and treated by the adopter/s as the latter’s own child since minority;

e) A child whose adoption has been previously rescinded;

f) A child whose biological or adoptive parent/s has died, but no proceedings shall be initiated within 6 months from the time of death of said parent/s.

Required consent

It is important to note that the following need to give consent to the adoption:

a) The adoptee who is at least 10 years old;

b) The biological parent/s of the adoptee, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;

c) The legitimate and adopted children, at least 10 years old, of the adopter/s and adoptee, if any;

d) The illegitimate children, at least 10 years old, of the adopter if living with said adopter and the latter’s spouse, if any; and

e) The spouse, if any, of the person adopting or to be adopted. (Section 9)

Supporting Documents[3]

Now to the nitty-gritty. The application for adoption must be accompanied by the following:

A. Re Prospective Adoptive Parents

1. Home Study Report

No petition for adoption shall be set for hearing unless a licensed social worker of the DSWD, the social service office of the local government unit, or any child-placing or child-caring agency has submitted a case study of the adoptee, the biological parent/s, as well as the adopter/s. The study shall establish that the genuine intentions of adopter/s have been ascertained, and that the adoption is in the adoptee’s best interest. (Section 11)

2. Authenticated birth certificate;

3. Marriage Contract or Divorce, Annulment, Declaration of Nullity, or Legal Separation documents;

4. Written consent to the adoption by the legitimate and adopted children, and illegitimate children if living with the applicant, who are at least 10 years old;

5. Physical and medical evaluation by a duly licensed physician; and when appropriate, psychological evaluation;

6. NBI Clearance;

7. Latest income tax return or any other documents showing financial capability, e.g. certificate of employment, bank certificate or statement of assets and liabilities;

8. 3 character references, e.g. the local Church/Minister, the employer, and a non-relative member of the immediate community who have known the applicant/s for at least 3 years;

9. Pictures of the applicant/s and his/her immediate family taken within the last three 3 months;

10. Certificate of attendance to pre-adoption seminars.

If the applicant/s is a foreign national, the following must also be submitted:

1. Certification that the applicant/s have legal capacity to adopt in his/her country and that his/her country has a policy, or is a signatory of an international agreement, which allows a child adopted in the Philippines by its national to enter their country and permanently reside therein as his/her legitimate child.

The certification may be issued by the diplomatic or consular office or central authority on inter-country adoption or any government agency which has jurisdiction over child and family matters; or, in the absence of any of the foregoing, the Philippine Intercountry Adoption Board may also certify that the Philippines and the applicant/s’ country have an existing agreement or arrangement on inter-country adoption.

2. Certificate of Residence in the Philippines issued by the Bureau of Immigration or Department of Foreign Affairs, as appropriate;

3. 2 character references from non-relatives who knew the applicant/s in the country of which he/she is a citizen or was a resident prior to residing in the Philippines, only when the applicant has resided in the Philippines for 15 years or less;

4. Police Clearance from all places of residence in the past 2 years immediately prior to residing in the Philippines.

In the case of an applicant who is residing abroad, but is otherwise qualified to adopt, the Home Study Report shall be prepared by an accredited foreign adoption agency; but a certification from the Inter-country Adoption Board shall be required to ensure that said agency is accredited.

B. Re Prospective Adoptive Child

1. Child Study Report

As mentioned earlier, no petition for adoption shall be set for hearing unless a case study of the adoptee has been made.

In making the study, the social worker shall confirm with the Civil Registry the adoptee’s real identity and registered name. If adoptee’s birth was not registered with the Civil Registry, it shall be the social worker’s responsibility to ensure that the adoptee is registered.

The study shall establish that adoptee is legally available for adoption, that the documents to support this fact are valid and authentic and that the adoption is in the adoptee’s best interest. (Section 11)

2. Authenticated birth certificate or foundling certificate, when appropriate

3. Written consent to adoption by the biological parent/s or the legal guardian and the written consent of the child if at least 10 years old, signed in the presence of the social worker of the DSWD or child caring agency after proper counseling

In the matter of counseling, the law requires the DSWD to provide the services of licensed social workers to the following:

a) the biological parent/s before and after adoptee’s birth.

No binding commitment to an adoption plan shall be permitted before adoptee’s birth. A 6-month period is allowed for the biological parent/s to reconsider any decision to relinquish the child for adoption before the decision becomes irrevocable. Counseling and rehabilitation services shall also be offered to the biological parent/s after he/she has relinquished the child for adoption.

The DSWD shall take steps to ensure that no hurried decisions are made and all alternatives for the child’s future and the implications of each alternative have been provided.

b) prospective adoptive parent/s in the form of counseling sessions, adoption fora and seminars, among others, to resolve possible adoption issues and to prepare him/her for effective parenting

c) prospective adoptee via counseling sessions to ensure that he/she understands the nature and effects of adoption and is able to express his/her views on adoption in accordance with his/her age and level of maturity. (Section 4)

4. Death Certificate of biological parents, Decree of Abandonment or Deed of Voluntary Commitment, as appropriate

5. Medical evaluation of the child and his/her parent/s, if available;

6. Psychological evaluation, when appropriate; and

7. Picture of adoptee.


The process can be tedious – from counseling, to filing the application, to undergoing the case study, and to going through a court case. Again, the requirements are meant to ensure the adoption is for the child’s best interests.

1. The application procedure begins with -

1) Attending adoption seminars. The DSWD conducts seminars and counseling sessions to achieve the following:[5]

i) Disseminating basic information about adoption including the process, procedures and effects of adoption;

ii) Informing them of the general background of children in need of adoptive homes including children with special needs;

iii) Developing a respect for the child’s biological origin and an awareness of the importance of telling the child that he/she is adopted;

iv) Providing a support group for adopter/s for sharing their adoption experiences.

A certificate shall be issued by the DSWD to the prospective adoptive parents attesting that they have undergone pre-adoption services. The certificate shall be made a pre-requisite of the home study and must be secured prior to filing of the application to adoption.

2) Filling up the DSWD application form.

2. Next comes the preparation of the Home Study Report, when -

1) the prospective adoptive parent/s are interviewed and visited by the social worker;

2) recommendations are made by the social worker; and

3) the required supporting documents of the adoptee and the prospective adoptive parent/s are submitted.

3. The decision is then made to approve or disapprove a child for adoption, and if approved, a Certificate of Availability of Child for Adoption is then issued.

4. The adoptee and adopter/s are then matched. The child is paired with a family based on the child’s needs and his capacity to benefit from the placement as well as the capacity and interest of the adoptive parents to his/her needs.

5. Then the Supervised Trial Custody is allowed. The social worker conducts monthly home visits to the family immediately after the placement of the child to the adoptive family and submits a report to the DSWD.

No petition for adoption shall be finally granted until the adopter/s has been given by the court a supervised trial custody period for at least 6 months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter/s. (Section 12)

6. Based on a favorable recommendation by the social worker, the DSWD issues a written consent to the adoption.

7. The adopter/s are then free to file a Petition for Adoption. The order of hearing is first published in a newspaper. Then the court hearings begin.

8. If there is no opposition to the petition, and after evaluating the case studies, the qualifications of the adopter/s, trial custody report and evidence submitted, and the court is convinced that the petitioners are qualified to adopt and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered effective as of the date the petition was filed. The same holds true in case the adopter/s dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child is to be known. (Section 13)

9. A new certificate of birth is issued by the Civil Registry attesting to the fact that the adoptee is the child of the adopter/s by being registered with his/her surname. The original certificate of birth shall be stamped “cancelled” with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry records. The new birth certificate shall not bear any notation that it is an amended issue. (Section 14)

Effects of Adoption

Unless the biological parent is the spouse of the adopter, all legal ties between the biological parent/s and the adoptee are severed and the same are vested on the adopter/s. (Section 16)

The adoptee is deemed the legitimate child of the adopter/s for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate children. (Section 17) Thus, in legal and intestate succession, the adopter/s and the adoptee have reciprocal rights of succession as legitimate parent/s and child.

Yes, there’s a lot to take in. It won’t hurt to merely explore the possibilities. Just attend a pre-adoption seminar. No commitments are required.

[1] Local Adoption: Requirements and Procedures. Retrieved October 7, 2008, from Department of Social Welfare and Development Web site:

[2] “An Act Establishing The Rules And Policies On The Domestic Adoption Of Filipino Children And For Other Purposes”, February 25, 1998

[3] Requirements / Supporting Documents. >Retrieved October 9, 2008, from Department of Social Welfare and Development Web site: http://

[4] Local Adoption: Process/ Procedure. Retrieved October 8, 2008, from Department of Social Welfare and Development Web site:

[5] Pre- Adoption Services. Retrieved October 9, 2008, from Department of Social Welfare and Development Web site: http://


Saturday, October 11, 2008

DOCTOR SAN (Of Foreign nationals practicing their professions in the Philippines)

By Obiter07

Under the Constitution[1] and as implemented in the Foreign Negative List periodically issued by the executive branch, the practice of professions is generally reserved only to Filipinos.

As provided in Executive Order No. 584 “Promulgating The Seventh Regular Foreign Investment Negative List”, the following professions are reserved only to Filipino citizens unless otherwise prescribed by law:

a) Engineering: i. Aeronautical; ii. Agricultural; iii. Chemical; iv. Civil; v. Electrical vi. Electronics and Communication; vii. Geodetic; viii. Mechanical; ix. Metallurgical x. Mining; xi. Naval Architecture and Marine; xii. Sanitary;

b) Medicine and Allied Professions: i. Medicine; ii. Medical Technology; iii. Dentistry iv. Midwifery; v. Nursing; vi. Nutrition and Dietetics; vii. Optometry; viii. Pharmacy ix. Physical and Occupational Therapy; x. Radiologic and X-ray Technology; xi. Veterinary Medicine;

c) Accountancy; d) Architecture; e) Criminology; f) Chemistry; g) Customs Brokerage h) Environmental Planning; i) Forestry; j) Geology; l) Landscape Architecture; m) Law; n) Librarianship; o) Marine Deck Officers; p) Marine Engine Officers; q) Master Plumbing; r) Sugar Technology; s) Social Work; t) Teaching; u) Agriculture and v) Fisheries.

How foreigners can practice their professions here

But there is no absolute prohibition against foreigners practicing a profession in the Philippines. In fact, Republic Act No. 5181 (“An Act Prescribing Permanent Residence And Reciprocity As Qualifications For Any Examination Or Registration For The Practice Of Any Profession In The Philippines”), a statute dating way back to 1967, sets the conditions that will allow foreigners to come and practice their professions here:

SECTION 1. No person shall be allowed to practice any profession in the Philippines unless he has complied with the existing laws and regulations, is a permanent resident therein for at least three years, and, if he is an alien, the country of which he is a subject or citizen permits Filipinos to practice their respective professions within its territories: Provided, That the practice of said professions is not limited by law to citizens of the Philippines: Provided, further, That Filipinos who became American nationals by reason of service in the Armed Forces of the United States during the Second World War and aliens who were admitted into the practice of their profession before July 4, 1946 shall be exempted from the restriction provided herein.”

Hence, compliance with Philippine requirements, residency and there being no statutory bar to it, will allow a foreigner to validly practice a profession in the country.

Decided Case

In a recent case, the Supreme Court categorically stated that a Japanese may practice medicine in the Philippines. Dr. Yasuyuki Ota is a Japanese national, married to a Filipina, who has been a resident of the country for over ten years. He completed his medical studies in a Philippine school and completed internship training in a local facility as well. When he applied for medical board examinations, he was asked by the Professional Regulation Commission (PRC) to submit an affidavit of undertaking that should he pass, “he would not practice medicine until he submits proof that reciprocity exists between Japan and the Philippines in admitting foreigners into the practice of medicine.”

After passing, the Board of Medicine (Board) of the PRC, in a letter dated March 8, 1993, denied his request for a license to practice medicine in the Philippines, stating that the Board “believes that no genuine reciprocity can be found in the law of Japan as there is no Filipino or foreigner who can possibly practice there.”

The Supreme Court held that R.A. No. 2382, otherwise known as the “Medical Act of 1959”, states in Section 9 that candidates for the Board examinations be “a citizen of the Philippines or a citizen of any foreign country who has submitted competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his country’s existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof; x x x”. (Underscoring supplied)

In turn, Presidential Decree (P.D.) No. 223 also provides:

“j) The [Professional Regulation] Commission may, upon the recommendation of the Board concerned, approve the registration of and authorize the issuance of a certificate of registration with or without examination to a foreigner who is registered under the laws of his country: Provided, That the requirement for the registration or licensing in said foreign state or country are substantially the same as those required and contemplated by the laws of the Philippines and that the laws of such foreign state or country allow the citizens of the Philippines to practice the profession on the same basis and grant the same privileges as the subject or citizens of such foreign state or country: Provided, finally, That the applicant shall submit competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his country’s existing laws permit citizens of the Philippines to practice the profession under the rules and regulations governing citizens thereof. The Commission is also hereby authorized to prescribe additional requirements or grant certain privileges to foreigners seeking registration in the Philippines if the same privileges are granted to or some additional requirements are required of citizens of the Philippines in acquiring the same certificates in his country; xxx” (Underscoring supplied)

Dr. Ota had submitted a copy of the Medical Practitioners Law of Japan, duly authenticated by the Consul General of the Embassy of the Philippines in Japan, which states that a medical practitioner only needs to pass the national examinations in order to practice there and that these can be taken even by graduates of a foreign medical school.

It was argued that “while the Medical Practitioners Law of Japan allows foreigners to practice medicine therein, said document does not show that conditions for the practice of medicine in said country are practical and attainable by a foreign applicant; and since the requirements are practically impossible for a Filipino to comply with, there is no reciprocity between the two countries, hence, respondent may not be granted license to practice medicine in the Philippines.”

The Court did not agree and stated that “Nowhere in said statutes is it stated that the foreign applicant must show that the conditions for the practice of medicine in said country are practical and attainable by Filipinos. Neither is it stated that it must first be proven that a Filipino has been granted license and allowed to practice his profession in said country before a foreign applicant may be given license to practice in the Philippines xxx”

The Court further held:

While it is true that respondent failed to give details as to the conditions stated in the Medical Practitioners Law of Japan xxx – respondent, however, presented proof that foreigners are actually practicing in Japan and that Filipinos are not precluded from getting a license to practice there

Respondent presented before the trial court a Japanese Government publication, Physician-Dentist-Pharmaceutist Survey, showing that there are a number of foreign physicians practicing medicine in Japan. He also presented a letter dated January 28, 1992 from Consul General Yabes, which states:

“S i r :

With reference to your letter dated 12 January 1993 xxx inquiries from the Japanese Ministry of Foreign Affairs, Ministry of Health and Welfare as well as Bureau of Immigration yielded the following information:

1. They are not aware of a Filipino physician who was granted a license by the Japanese Government to practice medicine in Japan;

2.However, the Japanese Government allows a foreigner to practice medicine in Japan after complying with the local requirements such as holding a valid visa for the purpose of taking the medical board exam, checking the applicant’s qualifications to take the examination, taking the national board examination in Japanese and filing an application for the issuance of the medical license.

Accordingly, the Embassy is not aware of a single Filipino physician who was issued by the Japanese Government a license to practice medicine, because it is extremely difficult to pass the medical board examination in the Japanese language. Filipino doctors here are only allowed to work in Japanese hospitals as trainees under the supervision of a Japanese doctor. On certain occasions, they are allowed to show their medical skills during seminars for demonstration purposes only. (Emphasis supplied) xxx“

The Court found that from “said letter, one can see that the Japanese Government allows foreigners to practice medicine therein provided that the local requirements are complied with, and that it is not the impossibility or the prohibition against Filipinos that would account for the absence of Filipino physicians holding licenses and practicing medicine in Japan, but the difficulty of passing the board examination in the Japanese language. Granting that there is still no Filipino who has been given license to practice medicine in Japan, it does not mean that no Filipino will ever be able to be given one.”

Subject to the requirements, we might yet see doctors of differing nationalities practicing in the country. Which could be well and good, considering the rate at which our doctors and other medical practitioners leave our shores for greener pastures. The healing hands we go to may sadly be no longer Filipino.

[1] SECTION 14. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law. (Art. XII, Constitution)


Saturday, October 4, 2008

Not So Bon Voyage (Breach of Airline Contract of Carriage)

By Siesta-friendly

What is the extent of an airline carrier’s liability in the event of breach in its contract of carriage with a passenger? It depends. As there are many instances of possible breach, lifting case samples seems the best way to explain these. Below are a few of the latest jurisprudence on the matter.

When a contract of carriage arises

The general rule is that “when an airline issues a ticket to a passenger confirmed on a particular flight, on a certain date, a contract of carriage arises, and the passenger has every right to expect that he would fly on that flight and on that date. If he does not, then the carrier opens itself to a suit for breach of contract of carriage.”[1]

J.S. obtained an emergency U.S. visa to undergo surgery to donate his kidney to his ailing cousin already confined in a California hospital. J.S. purchased a round trip plane ticket from Japan Airlines (JAL). He was scheduled to leave for California via Narita, Japan. On the date of his flight, J.S. went to the airport and after his plane ticket, boarding pass, travel authority and personal articles were subjected to rigid immigration and security routines, he was allowed to board.

While inside the airplane, as JAL’s airline crew were unfamiliar with J.S.’s emergency U.S. visa, they accused him of carrying a falsified travel document and claimed he would not really go to the U.S. but actually intended to stay and work in Japan. They did these by shouting at, and, being arrogant towards, J.S. J.S. denied the claims and even pleaded to be closely monitored when the aircraft stops over in Narita. His pleas were ignored and, humiliated, he was forced to disembark. The plane left without him and his U.S. visa was later cancelled.

In granting moral and exemplary damages in favor of J.S., the Supreme Court held that (1) in “an action for breach of contract of carriage, all that is required of plaintiff is to prove the existence of such contract and its non-performance by the carrier through the latter’s failure to carry the passenger safely to his destination”; (2) under Art. 2220 of the Civil Code, moral damages may be awarded for “breaches of contract where the defendant acted fraudulently or in bad faith”; and (3) exemplary damages, which “are awarded by way of example or correction for the public good, may be recovered in contractual obligations if defendant acted in wanton, fraudulent, reckless, oppressive, or malevolent manner”.

J.S. had complete travel documents and in fact was already allowed to board and be seated. When JAL personnel summarily and insolently ordered him to disembark to again verify his travel documents and accused him of working in Japan on the pretext of going to the U.S. despite valid and verified travel documents, JAL breached the contract of carriage in bad faith justifying the grant of moral damages at P500,000,00.

In justifying exemplary damages at P100,000,00, the Court said - “Passengers have a right to be treated by the carrier’s employees with kindness, respect, courtesy and due consideration and are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees.”

The Court also granted attorney’s fees at P200,000,00 noting that “they may be awarded when defendant’s act or omission has compelled plaintiff to litigate with third persons or to incur expenses to protect his interest” and that although such “amount is actually discretionary upon the Court … it may be recovered as actual or compensatory damages when exemplary damages are awarded and whenever the court deems it just and equitable.”

Lastly but equally important, the Court also held that “the power to admit or not an alien into the country is a sovereign act [in this case by the U.S.] which cannot be interfered with even by JAL.”[2]

Of course, the above rule, like all general rules, has exceptions and you can still be denied your flight even with a valid ticket, say, if you provide contributory fault or negligence, like joking about a bomb (Presidential Decree No. 1727 penalizes the “Making Of Any Threat Concerning Bombs, Explosives Or Any Similar Device Or Means Of Destruction” with a maximum of 5 years imprisonment)[3].

Civil Code vs. Treaty

No, not that the Civil Code trumps an international treaty (in this case, the Warsaw Convention of 1929 as amended by the Montreal Convention of 1999), only that there are claims recoverable under the Civil Code which are not covered by the treaty.

S.G. and his friends were to attend a golf tournament in Jakarta. They bought their tickets from Philippine Airlines (PAL) with the itinerary: Manila-Singapore-Jakarta-Singapore-Manila. PAL told them that its plane would take them from Manila to Singapore, while Singapore Airlines (SIA) would take them from Singapore to Jakarta. S.G. and co. took the PAL flight to Singapore. Upon arrival, they went to the SIA office to check-in for their next flight to Jakarta. However, SIA rejected their tickets explaining they were not endorsed by PAL and that if SIA honored the tickets without endorsement, PAL would not pay SIA for their passage. S.G. tried to contact PAL’s office at the airport but it was closed.

S.G. and co. were forced to purchase tickets from Garuda Airlines and boarded its last flight for Jakarta. When they arrived in Jakarta, their welcoming party had already left and they had to arrange for their hotel transportation at a very late hour. S.G. later became ill and was unable to participate in the tournament.

3 years later and unsuccessful with his demand letters to PAL and SIA, S.G. filed a Complaint for Damages for having been subjected to “humiliation, embarrassment, mental anguish, serious anxiety, fear and distress”. PAL filed a Motion to Dismiss since the case was filed beyond the 2-year limit under the Warsaw Convention. Article 19 of the Convention covers a carrier’s liability for damages due to delay in passenger transportation while Article 29 limits the right to damages to within 2 years from the date on which the carriage stopped.

In denying PAL’s Motion to Dismiss, the Court held that “the Warsaw Convention does not “exclusively regulate” the relationship between passenger and carrier on an international flight.” The Court cited United Airlines v. Uy (G.R. No. 127768 November 19, 1999) which distinguished between 1) damage to a passenger’s baggage and 2) his humiliation at the hands of an airline’s employees. There, the Court held that the first cause of action was covered by the Warsaw Convention which prescribes in 2 years, while the second was covered by the provisions of the Civil Code on torts, which prescribes in 4 years. And so the Court held that S.G’s Complaint for Damages was covered by the Civil Code and was not yet barred under its provisions.[4]

It remains to be seen whether S.G. will make any recovery, but his complaint was allowed to proceed notwithstanding the provisions of the convention.

One Trip, multiple legs

Which carrier is responsible when a passenger’s travel has several legs serviced by different airlines?

G.M. decided to visit his relatives in Bombay and bought a ticket from British Airways (BA) with the following itinerary: Manila-HK-Bombay-HK-Manila. Since BA had no direct flights from Manila to Bombay, G.M. had to take the Manila to Hongkong flight via PAL.

At the PAL counter, G.M. checked in 2 pieces of luggage. When G.M. arrived in Bombay, his luggage was missing and was told by BA that the same might have been diverted to London. After waiting for 1 week, G.M. filed a claim for his lost baggage. Back in the Philippines, G.M. filed a complaint for damages and attorney’s fees against BA prompting the latter to disclaim liability and file a third-party complaint against PAL.

Although the Court allowed BA’s third-party complaint against PAL for the latter’s negligence re G.M.s luggage, it upheld previous decisions stating that “carriage by plane although performed by successive carriers is regarded as a single operation and that the carrier issuing the passenger’s ticket is considered the principal party and the other carrier merely subcontractors or agent”. Since the G.M. petition was based on breach of contract of carriage, he could only sue BA alone, and not PAL, the latter not being a party to the contract. However, with BA’s third-party complaint, PAL is not relieved from any liability to BA due to its negligent act.[5]

We note that in granting G.M.’s claim for actual, moral and exemplary damages for the lost luggage beyond the limit provided by the Warsaw Convention, the Court found that during presentation of evidence at trial, BA failed to object to testimony and evidence presented by G.M. regarding his claims. The Court said that “it is a well-settled doctrine that where the proponent offers evidence deemed by … the adverse party to be inadmissible for any reason, the latter has the right to object. However, such right is a mere privilege which can be waived. Necessarily, the objection must be made at the earliest opportunity, lest silence when there is opportunity to speak may operate as a waiver of objections.” Due to BA’s silence at trial, the Court granted G.M. actual (P7,000.00), moral and exemplary damages (P50,000.00) and 20% of the total amount granted as attorney’s fees, on top of the $400.00 limit under the Warsaw Convention.

Who declines an upgrade?

A fool, you’d think; if it’s at all possible that someone would decline a godsend. Well, not only is it possible, it’s happened.

Spouses V are frequent flyers of Cathay Pacific (“Cathay”). They, together with their maid and 2 friends went to Hong Kong. On their flight back to Manila, they and their 2 friends were booked on the Business Class. But prior to departure, Sps. V were informed that they would be upgraded to First Class. Sps. V refused the upgrade, reasoning that it would not look nice for them as hosts to travel in First Class and their guests, in the Business Class; plus, they were going to discuss business matters during the flight. They asked that other passengers be instead transferred to First Class.

However, Cathay personnel insisted saying the Business Class was already overbooked and if Sps. V continued to refuse, they would not be allowed to take the flight. Sps. V had to agree. But upon their arrival, Sps. V demanded from Cathay that they be indemnified for the “humiliation and embarrassment” regarding the upgrade incident.

In upholding the spouses’ claim of breach of contract of carriage, the Supreme Court held that priority upgrading is a privilege which, like all privileges, can be waived. So when the spouses declined to accept the upgrade and Cathay still insisted on the same, Cathay breached its contract of carriage. However, the Court found that although Cathay may have exercised poor judgment, there was no evidence of bad faith nor fraud, neither in Cathay’s insistence on the upgrade nor in the act of overbooking (as the latter did not exceed 10% of seating capacity pursuant to law).

Thus, the Court denied the claim for moral and exemplary damages both of which required the existence of bad faith or fraud. Attorney’s fees in favor of the spouses were also denied. But the Court granted nominal damages at P5,000.00 pursuant to Article 2221 of the Civil Code which provides: “Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him”.[6] At P5,000.00, the Court obviously thought the upgrade was not much of a damage.

Lost luggage

We’ve discussed liability to a passenger beyond the Warsaw Convention. How about liability for lost luggage beyond the limits provided in the Warsaw Convention? In the case below, the luggage was returned to complainant but months after her scheduled conference for which the documents in her lost luggage were essential.

F.P. was an associate professor invited to take part in an international meeting in Italy to make a scientific presentation. She arrived in Italy via Alitalia but told there that her luggage was delayed and is in a succeeding flight. Her luggage included her scientific papers, slides and other research material. But the next flights did not have her luggage.

Despite her personal efforts to locate the luggage herself, the same could not be found and she returned to Manila without attending the meeting. Once back in Manila she demanded that Alitalia make reparation for the damages she suffered. The luggage was eventually returned to F.P. but 11 months later and 4 months after filing her case.

Although the Court found no bad faith or improper conduct on the part of Alitalia and no damage to the luggage occurred, it nevertheless found Alitalia to be in breach of contact and was entitled to nominal damages “which, as the law says, is adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated and recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered”. Nominal damages were set at P40,000 and attorney’s fees at P5,000.00.[7]

Indemnity based on life expectancy

We’d rather not discuss the incident which can give rise to this issue but we also believe that it can be informative to discuss this topic.

Philippine Air Lines (PAL) Starlight Flight No. 26 left loilo for Manila. It did not reach its destination but crashed on Mt. Baco, Mindoro. Among the fatalities was N.P., 29 years old, single, a lawyer, President and General Manager of the Padilla Shipping Co., Inc. and Vice-President and Treasurer of the Allied Overseas Trading Co., Inc. The plane crashed in 1960.

In 1973, the trial court awarded damages in favor of N.P.’s sole heir, his mother, as follows: P477,000.00 as award for N.P.’s expected income; P10,000.00 as moral damages; P10,000.00 as attorney’s fees; with costs against PAL. In 1980, the Court of Appeals affirmed the trial court’s decision. On appeal to the Supreme Court, PAL claimed that damages, pursuant to U.S. jurisprudence, should be computed based on “the life expectancy of the deceased or of the beneficiary, whichever is shorter”. The Court held that even in the absence of law or jurisprudence, foreign jurisprudence is only persuasive.

And there are existing Civil Code provisions applicable in this case:

Art. 1764 provides that “Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a common carrier.“

Art. 2206 provides that “[t]he amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos [now 100,000.00], even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;…”

Thus, the Court affirmed the trial court’s decision with a slight correction in the computation awarding P417,000 instead of P477,000. Fortunately too, the Court took note of the 16-year delay in the disposition of this case caused by PAL’s multiple appeals. N.P.’s mother had in fact died waiting for the final judgment. Accordingly, the Court awarded legal interest of 6% per annum from the date of the judgment on August 31, 1973, until it full payment. Costs against PAL.

Here’s to each of your travels being a bon voyage.

[1] Alitalia Airways vs. Court of Appeals, et al, G.R. No. 77011, July 24, 1990.

[2] Japan Airlines vs. Jesus Simangan, G.R. No. 170141, April 22, 2008.

[3] October 8, 1980.

[4] Philippine Airlines, Inc. vs. Hon. Adriano Savillo, Presiding Judge of RTC Branch 30, et al., G.R. No. 149547, July 04, 2008.

[5] British Airways vs. Court Of Appeals, et al., G.R. No. 121824, January 29, 1998.

[6] Cathay Pacific Airways, Ltd., vs. Spouses Daniel Vazquez And Maria Luisa Madrigal Vazquez, G.R. No. 150843, March 14, 2003.

[7] Alitalia vs. Intermediate Appellate Court, et al., G.R. No. 71929. December 4, 1990.